Dasch v. Jackson

Offutt, J., delivered the opinion of the Court. The General Assembly of Maryland, by chapter 377 of the Acts of 1935, for convenience herein called the act, created a board to be known as the board of examiners and supervisors of paper hangers of Baltimore City, herein called the board, consisting of five members, for “the purpose of issuing licenses and examining into the qualifications and capabilities of all persons engag ²⁵⁴ ing in, or desiring to engage in the business of paperhanging in Baltimore City.” The board is authorized to “adopt such rules and regulations for the examinations of paper-hangers as herein defined, and for the carrying on of the business of paper-hanging in such manner as to protect and promote the public health, safety and general welfare, and when so adopted, such rules and regulations shall have the same force and effect as if herein contained, and the rules of said Board shall also provide for the giving of timely notice of such meetings to all persons who shall have made application for a license as herein provided.” It is also authorized, directed, and required, to “classify the business of paperhanging into two classes, to be known as Classes A and B, and to issue a separate license for-each class, upon application, examination and the payment of the fees as hereinafter provided. The holders of a Class A license shall be authorized to accept orders or contracts for paper-hanging, and to perform all such work as may be necessary for the fulfillment of such orders or contracts through the employment of holders of a Class B license, or individually, where the holder of a Class A license also holds a Class B license. The holders of p Class B license shall be authorized to hang or lay wall paper, or other similar wall coverings, prepare walls, ceiling, or other portions of buildings, and generally, to do and perform all things necessary to be done in the proper discharge of the duties of a paper-hanger.” However, all persons engaged in the business of paper hanging on June 1st, 1935, were entitled to receive a license without examination if they applied for it before August 1st, 1935, and paid the license fees.

The licenses are for one year, the fee for a class A (contractor’s) license is fifteen dollars, and the renewal fee ten dollars, and for a class B (journeyman’s) license five dollars and the renewal fee two dollars. The board is given power to revoke or suspend any license for any violation of the act or “for any other cause” which it may “deem sufficient.” But before any person failing to apply before August 1st, 1935, for a license shall either continue or ²⁵⁵ carry on the business of paper hanging in Baltimore City, such person shall apply for a license, and “all such individuals, members of copartnerships and officers of employees of corporations whose duties shall engage him or her in the performance of the work usually and customarily performed by a paper-hanger, shall present himself, or herself before said Board at a time and place to be fixed by said Board for examination as to his or her qualifications to follow the occupation of a paper-hanger. Every such application shall be accompanied by the payment of a fee of Fifteen ($15.00) Dollars in cases where the application is for a Class A license, and a fee of Five ($5.00) Dollars in cases where the application is for a Class B license, and if said Board shall, upon due examination and the payment of the fee above provided, find that the person examined is qualified as a paper-hanger, then such applicant shall be entitled to a license of the Class applied for without the payment of any additional fee, which said license shall expire on the first day of May next succeeding, and be subject to renewal as hereinabove provided. A Class A license may be issued without examination, but no holder of such license shall be permitted to actually perform the work of a paper-hanger unless he also holds a Class B license, but the holder of a Class A license may carry on his business through the employment of one or more holders of a Class B license, or individually, if he hold a Class A license, but not otherwise.” The act further provides that any person who shall carry on the business of paper-hanging without having first obtained a license therefor shall be subject to fine, or imprisonment, or both.

It permits the holders of a Class B (journeyman’s) license to employ unlicensed helpers, and also permits the owner of a building to paper it himself or to employ a Class B licensee to do the work, so that a householder may act as his own contractor and journeyman paper hanger for his own property without a license. Each member of the board is to be paid five dollars a day for his services, and its secretary such further compen ²⁵⁶ sation as the board may allow, the compensation together with administration expenses to be paid out of license receipts, and any surplus to be paid over to the state treasurer for the use of the State. The Governor in due course appointed as members of the board, C. Hood Dasch, Richard G. Bauer, Herman Zapf, Clement Ehoff, and Charles Block, all of whom qualified, and entered upon the administration of the duties imposed upon the board. In the course of its work it published a notice directed to “Paper-Hangers, Interior Decorators, Contracting Paper Hangers, Paper Hangers, Contracting Scrapers and Scrapers” by which they were informed that after August 31st, 1935, they would be subject to the penalties prescribed by the act unless they secured the licenses required by it.

Charles L. Jackson, the appellee, for many years has been engaged in business as an operative and contracting paper-hanger in Baltimore City, and is still in that business. But for the act he would have continued to operate it as he has done, without regulation, and without tax, except such as affected uniformly and generally all persons employed in any kind of skilled or unskilled labor. He objected to the license or tax, and he also objected to the necessity which the act imposed, of securing the consent of the board to carrying on the business which he had before carried on as a matter of common right without the consent or approval of any person, board, or agency. He asserted that, in so far as the act interfered with his right to engage in a harmless and useful employment by imposing upon him restrictions not imposed upon others employed in other forms of harmless and useful labor, it was unconstitutional and void.

He therefore filed the bill in this case against the state’s attorney for Baltimore City, who is charged with the duty of prosecuting violations of the statute, and against the board, for the purpose of having them enjoined from enforcing the act against him. In the bill he alleges that the act is unconstitutional because (1) it violates the Home Rule article of ²⁵⁷ the Maryland Constitution, article 11A; (2) it violates article 3, section 29 of the Maryland Constitution, relating to the titling of acts of the Legislature; (3) it violates article 3, section 33, of that Constitution because it is a “Special Act”; (4) it improperly delegates to the board legislative powers; (5) it is an improper exercise of the police power of the state, and violates the fifteenth and twenty-third articles of the Maryland Declaration of Rights and the due process clause of the Federal Constitution, Amendment 14; (6) it violates the fifteenth and twenty-third articles of the Maryland Declaration of Rights and the Fourteenth Amendment of the Federal Constitution by depriving the citizens of the equal protection of the law; and (7) it violates article 3, secs. 52 and 32, of the Maryland Constitution, Code, art. 41, secs. 117-124, in requiring license fees to be paid to the board instead of to the state treasurer. The board and the state’s attorney severally filed combined answers and demurrers to the bill. The board denied the appellee’s conclusions of law, and defended the act on the ground that it had a direct relation to the public health, because, they say, the trade requires a knowledge of the elimination and destruction of germs, vermin, and pests, which can only be had from special training and experience, and also a knowledge of the properties of electricity, because the work requires the removal of electrical fixtures, and on the further ground that regulation is needed to protect the public against certain dishonest trade practices, and also to protect it against irresponsible and inefficient workmen.

It further states that a substantial surplus will result from the operation of the act, which will be turned into the state treasury. The 'answer of the state’s attorney in effect denied the conclusions of law stated in the bill, and asserted the validity of the act. Demurrers were filed to each of those answers and the case heard upon those pleadings. The court overruled the demurrers to the bill and sustained the demurrers to the answers with leave to amend.

From that order, the board appealed. ²⁵⁸ The principal questions presented by the bill are (1) whether the act violates the Home Rule Amendment of the Maryland Constitution; and (2) if it does not, whether it deprives the complainant of the equal protection of the law guaranteed by the Federal Constitution; or (3) deprives him without due process of law of rights and privileges protected by both the Federal and the State Constitutions. The City of Baltimore formed a charter under the Home Rule Amendment in November, 1918. Under the amendment and that charter, its lawmaking power is vested in the Mayor and City Council of Baltimore. Under the amendment, the Mayor and City Council are empowered to enact the local laws of that city, “upon all matters covered by” express powers granted by the General Assembly, and the General Assembly is expressly prohibited from enacting any public local law for that city on any subject covered by such express powers.

Const, of Maryland, art. 11A, secs. 3 and 4. By section 2 of the article the General Assembly was directed to provide a grant of express powers for “such county or counties” as should form a charter under its provisions, and declares that neither such powers nor powers theretofore granted to the City of Baltimore, set out in the Code of Public Local Laws of Maryland, art. 4, sec. 6, should be enlarged or extended by any charter formed under the provisions of the article, but that they might be amended, extended, modified, or repealed by the General Assembly. It was assumed in Gaither v. Jackson, 147 Md. 655 , 128 A. 769 , that the grant of power to the city included all powers found in the first 222 sections of the 1915 Charter of Baltimore City, among Which was the power to “license, tax and regulate all businesses, trades, avocations or professions.” Code Pub. Loc.

Laws, art. 4, sec. 6, subd. 14. The question before the court in the case last cited was whether under the Home Rule Amendment the Mayor and City Council of Baltimore had the power to repeal certain sections of the Code of Public Local Laws ²⁵⁹ of Baltimore City, which provided for the appointment of auctioneers by the Governor and for the payment by the auctioneers of fees to the State, and to amend them so as to make the fees payable to the city, and to transfer the power of appointment from the Governor of the State to the Mayor of the City of Baltimore. In dealing with that question, the court, referring to the ordinances, said: “So. far as the area of their applicability is concerned, they come within the definition of local laws in State ex rel. Webster v. County Commissioners of Baltimore Comity, 29 Md. 516, 519 , and in Herbert v. County Commissioners of Baltimore County, 97 Md. 639 , 55 A. 376 . “That the law sought to be repealed was intended to be a revenue law is shown both by the amount of the charge for licenses and by the imposition of duties. * * * “If such a law can be held to be a local law within the meaning of the Home Rule Amendment, then the State has surrendered its right to impose duties or taxes under article 15 of the Bill of Rights on businesses and occupations in Baltimore City or in any county which adopts a charter under the provisions of said amendment—or retains the right subject to the will of the city or county.

And this is just what the city contends the State has done as to the auction business in Baltimore City, so long as the present powers granted to the city remain unrepealed by the General Assembly, or unless such duties and taxes are made applicable to two or more geographical subdivisions of the state. We are unable to reach this conclusion. That the mere designation of a law as a local law, or its treatment as such by the General Assembly, does not make it a local law for all purposes, is illustrated in the case of Bradshaw v. Lankford, 73 Md. 428 , 21 A. 66 . “That case can readily be distinguished in its facts from the case at bar, but there is one principal common to both cases, viz.: a law is not necessarily a local law merely because its operation is confined to Baltimore ²⁶⁰ City or to a single county, if it affects the interests of the people of the whole state.” As pointed out in that case, the effect of the Home Rule Amendment was to empower the Mayor and City Council of Baltimore to legislate as to all such matters of purely local concern as were covered by grants, prior to the amendment, found in Code Pub. Loc.

Laws, art. 4, and to remove that field of legislation from the State Legislature, reserving, however, to that Legislature the right to expand or restrict that field by extending, repealing, modifying, or amending express powers theretofore granted, but denying to the city, or a county, as the case may be, the right to enlarge or extend the powers granted to it by the adoption of a charter. By section 4 the amendment provided that any law applying to two or more of the geographical subdivisions of the state should not be deemed a local law. Apart from that limitation, it attempts no definition of the distinction between a local law and a general law, but leaves that question to be determined by the application of settled legal principles to the facts of particular cases in which the distinction may be involved. Any complete or final definition of the term “local law” is, because of the varying meanings attached to it, considered in reference to its geographical extent and the classification of the objects to which it applies, difficult to formulate, and perhaps more difficult to apply with any proper degree of uniformity or certainty.

A law may be local in the sense that it operates only within a limited area, but general in so far as it affects the rights of persons without the area to carry on a business or to do the work incident to a. trade, profession, or other calling within the area. It may also be general in the sense that it affects some matter in which the people of the whole legislative jurisdiction may be interested, such as. the general revenue, but local in the sense that it imposes burdens on property, business, or transactions only within a limited area. Gaither v. Jackson, supra, illustrates the type of law ²⁶¹ which, while local in its immediate operation, nevertheless is general because it affects the general revenues of the state. For the same reasons, the statute involved in Denhard v. Baltimore, 167 Md. 416 , 173 A. 267 , was held to be general in its nature.

Cases cited which to some extent illustrate the type of law which, while operating only within a limited area, incidentally affects the rights and privileges of persons beyond the area, are Bessette v. People, 193 Ill. 334 , 62 N.E. 215 , which dealt with a statute regulating and licensing the business of horseshoeing, which was to be operative in municipalities of over 50,000 inhabitants, and optional in municipalities of from 10,000 to 50,000 inhabitants, and not to ’apply to municipalities of less than 10,000 inhabitants, and Taylor v. City of Philadelphia, 261 Pa. 458 , 104 A. 766 , where the statute under consideration authorized municipalities to provide by ordinance that all work on public buildings shall be done within municipal limits. Confusion is caused at times from the indiscriminate use of the word “local” and “special” as though the two always meant the same thing, which of course is not so. “Local” is often used in connection with geographic or territorial limitation, while “special” is more properly used to limit or describe the subject-matter, of a law. But whether the term be given the one meaning or the other, it clearly excludes the statute under consideration in this case from the field of legislation over which the City of Baltimore is given exclusive control by the Home Rule Amendment. First, because it imposes taxes or fees designed to produce a surplus payable into the general funds of the State (Gaither v. Jackson, supra), and to that extent affects to some extent the people of the whole State.

Second, because it affects the right of persons not residing in the City of Baltimore as well as the right of persons residing within that city to engage in the business of paper hanging in Baltimore City, either as contractors or journeymen. It is not therefore a local law within the meaning of the Home Rule Amendment, but is within the field of legislation over which the General Assembly of the State retains control. ²⁶² The second and third questions may be considered together, because if the law operates to deprive the appellee of the equal protection of the law by burdening his right to. carry on his business with conditions and exactions not imposed upon others engaged in work of the same general character, it may 'also operate to deprive him of his property without due process of law, for such a right is property. Cooley, Constitutional