Creaghah v. Mayor of Baltimore

Thomas, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court of Baltimore City sustaining a demurrer to and dismissing the bill of complaint filed by the appellants against the Mayor and City Council of Baltimore and John D. Blake, Commissioner of Health, to have Ordinance No. 262 of the Mayor and City Council of Baltimore declared null and void, and for an injunction restraining the enforcement of the same. The bill alleges that the plaintiff, Thomas J. Creaghan, was a resident and taxpayer of Baltimore City, and at the time of the filing of the bill, and for twenty-eight years prior ⁴⁴⁴ thereto, was engaged in the retail milk and dairy business in Baltimore City, during all of which time he had conducted the business in a proper and sanitary manner, and had delivered to his customers wholesome milk and dairy products; that the plaintiff, Samuel G. Imwold, was a resident and taxpayer of Baltimore County, and owned and operated a dairy farm in that county, having in his herd about one hundred cows and at the time of -the filing of the bill milking sixty cows; that he retailed loose milk, the product of his own herd and the herds of others; that he maintained his herd in a healthy and sanitary condition, “and that the herds of the others from whom he produces, milk” were likewise kept in a healthy and sanitary condition; that his plant in Baltimore County, which was of great value, had been inspected by city inspectors and state inspectors; that he had never had any “trouble under such inspection”; “that for twenty-eight years past he has retailed milk to the consumers in Baltimore City from the chum, properly iced, of high grade, wholesome and fit for human consumption; that all of his assistants at said dairy farm and engaged in the delivery of the product thereof are also kept in a clean, healthy and sanitary condition.” The bill further alleges that on the first day of Tune, 19 IT, the Mayor and City Council of Baltimore passed an ordinance, known as Ordinance Ho. 262, which provided, in Section 6, that it should take effect five months after the date of its passage; that there was no statute of the State authorizing the ordinance, and that the same is “unconstitutional and in contravention of the twenty-third paragraph of the Bill of Eights of the State of Maryland and the Fourteenth Amendment of the Constitution of the United States, in that it deprives citizens of Baltimore City and non-residents of Baltimore City of their property without due process of law, and without any warrant or authority whatsoever; and interferes with their personal liberties”; that “many portions of said ordinance are void in that it attempts to empower said Commissioner of Health to use unlimited ⁴⁴⁵ and unbounded discretion in granting or refusing or revoking permits therein provided for, and does not undertake'ta provide any general rules or regulations limiting the exercise of said discretion”; that it “fails to' provide for proper notice and hearing or appeal from the results of the exercise of such discretion, as therein provided to< any properly constituted judicial tribunal, so that the powers attempted to he granted to' said Commissioner of Health may he exercised in a whimsical, capricious, ignorant, fraudulent or dishonest manner without any opportunity to your orators or either of them for an appeal from or a correction of such action on the part of such Commissioner of Health”; “that such regulations as are prescribed by said ordinance are arbitrary, unreasonable, unfair, unjust and the provisions thereof provide for the exercise of the will or discretion of a municipal officer unrestrained by any prescribed general rule of law, placing him in a position where he may give permits to some and refuse permits to others under the same conditions, and permit such citizens as he may like to conduct their lawful business and prevent others from so conducting their lawful business, to the great hurt and detriment of such others, to their ruin and the confiscation of their property”; that the “ordinance attempts to delegate legislative power to the Commissioner of Health in that it attempts to> empower him to make regulations for the sale of milk or cream below the requirements for standard milk pasteurized and standard cream pasteurized; for sterilization of milk; for standardization or adjustment of milk; for the requirement for the production of the aforesaid grades of milk; for the production, pasteurization and handling of all milk, skimmed milk, or cream, held, kept, or offered for sale, sold or delivered for consumption in the City of Baltimore, or used for the manufacture of ice cream or butter, buttermilk, or other fermented milks, whey or curd, in the City of Baltimore; for the increasing of temperature for pasteurization; for the application of the tuberculin test; for the making of the grades of ⁴⁴⁶ milk established or attempted to be established by said ordinance; for excusing from compliance with' the expressed terms of said ordinance; for the naming of the conditions under which selected milk pasteurized or selected cream pasteurized may be sold in Baltimore Oity; for excusing compliance otherwise necessary under Rule 5, Section 59E of said ordinance; for kpeping, offering for sale, selling, delivering or using in the Oity of Baltimore milk or cream below standard milk or cream; for discoloring or denaturing milk or cream; for keeping milk at a higher temperature than otherwise by said ordinance allowed; for inspecting or investigating the herd,- the farm and its equipment-, of the producer, outside, of Baltimore Oity and the jurisdiction of the defendants and each of them; for producing, handling, selling or distributing raw milk and cream; for removing infected cattle from herds outside of Baltimore Oity; for regulating and fixing the character and equipment of the farm for the production of raw milk outside of Baltimore Oity; for declaring the conditions under which any condensed milk, condensed cream, evaporated milk, evaporated cream or other milk or cream products may be sold in Baltimore Oity, and, generally, to transact many other things without legislative assent”; that the “enforcement of the powers thus attempted to be conferred upon the Oommissioner of Health will unequally affect the rights of your orators and of other persons engaged in like trade or business * * -x- an(j _cauge other irreparable damage,” and “that all and eaclq of said powers so attempted to be conferred are ultra, vires”; “that although the respective business of your orators, as aforesaid, are not now and never have been nuisances in fact or in law, nevertheless, under the terms of said ordinance they may be so declared by the mere dictum of said Commissioner of Health, and your orators may be deprived of their business and means of livelihood”; that the ordinance, if enforced, will forbid the entrance of perfectly clean and healthy milk into the City of Baltimore, “except at ⁴⁴⁷ the pleasure of the Commissioner of Health”; that under the provisions of the ordinance it will take effect on the first day of November, 1917, and that the defendants, had given notice to the plaintiffs and others that the ordinance would be enforced at that time; that the enforcement of the ordinance would he ruinous to the established business of the plaintiffs and each of them, and of the milk business of the majority of milk dealers in Baltimore City, and the damages arising from such enforcement would be irreparable, and that, “owing to war conditions,” and the scarcity of labor and metal, it had been impossible ever since the passage of tbe ordinance to make such “changes in the plants of dairies operating in Baltimore City and in milk-producing farms and plants as are necessary in order to comply with its provisions.” The bill then prayed that the ordinance referred to, “and each and every part thereof,” be declared null and void, and that the defendants he enjoined from enforcing or attempting to enforce it. The ordinance, which was filed as an exhibit with the bill, is entitled: “An ordinance to repeal Sections 55A, 56A, 56B and 59 of Article 14 of the Baltimore City Code of 1906, title ‘Health,’ sub-title ‘Food, Food Products and Milk,’ as amended by Ordinance 103, approved May 6, 1908, and to reordain said sections with amendments, and to add twelve new sections to said article, to be designated Sections 55E, 59A, 59B, 590, 59D, 59E, 59E, 59G, 59H, 59 I, 59 J and 59K, and to further regulate the production, manufacture, handling, sale and distribution of milk and cream products in Baltimore City.” Notwithstanding the ordinance itself covers more than twenty-six printed pages, and is an amendment of and an addition to Article 14 of the Baltimore City Code of 1906, as amended by Ordinance 103 of May 6, 1908, containing many other provisions dealing with the same subject-matter, the plaintiffs nowhere in their bill refer to the particular sec ⁴⁴⁸ tion or sections of the ordinance claimed to he open to the objections urged against it, and the enforcement of which would operate to their injury.

Eor have counsel for the appellants in their brief pointed out the particular sections, or provisions thereof, falling within the condemnation of the rules for which they contend. While the enforcement of a void ordinance may be enjoined at the instance of a party whose interests will be injuriously affected by its execution (Page v. Baltimore, 34 Md. 558 ; Deems v. M. & C. C. of Baltimore, 80 Md. 164 ), the well established rule in this State is that a statute may be valid in part and void in part, even where the two parts are contained in the same section, “provided that the valid part is independent of, and severable from, that which is void.” Steenken v. State, 88 Md. 708 ; Welch v. Coglan, 126 Md. 1 . And the same rule applies to ordinances. Field v. Malster, 88 Md. 691 .

As we have said, the bill alleges that “many portions of said ordinance are void,” without specifying the particular provisions or sections objected to, while the prayer of the hill is that the “ordinance and each and every part thereof” be declared null and void. Where an ordinance contains many sections and provisions, and is an amendment of and an addition to an article of the Code containing numerous other sections and provisions dealing with the same subject-matter, in connection with which the ordinance must be construed, good pleading would at least require the plaintiff to point out the sections and provisions claimed to be unconstitutional, with sufficient averments to show that his interests would be injuriously affected by their enforcement. The main objections urged against the ordinance in question, as gathered from the very general allegations of the bill, are: 1. That the Mayor and City Council of Baltimore had no authority to pass it. 2.

That it is unconstitutional in that it deprives the plaintiffs of their property without due process of law. ⁴⁴⁹ 3. That it attempts to confer upon the Commissioner of Health unlimited discretion in granting, refusing and revoking permits therein provided for. 4. That it fails to provide “for proper notice, and hearing or appeal from the results of the exercise of such discretion.” 5. That it attempts to delegate legislative power to the Commissioner of Health, “in that it attempts to empower him to make regulations for the sale of milk,” etc. 1.

The Baltimore City Charter (Act of 1898, Chapter 123) expressly authorizes the Mayor and City Council of Baltimore “To provide hy ordinance for the proper inspection of milk or any and all other food products offered for sale in the City of Baltimore or intended for consumption therein,” and further declares that the city shall “have and exercise within the limits of the City of Baltimore all the power commonly known as the police power to the same extent as the State has or could exercise said power within said limits.” The ordinance in question was passed in the exercise of the police power thus expressly conferred upon the Mayor and City Council, and can not therefore he said to be without legislative sanction and authority. Deems v. Balto., supra. 2. All of the other objections, as we have enumerated them above, are fully covered and disposed of hy the decisions of this Court. In the case of Boehm v. Baltimore, 61 Md. 259 , Judge Millek, speaking for the Court, said: “Under the power To pass ordinances to preserve the health of the city, to prevent and remove nuisances, and to prevent the introduction of contagious diseases,’ the Mayor and City Council of Baltimore enacted, among others, two ordinances * * *.

By the first of these ordinances it is provided that no person shall remove the contents of any privy, well or sink, within the limits of the city, without having first obtained a license so to do, and every person who may obtain such license ‘’shall be ⁴⁵⁰ considered as subject to tbe orders of the Board of Health •in all matters relating to the opening and cleaning of privies or vaults, time and manner of removal, and the presentation of statistics connected with the cleaning of privies, as also the .place or places to which night soil may be removed, and for any refusal or neglect to- obey the orders of the Board of Health as herein provided, it shall be the duty of the Comptroller, upon the written request of the Commissioner of Health, to revoke the license of the person or persons so refusing or neglecting to obey.’ By the second it is enacted, that every person desiring such license shall make a written application therefor, to the Comptroller, who, after conference with the Board of Health, and on being satisfied with the ■character of the applicant, the security and tightness of his •carts, that he is the owner of such as are specified in his •application, and that he is not in collusion or combination with others to defraud the city, may grant him a license for ■one year, and renew the same from time to time, upon his paying for such license, and each renewal of the same, the sum of $2.50 for each and every cart; ‘and the Comptroller upon complaint of the Health Commissioner may revoke or ■suspend any such license.’ * * * The validity of these ordinances was not seriously questioned in argument. That they are a lawful and proper exercise of the power To preserve the health of the city and to prevent and remove nuisances,’ does not admit of doubt. Such powers have been universally granted to municipal corporations in this country. In fact the preservation of the health and safety of the inhabitants is one of the chief purposes of local government, and reasonable by-laws, in relation thereto have always been sustained in England, as within the incidental authority of such corporations.

Under such a power a municipal corporation has the undoubted right to pass ordinances creating boards of health, appointing health commissioners, with other subordinate officials, regulating the removal of house dirt, night soil, refuse, offal and filth, by persons licensed to perform such •work, and providing for the prohibition, abatement and sup ⁴⁵¹ pression of whatever is intrinsically and inevitably a nuisance. * * * There is no similarity between these ordinances, and the one pronounced inoperative and void in Radecke’s case, 49 Md. 217 . The mischief against which they are directed, and the object sought to be attained by their enactment, are altogether different from those with which the ordinance in that case professed to deal, and we have no hesitation in declaring them not only free from the objections which were held fatal to that ordinance, but in every respect reasonable and proper. The subject-matter dealt with by these ordinances required the adoption of very stringent rules and regulations*, and such is the character of their provisions. Every person obtaining a license to perform this offensive, but necessary work, is very properly subjected to the orders of the Board of Health in all matters pertaining to the manner of doing it.

By one of the ordinances it is provided that 'for any refusal or neglect to obey the orders of the Board of Health, as herein provided, it shall be the duty of the Comptroller, upon the written respect of the Commissioner of Health, to revoke the license,’ and by the other power is given him to revoke or suspend the license upon the complaint of the same officer. We do not interpret these provisions as requiring the Comptroller, before he acts, to investigate and determine the reasonableness or truthfulness of the charges or complaints made by the Health Commissioner. Prompt and decisive action is what is contemplated and required, for it is manifest that such work could not be done, even for a short time, in an improper manner without serious danger to the public health. In the one case it is made his duty to act immediately 'upon the written request,’ and in the other he may act upon the simple complaint of the Health Commissioner.

The plea avers there was in this case both the 'complaint and written request,’ and we are of opinion it is a bar to this action against the city.” In the case of Commissioners of Easton v. Covey, 74 Md. 262 , the Court had to deal with the validity of an ordinance passed by the Commissioners of Easton, which provided: “It shall not ⁴⁵² be lawful for any person or persons to erect or build, any dwelling-house, barn, shed, stable, storehouse, warehouse or shop, within the limits of this town, or any porch on any part of the sidewalks, without first obtaining a permit from the Commissioners of the town, through their clerk, to erect the same, for which one dollar shall he paid for each and every permit so granted,” etc. In that case it was argued by counsel for the appellee: “The ordinance does not profess to regulate the erection of buildings, or to lay down general rules governing their construction, or to prescribe limits within which any given business can be conducted. But tbe construction sought to he placed upon it by the defendants 'would commit to the unrestrained will of the Commissioners the power to say whether* or not any building, of any character whatsoever, should hereafter be erected in the town of Easton.’ It 'lays down no rules by which its impartial execution can be secured, or partiality and oppression prevented.’ Such a construction would make the ordinance one which in the language of Mr. Justice Miller, hardly falls within the 'domain of law.’ Balto. v. Radecke, 49 Md. 230 .” After holding that the Commissioners had the power to pass the ordinance, this Court then said: “We also think it equally clear, that an ordinance passed tinder this clause to regulate the erecting of any buildings within the corporate limits, by providing that no such building shall be erected without a permit therefor, first obtained from the Commissioners, is not only reasonable, but useful, if not essential to the welfare and prosperity of the town. Like ordinances have been passed by the corporate authorities of other towns and cities under just such general grants of power as this, and we have found no case in which their validity has been denied.' The ordinance which was declared unreasonable and void in Radeche’s case, was one which gave to the Mayor the unrestrained and absolute power at his own mere will and pleasure to revoke any and every permit which had already been granted for the use of steam engines and boilers, in the City of Baltimore, but at the same time the Court was careful .to say that in ⁴⁵³ deciding that ordinance to be void, they were not to be understood as expressing any disapproval of a previous one which required a permit for the erection of every such engine within the city limits.” In Deems v. M. & C. C. of Balto., supra, the Court had under consideration an ordinance of the Mayor and City Council of Baltimore making it unlawful for any person to sell or offer for sale any impure, adulterated, sophisticated or unwholesome milk or other food products; and providing that only pure, unadulterated, unsophisticated and wholesome milk should be sold, and that such article should be understood to be the natural product of healthy cows which had not been deprived of any part of its cream, and to which no additional liquid or solid preservative had been added, and having the specific gravity therein mentioned. It also provided for the appointment of a competent chemist, who should make such chemical and microscopical examinations as might be required under the ordinance, and for the appointment also of three inspectors of foods, and by section 6 further provided: “And milk or food products in the possession of the person or persons so violating, disobeying, refusing or neglecting to comply with the provisions of this ordinance may be confiscated and destroyed by the inspector examining the same.” The bill was filed by a dairyman, who conducted a retail'business for the sale