Weinberg v. Kracke

• Decision Date: 14 November 1947
• Docket Number: 19.
• Citation: 55 A.2d 797,189 Md. 275
• Parties: WEINBERG et al. v. KRACKE et al.
• Court: Maryland Court of Appeals

55 A.2d 797

189 Md. 275

WEINBERG et al. v. KRACKE et al.

No. 19.

Court of Appeals of Maryland

November 14, 1947

Appeal from Circuit Court of Baltimore City; John T. Tucker, Judge.

Suit by Fulton C. Kracke and others against Harry Weinberg and others to enjoin use of property in violation of ordinance. From an order overruling defendants' demurrer, defendants appeal.

Affirmed.

Reuben Shiling, of Baltimore (Harry Silver and Louis Silberstein, both of Baltimore, on the brief), for appellants.

Julius G. Maurer, of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARBURY Chief Judge.

The appellees, stated to be taxpayers and owners and occupants of homes situated within the immediate neighborhood of 3001-3023 Wilkens Avenue, in Baltimore, filed their bill of complaint 'for themselves and for their hundreds of neighbors who also are taxpayers as well as the owners and occupants of homes located within the area known as Wilhelm Park,' in which area complainants' properties are located. The bill alleges that Wilhelm Park is a large residential development and has been such for a number of years.

It appears from the bill that the defendants, appellants here are the owners of Lots 3001-3023, also located in Wilhelm Park. On May 23, 1940, they made application through the Buildings Engineer for a permit to dismantle automobiles and to sell used automobiles on a portion of this property. This application was disapproved, and the defendants took an appeal to the Board of Zoning Appeals. A hearing was had on June 4, 1940. At this hearing a large group of neighborhood owners vigorously opposed. On June 8, 1940 the defendants withdrew their application and their appeal. On December 10, 1940, an ordinance was introduced into the City Council of Baltimore to amend the Zoning Ordinance so as to rezone from industrial and second commercial use to residential use, land on the south side of Wilkens Avenue, including the property of the defendants. These proposed changes were approved by the Board of Zoning Appeals, and the City Plan Commission of Baltimore. For some reason this ordinance did not pass. On December 12, 1941, Ordinance 628 was approved. This ordinance amended the Zoning Ordinance by adding paragraph 84 which prohibited the use of property located in the second commercial use district for 'Automobile dismantling, salvaging or wrecking yard, and yard for the dismantling and salvaging of automobile parts.' On May 6, 1946, the Abbey Fence Company, agent for the defendants, made application to the Buildings Engineer for a permit to erect a chain link wire fence on a property contiguous to the premises. The purpose of the application was to use the property and building for storage and sale of used cars. This application was disapproved by the Buildings Engineer on the ground that the property was located within a residential use district. An appeal was taken to the Board of Zoning Appeals and the hearing was had on May 21, 1946. At this hearing a number of taxpayers and property owners of Wilhelm Park protested, and the application and the appeal were thereupon withdrawn. On May 13, 1946, an ordinance known as 'City Council No. 766' was introduced in the City Council for the purpose of amending the Zoning Ordinance by rezoning from second commercial and industrial use to residential use, certain land on the north and south side of Wilkens Avenue, including the property of the defendants. This ordinance was approved June 3, 1946, by both the Board of Zoning Appeals and the City Plan Commission. A public hearing was held before the members of the City Council on that day, and the defendant Harry Weinberg appeared at that hearing as an opponent. After amendments, which did not affect the rezoning classification of defendants' property, the ordinance was passed, was approved by the Mayor on July 10, 1946, and is now in force as Ordinance No. 510 of the Mayor and City Council. On May 31, 1946, the defendants made application to the Buildings Engineer, and obtained a permit to build a metal wire fence upon their property for the sale of used automobiles. This was unknown to the appellees until a few days prior to September 27, 1946, when the original bill of complaint was filed. At that time the complainants observed someone starting to dig post holes on the property, and, upon investigation, learned for the first time of the permit.

The bill further alleges that the appellants have on display, advertisements reading 'Howard Motor Sales and Salvage' and 'We Buy Anything and Everything'; that there are five automobile wrecks now on the property, and that the appellants are using a tow truck with which to tow automobile wrecks and hulks to and upon said property. That the property was not used prior to September 27, 1946, for any of these businesses or uses, or as an automobile dismantling, salvaging or wrecking yard or as a yard for the dismantling and salvaging of automobile parts or as a storage yard for display, storage or sale of motor vehicles, all of which are prohibited by Zoning Ordinance 1247 as amended by Ordinances 628 and 510. The 13th paragraph of the bill of complaint reads as follows: 'That if the Defendants are permitted to use their said property known as '3001-3023 Wilkens Avenue' as aforesaid for the purposes and uses in paragraphs eleven and twelve set forth, such business and uses will (a) materially and irreparably damage and depreciate the value of your Orators' and of their said neighbors' properties and (b) seriously endanger the health, safety, morals and general welfare of your Orators and of their said neighbors.' The bill then asks for an injunction prohibiting the use of the premises 3001-3023 Wilkens Avenue for any of these uses. To the original bill, a demurrer was filed. This was sustained, and the bill was then amended to its present form. A demurrer was filed to the amended bill which is, in reality, a supplemental bill. The Chancellor overruled this demurrer, and from such action the appeal comes here.

The basis of the demurrer, and of the argument on behalf of it here, is that the amended bill of complaint alleges the commission of a mere public wrong involved in the disregard of an ordinance, but does not allege any damages to the plaintiffs distinct in character from those to the public, and, therefore, it does not entitle the plaintiffs to any relief in equity.

There is a type of action, well recognized in this State, by which a plaintiff, usually a taxpayer, can file a bill for an injunction or a petition for mandamus, representing not himself alone, but all those similarly situated, and asking for relief from public authorities in a public matter. Such a public right of action was recognized in Baltimore v Gill, 31 Md. 375, 393, distinguished from a private right of action in Kelly v. Baltimore, 53 Md. 134, and stated to be no longer open to question in Peter v. Prettyman, 62 Md. 566. In Garitee v. Baltimore, 53 Md. 422, 436, this Court, speaking through Judge Alvey, said 'In the ordinary cases that occur, it is no easy matter to determine when a private action may be maintained for injuries suffered from a public nuisance' and 'In the application of this general rule, however each case must depend, more or less, upon its own special circumstance.' The question was discussed in Sun Cab Co. v. Cloud, 162 Md. 419, 426, 427, 159 A. 922, and a reason was there given for the distinction between a suit by one taxpayer alone in a public matter and a suit by such a taxpayer representing himself and others likewise affected. In the later case of Baltimore Retail Liquor Stores Ass'n v. Commissioners, 171 Md. 426, 189 A. 209, 210, 109 A.L.R....