MARY G. TIGHE, Appt., V. CHARLES H. OSBORNE, Inspector of Buildings for Baltimore City. Maryland Court of Appeals — April 8, 1926. (Md., 133 Atl. 465.) Municipal corporations, § 49- delegation of power- validity. 1. A city ordinance, delegating to a zoning commissioner the power to determine whether the building and use of certain structures "would create hazards from fire or disease, or would menace the public security, health, or morals," is not an invalid delegation of power where it requires him to give consideration to surrounding conditions in making his determination before issuing building permits, and permits an appeal to the board of zoning appeals and to the city court. [See annotation on this question beginning on page 88.] Buildings, § 12 municipal police power. Constitutional law, § 618 - validity of ordinance fixing court of appeal. (Digges and Parke, JJ., dissent.) APPEAL by petitioner from a judgment of the Baltimore City Court (Frank, J.) overruling a demurrer to the answer to a petition filed for a writ of mandamus to compel defendant to issue a building permit to petitioner. Affirmed. Am. Rep. 239; 19 R. C. L. §§ 117, 118, pp. 812, 813. The facts are stated in the opinion of the court. Mr. C. Arthur Eby, for appellant: The ordinance under consideration violates constitutional guaranties to the individual. Spann v. Dallas, 111 Tex. 350, 19 A.L.R. 1387, 235 S. W. 513. The ordinance permits inequalities in its administration. Baltimore v. Radecke, 49 Md. 217, 33 The ordinance improperly delegates the entire police power of the city, with regard to the use of land in Baltimore city for business purposes, to city administrative officials. 19 R. C. L. 195; Biddeford v. Yates, 15 Ann. Cas. 1095, note; 12 C. J. 864; (Md. 133 Atl. 465.) Baltimore v. Gahan, 104 Md. 154, 64 Atl. 716; Baltimore v. Scharf, 54 Md. 499; Ulman v. Balitmore, 72 Md. 587, 11 L.R.A. 224, 20 Atl. 141, 21 Atl. 709. Mr. James E. Tippett also for appel lant. Messrs. Philip B. Perlman, Wirt A. Duvall, Jr., and George E. Kieffner for appellee. Walsh, J., delivered the opinion of the court: 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, 148 Md., 43 A.L.R. 819, 131 Atl. 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 thirty 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 inspec 46 A.L.R.-6. tor of buildings, and from this judg- its chief provisions will be found 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 § 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 any way 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 § 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 welfare, 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, 26 L.R.A. 541, 45 Am. St. Rep. 339, 30 Atl. 648; State v. Broadbelt, 89 Md. 565, 45 L.R.A. 433, 73 Am. St. Rep. 201, 43 Atl. 771; State v. Hyman, 98 Md. 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. 742; Bostock v. Sams, 95 Md. 400, 59 L.R.A. 282, 93 Am. St. Rep. 394, 52 Atl. 665; Brown v. Stubbs, 128 Md. 129, 97 Atl. 227; Byrne v. Maryland Realty Co.; Goldman v. Crowther; and 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 Buildings state, no doubt can municipal be entertained as to police power. the authority of the city to pass an ordinance prohibiting the erection (— Md. —, 133 Atl. 465.) 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, 148 Md., 43 A.L.R. 819, 131 Atl. 801; Osborne v. Grauel, 136 Md. 88, 110 Atl. 199; Brown v. Stubbs, 128 Md. 129, 97 Atl. 227; Rossberg v. State, 111 Md. 394, 134 Am. St. Rep. 626, 74 Atl. 581. 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 a 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, 148 Md., 43 L.R.A. 819, 131 Atl. 801, 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 legitimately be said to affect any of them, as well as many matters which cannot be properly said to affect them, have been passed upon in previous decisions of this court. These decisions are binding on the zoning commissioner, and, in addition, the ordinance itself provides in § 3 that in passing on permits the commissioner shall give consideration to: "(a) The character and use of buildings and structures adjoining or in the vicinity of the property mentioned in the application. "(b) The number of persons residing, studying, working in or otherwise occupying buildings adjoining or in the vicinity of the property mentioned in the application. "(c) The location, kind and size of surface and subsurface structures in the vicinity of the property mentioned in the application, such as water mains, sewers and other utilities. "(d) Traffic conditions, in so far as they or any of them relate to hazards from fire or disease, or to the public security, health, or morals." It is thus apparent that the ordinance does not vest an unlimited discretion in the zoning commissioner. He cannot refuse a permit, unless the building or its proposed use would menace the public security, health, or morals. He is required to secure information about, and give consideration to, all the matters just enumerated in reaching a decision; and, finally, he is bound by numerous decisions of this court as to what does, and what does not, bear a substantial relation to the public security, health, or morals. Among these decisions are Cochran v. Preston, 108 Md. 220, 23 L.R.A. (N.S.) 1163, 129 Am. St. Rep. 432, 70 Atl. 113, 15 Ann. Cas. 1048, holding that a limitation on the height of buildings was valid; Byrne v. Maryland Realty Co. 129 Md. 210, L.R.A.1917A, 1216, 98 Atl. 547, holding that an act prohibiting the erection of dwelling houses in a certain part of Baltimore city, unless of brick, semidetached, and at least 10 feet apart, or, if of frame, 20 feet apart, is invalid; Brown v. Stubbs, 128 Md. 129, 97 Atl. 227, holding that an ordinance requiring the assent of the mayor and city council of Baltimore to the licensing of buildings for moving picture shows was val id; State v. Hyman, 98 Md. 596, 64 L.R.A. 637, 57 Atl. 6, 1 Ann. Cas. 742, holding that an act requiring, inter alia, a permit to manufacture coats, etc., in a tenement, and authorizing an inspector to revoke the permit at any time the health of the community required it, was valid; Goldman v. Crowther, 147 Md. 293, 38 A.L.R. 1455, 128 Atl. 55, holding that certain provisions in the ordinance in that case attempting to regulate the use of property were void; Bostock v. Sams, 95 Md. 400, 59 L.R.A. 282, 93 Am. St. Rep. 394, 52 Atl. 665, holding that a municipal ordinance providing that no building could be erected without securing a permit from the appeal tax court, and that "no such permit shall be granted, unless in the judgment of the said judges of the appeal tax court, or a majority of them, the size, general character, and appearance of the building or buildings to be erected will conform to the general character of the buildings previously erected in the same locality, and will not in any way tend to depreciate the value of surrounding improved or unimproved property," was void; and Stubbs v. Scott, 127 Md. 86, 95 Atl. 1060, in which it was held that the building inspector of Baltimore city could not, under the ordinances then existing, lawfully refuse to issue a building permit for a building to be erected in a residential neighborhood simply because the proposed structure was to be used for store purposes. The foregoing considerations make it abundantly evident that the ordinance before us contains many limitations on the powers of the zoning commissioner, and, while he could disregard these limitations, it is not to be presumed that he will do so, nor is such a possibility a proper possibility that ground for declaring the ordinance invalid. State v. Hyman, supra. And should these limitations be disregarded, the party injured thereby has a right of appeal to the board of zoning appeals, and thence to the Baltimore city court, under § 2 of the ordi nance. And, finally, there is ample authority to sustain even broader delegations of power to administrative boards or subordinate officials. It was strongly intimated throughout the majority opinion in Tighe v. Osborne, supra, that the delegation of power contained in the ordinance involved in that case would have been valid had the phrase "public welfare" been omitted from the ordinance. Not only has that phrase been eliminated from the ordinance we are now considering, but, in addition, the provision in the first ordinance authorizing the commissioner to refuse a permit if the building or its use would, "in his judgment, in any way menace the public, security," etc., has been changed, and in the present ordinance the commissioner is authorized to refuse a permit only when the building or its use "would menace the public security," etc. In State v. Hyman, supra, the delegation by the Legislature to an inspector of the power to determine when the manufacture of clothing in a tenement was detrimental to the health of the community was upheld as valid. In Smith v. Standard Oil Co. 148 Md. —, 130 Atl. 181, we held valid two ordinances of Baltimore city requiring any one who desired to erect a livery stable, junk shop, garage, gasoline service station, etc., to first secure a permit from the mayor; and in the very recent case of Baltimore v. Bloecher & Schaff, 149 Md., 132 Atl. 160, we sustained an ordinance of the mayor and city council of Baltimore which authorizes the health commissioner or his inspectors to condemn meat which was found to be intrinsically unsound, unhealthful, unwholesome, or otherwise unfit for human food, and which further authorized the condemnation of meat products prepared under conditions so unclean or unsanitary as to induce a reasonable belief that they |