Tighe v. Osborne

Citation133 A. 465,150 Md. 452
Decision Date08 April 1926
Docket Number46.
CourtCourt of Appeals of Maryland

Appeal from Baltimore City Court; Eli Frank, Judge.

Petition for mandamus by Mary G. Tighe against Charles H. Osborne Inspector of Buildings for Baltimore City. Judgment for defendant, and petitioner appeals. Affirmed.

Digges and Parke, JJ., dissenting.


C Arthur Eby and James E. Tippett, both of Baltimore, for appellant.

Philip B. Perlman, City Sol., and Wirt A. Duvall, Jr., Deputy City Sol., both of Baltimore (George E. Kieffner, Asst. City Sol of Baltimore, on the brief), for appellee.


This appeal involves the question of the constitutionality of Ordinance No. 522 of the mayor and city council of Baltimore, which ordinance undertakes to regulate the issuance of "use" permits in Baltimore city for structures to be used for other than residential purposes.

A case between the same parties was before this court at the October term (see Tighe v. Osborne, 149 Md. 349, 131 A. 801), and we then decided that the ordinance involved in that case, which dealt with the same matter, was unconstitutional, and the case was remanded for further proceedings. Mrs. Tighe, the appellant in both cases, thereupon renewed her application for a building permit to erect a stable for 30 horses on Cokesbury avenue in Baltimore, and, upon her application being refused because of her failure to apply for and secure a "use" permit, she again filed a petition in the Baltimore city court asking that a mandamus issue compelling the inspector of buildings for Baltimore city, the appellee, to give her a building permit. The answer of the inspector set up as a defense the failure of Mrs. Tighe to comply with the provisions of Ordinance No. 522, regulating "use" permits, which was approved by the mayor and city council of Baltimore on December 14, 1925, just four days after the first case of Tighe v. Osborne, supra, was decided, and to this answer the petitioner demurred on the ground that the ordinance was unconstitutional and void. The lower court overruled the demurrer, and, upon Mrs. Tighe declining to plead further, judgment was rendered in favor of the defendant, the inspector of buildings, and from this judgment the petitioner has appealed. As the only difference between the present case and the first case between these parties is to be found in the two ordinances, we think the foregoing statement of the facts and circumstances sufficient, and we will accordingly proceed to a consideration of these ordinances. The ordinance in the first case was known as Ordinance No. 334, and its chief provisions will be found set out in the opinion in that case. Tighe v. Osborne, supra. It was held invalid because of the provisions attempting to give the zoning commissioner the power to refuse to grant a permit for a building to be used for any purpose other than a residence, where, in his judgment, the use to which such building was to be put or its location "would, in any way, menace the public welfare." In the course of the opinion, which was delivered by Judge Offutt, the court, after discussing generally the police power, and calling attention to the use of the phrase "general welfare," in many definitions of the power, said:

"But the police power, even as thus defined, vague and vast as it is, has its limitations, and it cannot justify any act which violates the prohibitions, express or implied, of the state or federal Constitutions. Byrne v. Md. Realty Co., 129 Md. 210, 98 A. 547, L. R. A. 1917A, 1216; Goldman v. Crowther, 147 Md. 293, 128 A. 55, 38 A. L. R. 1455. If this were not so, and if the police power were superior to the Constitution, and if it extended to all objects which could be embraced within the meaning of the words 'general welfare,' as defined by the lexicographers, the Constitutions would be so much waste paper, because no right of the individual would be beyond its reach, and every property right and personal privilege and immunity of the citizen could be invaded at the will of the state, whenever in its judgment the convenience, prosperity, or mental or physical comfort of the public required."

And further on it was said that--

"Such a grant of power is in our opinion arbitrary and in conflict with both of the constitutional guaranties referred to above [article 23, Bill of Rights, and section 40 of article 3 of the Constitution of Maryland], because it commits to the arbitrary discretion of subordinate officials the power of depriving the citizen of his property without compensation by taking from him the beneficial use thereof, regardless of whether such deprivation is required for the protection of the public order, security, health, or morals."

It was accordingly decided in that case that Ordinance No. 334 under which the zoning commissioner could refuse to issue permits, if "in his judgment, after investigation, the proposed buildings or structures, use or changes of use, would create hazards from fire or disease, or would in anyway menace the public welfare, security, health, or morals," was invalid, because the attempted delegation of the power to determine what structures or uses of them might affect the "public welfare" was, standing by itself, too broad and indefinite. The ordinance in the present case contains no reference to "public welfare"; it omits entirely subsection E of section 3, to which special objection was found by the court in the previous case, and there are several other changes which will be adverted to later on in this opinion. The part with which we are now concerned provides that the zoning commissioner can refuse to issue permits, if "the proposed buildings or structures, use or changes of use, would create hazards from fire or disease, or would menace the public security, health, or morals," and the chief question to be determined in this appeal is whether this delegation or power by the mayor and city council of Baltimore to the zoning commissioner is valid. In Tighe v. Osborne, supra, after discussing generally the police power and the frequency with which the courts have had to deal with it, we said:

"While that mass of litigation has resulted in no single comprehensive definition of the power so far as it is applicable to cases like this one, which has been universally accepted, by the weight of authority it has been given a meaning narrower than that first stated, which is, we think, fairly expressed by the following formula, which is that the police power is the power inherent in the state to prescribe within the limits of the federal and state Constitutions reasonable regulations necessary to preserve the public order, health, safety, or morals."

Applying this formula to the delegation of power contained in the ordinance now before us, we find that we are not required to pass upon any novel or doubtful application of the police power. In fact, the language of this part of the ordinance ("aside from the words 'hazards from fire or disease' which are really covered by the terms 'public security and health' "), is almost identical with the language of the formula, and it cannot now be doubted that this language correctly designates objects to which it is universally conceded the police power applies. Boehm v. Baltimore, 61 Md. 259; Deems v. Baltimore, 80 Md. 164, 30 A. 648, 26 L. R. A. 541, 45 Am. St. Rep. 339; State v. Broadbelt, 89 Md. 565, 43 A. 771, 45 L. R. A. 433, 73 Am. St. Rep. 201; State v. Hyman, 98 Md. 596, 57 A. 6, 64 L. R. A. 637, 1 Ann. Cas. 742; Bostock v. Sams, 95 Md. 400, 52 A. 665, 59 L. R. A. 282, 93 Am. St. Rep. 394; Brown v. Stubbs, 128 Md. 129, 97 A. 227; Byrne v. Md. Realty Co., 129 Md. 210, 98 A. 547, L. R. A. 1917A, 1216; Goldman v. Crowther, 147 Md. 282, 128 A. 50, 38 A. L. R. 1455; Tighe v. Osborne, supra; 12 C.J. 913, 916, 918. And, as Baltimore city, under its charter, has the right to exercise within the limits of the municipality the full police power of the state, no doubt can be entertained as to the authority of the city to pass an ordinance prohibiting the erection of buildings or any use of them which "would create hazards from fire or disease, or would menace the public security, health, or morals." Charter of Baltimore, art. 1, § 18; Tighe v. Osborne, supra; Osborne v. Grauel, 136 Md. 88, 110 A. 199; Brown v. Stubbs, supra; Rossberg v. State, 111 Md. 394, 74 A. 581, 134 Am. St. Rep. 626.

The real question in the case, then, is, not whether the city of Baltimore had the power to pass an ordinance protecting the public security, health, or morals, but whether it had the right to delegate to the zoning commissioner the power to determine, in the manner prescribed by Ordinance No. 522 whether buildings or the proposed use of them would menace the public security, health, or morals. If this was a question of first impression, there might be considerable difficulty in determining it, but the past decisions of this court, as well as the prevailing trend of authority elsewhere, seem to us to have settled the matter. An examination of the opinion in Tighe v. Osborne, supra, shows that the chief difficulty with the ordinance in that case was caused by the phrase "public welfare," and all that was there decided was that the city could not delegate to any one the power to decide what was detrimental to the "public welfare." In the present case there is no such delegation. Here the authority of the zoning commissioner is limited to prohibiting structures or uses of them which would menace the public security, health, or morals. These things, as we have seen, are proper objects of the police power, and many of the matters which can...

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  • Cnty. Council of Prince George's Cnty. v. Zimmer Dev. Co., 64
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    • Court of Special Appeals of Maryland
    • August 20, 2015
    ...authorize denial of the permit based on "public welfare" considerations, to be a valid delegation of the police power. Tighe v. Osborne, 150 Md. 452, 459-60 133 A. 465, 467-68 (1926). 9. In Rylyns Enterprises, we stated that for a legislative act of zoning to qualify as a "proper" comprehen......
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    ...... unlimited, and unregulated discretion in an administrative. body is fundamentally an arbitrary and unlawful power. Tighe v. Osborne, 149 Md. 349, 368, 131 A. 801, 43. A. L. R. 819; Tighe v. Osborne, 150 Md. 452, 457,. 133 A. 465, 46 A. L. R. 80; Goldman v. ......
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