State v. Rutherford

• Decision Date: 05 March 1924
• Docket Number: 27.
• Citation: 125 A. 725,145 Md. 363
• Parties: STATE EX REL. MAYOR AND CITY COUNCIL OF CITY OF BALTIMORE ET AL. v. RUTHERFORD.
• Court: Maryland Court of Appeals

125 A. 725

145 Md. 363

STATE EX REL. MAYOR AND CITY COUNCIL OF CITY OF BALTIMORE ET AL. v. RUTHERFORD.

No. 27.

Court of Appeals of Maryland

March 5, 1924

"To be officially reported."

Petition by the State of Maryland, on the relation of the Mayor and City Council of the City of Baltimore and the Board of Zoning Appeals for Baltimore, for writ of certiorari to be directed to the Baltimore City Court, opposed by Isabella Rutherford. Petition dismissed.

Argued before BOYD, C.J., and THOMAS, URNER, ADKINS, OFFUTT, and DIGGES, JJ.

A Walter Kraus, Asst. City Sol., of Baltimore (Philip B Perlman, City Sol., of Baltimore, on the brief), for appellant.

E Ridgely Simpson, of Baltimore, for appellee.

DIGGES J.

This is a petition by the mayor and city council of Baltimore city and the board of zoning appeals of Baltimore city to this court, praying that a writ of certiorari might be issued directed to the Baltimore city court, commanding it to certify and return to this court all of the records of the proceedings in the case therein pending entitled "Isabella Rutherford v Mayor and City Council and the Board of Zoning Appeals of Baltimore City," to the end that this court may determine whether the said Baltimore city court has exceeded its jurisdiction, or is proceeding in a manner not authorized or warranted by law in said case, and that all proceedings in that court may be stayed until the hearing and determination upon this writ.

The said petition is verified by affidavit and sets out substantially the following facts: The mayor and city council of Baltimore, on May 19, 1923, enacted and approved Ordinance No. 922, commonly called the "Zoning Ordinance," pursuant to the police power conferred upon the said mayor and city council, and because it was deemed necessary, in order to protect and promote the public health, safety, and general welfare, as set forth in the preamble of said ordinance.

For the purposes sought to be accomplished, section 2 of said ordinance divides the city of Baltimore into four classes of "use districts," designated as (a) residence districts, (b) first commercial district, (c) second commercial district, and (d) industrial districts; said districts being shown on the use district map made a part of said ordinance.

Section 3 (a) of said ordinance prohibits the use of any building or land, situated in the districts designated residence districts, for garage purposes, unless said garage is an "accessory garage," within the meaning of section 3 (b) of said ordinance, or unless said garage is an "apartment garage," and complies with the conditions specified in section 3 (a-10) of said ordinance.

Section 21 provides that the said ordinance shall be enforced by the inspector of buildings, who is designated as the zoning commissioner, and, further, that the said zoning commissioner shall issue no permit for the construction or alteration of any building or part thereof, unless the specifications and intended use of such building conform in all respects with the provisions of said ordinance.

By section 22 (a), there is established a board of zoning appeals, consisting of the chief engineer of Baltimore city, the commissioner of health of Baltimore city, the president of the board of fire commissioners of Baltimore city, and four other members, to be appointed by the mayor, two of which said four members, to be so appointed, are required to possess certain qualifications prescribed by said ordinance.

Section 7 of said ordinance empowers the board of zoning appeals in appropriate cases, after public notice and hearing, and subject to appropriate conditions and safeguards, to determine and vary the "use districts" legally established by the ordinance.

Section 22 (f) of said ordinance authorizes and empowers the board of zoning appeals to reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination of the zoning commissioner, and to that end confers upon the board of zoning appeals all of the powers of the zoning commissioner.

Section 22 (c) of said ordinance provides that any person or persons who may be dissatisfied with any order, decision, or determination of said board of zoning appeals, in which he or they are in any manner interested, may, within 10 days after the date of said decision, appeal therefrom by petition to the Baltimore city court, praying said court to review the same, and thereupon said court shall pass an order setting said appeal for a hearing within 10 days from the date of the filing of said appeal, and requiring the board of zoning appeals to produce in said court, on the day fixed for said hearing, all papers, documents, or memoranda relating to said order, decision, or determination from which said appeal is prayed, and the said Baltimore city court shall hear said case de novo, and pass such order in the premises as it may deem right and proper. Such appeal to the Baltimore city court may also be taken by an officer, department, board, or bureau of the municipality within 10 days, as above provided.

After the passage of said zoning ordinance, to wit, on the 8th day of June, 1923, Isabella Rutherford applied to the zoning commissioner of Baltimore city to erect an accessory garage and an addition to an existing apartment garage, in the rear of her premises, 3118 Presbury street in Baltimore city, state of Maryland; the said premises being in a residence district, as defined in said ordinance, and laid out and designated upon the said use district map. Protest being filed against the issuance of such permit, the same was refused by the zoning commissioner, and an appeal was thereupon taken from his decision to the board of zoning appeals. The said board of zoning appeals after due hearing affirmed the decision of the zoning commissioner; whereupon the said Isabella Rutherford filed a petition for review of said decision in the Baltimore city court, in which petition was incorporated a prayer for a jury trial. The relators filed an answer to said petition, as well as a motion to strike out the prayer for jury trial.

On the 24th day of October, 1923, the Baltimore city court overruled the motion of said relators to strike out the prayer for jury trial, and held that the respondent was entitled to have the decision of the board of zoning appeals reviewed by that court with the aid of a jury. The relators alleged in the petition to this court that, in awarding the jury trial to the respondent, the Baltimore city court transcended its jurisdiction, and is proceeding in a manner not authorized or warranted by law, and that unless this court will intervene in the premises and by its writ of certiorari require the Baltimore city court to transmit the record of its proceedings to this court, for the...