Gaither v. Jackson

Adkins, J., delivered the opinion of the Court. This suit was instituted in the Superior Court of Baltimore City by a petition for mandamus by the board of estimates of the Mayor and City Council of Baltimore against the Commissioner, of Police. The petition is as follows: The petition of Howard W. Jackson, mayor; R. Walter Graham, comptroller; Howard Bryant, president of the city council; Bernard L. Orozier, highways engineer, and Philip B. Perlman, city solicitor, constituting the hoard of estimates of the Mayor and City Council of Baltimore, all of whom are residents in and taxpayers of the City of Baltimore, sueing on behalf of themselves and any other taxpayers of the said City of Baltimore who may desire to become parties hereto, respectfully represents unto your Honor: Pirst — That section 3 of article 11 of the Constitution of Maryland provides that from and after the adoption of a charter by the City of Baltimore, the mayor of Baltimore and the city council of the City of Baltimore, subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said city, including the power to repeal or amend local laws of said city enacted by the General Assembly, upon all matters covered by the express powers granted as provided in said section and article of the Constitution; that a charter in ae-' eordance with the provisions of article 11-A of the Constitution of Maryland, was adopted by the voters of the City of Baltimore at the general election held in the month of Uovember, 1918; that among the powers granted to the City of Baltimore, and referred to in section 2 of article 11-A of the Constitution of ⁶⁵⁷ Maryland, as set forth in section 6 of article 4 of the Public Local Laws of Maryland, are those set out in subsection 14 of said section 6 of artcile 4 of the Public Local Laws of Maryland, caption “Licenses”: “To license, tax and regulate all businesses, trades, avocations or professions. To license, regulate, tax or suppress hawkers, peddlers, brokers, pawnbrokers, intelligence officers, street exhibitions or fortune-tellers” ; and those set out in subsection 18 of said section 6 of the said article: “To pass ordinances for preserving order, and securing property and persons from violence,' danger and destruction, protecting the public and city property, rights and privileges from waste or encroachment, and for promoting the great interest and insuring the good government of the city.

To 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. * * * ” That before the adoption of said charter there were in force in the Oity of Baltimore certain local laws enacted by the General Assembly with respect to auctions and auctioneers, said Acts of the General Assembly being codified as sections 235 to 278 inclusive of article 4 of the Code of Public Local Laws of Maryland; and that a charter having been adopted by the voters of the Oity of Baltimore the mayor of Baltimore and the city council of the Oity of Baltimore were clothed with full power to repeal or amend the provisions of said local laws in force in the City of Baltimore with respect to auctions and auctioneers. Second — That on the 15th day of February, 1924, Ordinance Ho. 105, having been duly passed by the city council of Baltimore, was regularly approved by the mayor of the Oity of Baltimore, and thereby became a law binding upon all persons within the limits of Baltimore City. A certified copy of said ordinance is attached hereto marked “Petitioner's Exhibit Ho. 1” and prayed to-be taken as a part hereof. The said ordinance repealed seetions 235, 236, 237, 238, 266, ⁶⁵⁸ 267, 268, 269, 270, 274, 275, 276, and 277 of article 4 of tlie Code of Public Local Laws of Maryland (Revised Edition of 1915), title “City of Baltimore,” sub-title ‘.‘Auctions,” and'repealed and reordained with amendments sections 239, 240, 241, 243, 244, 245, 246, 248, 249, 253, 255, 257, 263 and 272 of said article 4 to be effective in connection with sections 242, 247, 250, 251, 252, 256, 258, 259%, 264, 265, 271, 273 and 278 of said article 4, which have not been repealed and are now in full force and effect.

Third — That Charles D. Gaither is police commissioner for the City of Baltimore, having been ajipointed under and by virtue of chapter 559 of the Acts of 1920, which act provided that he should have and exercise all of the powers prior to that time vested in the Board -of Police Commissioners; that by section 744 of article 4 of the Public Local Laws of Maryland it was the duty of the board of police commissioners to enforce all laws and ordinances of the Mayor and City Council of Baltimore not inconsistent with the provisions of the said section or any law of the State which may be properly enforced by the police force, and that this duty has now developed upon the said Charles D. Gaither as police commissioner for the City of Baltimore. Fourth — That said Ordinance Ho. 105 is being constantly violated by persons who have conducted auction sales, and who still continue to conduct auction sales without first having complied with the terms of the said ordinance; that your petitioners have complained to the said Charles D. Gaither of these violations and of threatened violations in a letter dated the 15th day of July, 1924, a copy of the said letter being-attached hereto marked “Petitioners’ Exhibit Ho. 2” and prayed to be taken as a part hereof; that the said Charles D. Gaither has refused, and continues to refuse, to enforce the said ordinance, and on the 16th day of July, 1924, replied to the said letter stating that he would take no action whatsoever in the premises, a copy of' the said reply being attached ⁶⁵⁹ hereto marked “Petitioners’ Exhibit Ro. 3” and prayed to be taken as a part hereof. Eifth — That by reason of the refusal of the said Charles D. Gaither, police commissioner, to enforce said Ordinance Ro. 105, no person has applied for an auctioneer’s license under said ordinance, and the Mayor and City Council of Baltimore is, therefore, deprived of a substantial amount of revenue from the license fees which are required to be paid to it under the terms of the said ordinance; that the said ordinance contains certain regulations affecting the conduct of auctions which are not now being enforced, and that your petitioners and all other taxpayers of the City of Baltimore are greatly injured and damaged thereby. Wherefore, your petitioners pray that a writ of mandamus may he issued directed to Charles D. Gaither, police commissioner for Baltimore City, or to whoever may he acting in his stead as police commissioner for Baltimore City, commanding him to forthwith exercise the discretion vested in him and take whatever steps he may deem proper to compel the compliance by all persons in the City of Baltimore with the terms of Ordinance Ro. 105, approved the 15th day of Eehruary, 1924.

With the petition were filed, as exhibits, a certified copy of the ordinance, a letter from the Mayor to the commissioner of police, and a letter from the latter to the former in reply. The Mayor in his letter informs the commissioner that the ordinance in question is being persistently violated by a number of persons who- are conducting auction sales without having complied with the terms of the ordinance, and requests that the commissioner take steps to prosecute such violators. The commissioner replying states that the Attorney General in a letter to the Governor has held the ordinance to be invalid; he calls the Mayor’s attention to the fact that he has made no appointments by virtue of said ordinance and ⁶⁶⁰ concludes by stating positively that “I decline to- take any action whatsoever toward the arrest of the auctioneers appointed 'by the Governor who have qualified and who are now conducting their business in Baltimore City, and I do not consider said auctioneers liable to criminal prosecution, because on the advice of the Attorney General, I regard said ordinance as a nullity.” Sections 235 to 238, inclusive, which were repealed by the-ordinance, related to the imposition of duties. It is stated, in appellees’ brief that this charge is no longer imposed, but it does not appear why, or by what authority the collection of these duties has been abandoned.

Sections 266. to 270, inclusive, which were repealed by the ordinance, relate to statements required to be made to- the comptroller-in connection with the duties to be collected, the last mentioned section making it unlawful for the Governor to- nominate to the Senate as auctioneer any person who shall nofr have settled for all auction duties. Sections 274 to 277, inclusive, which were repealed by the ordinance, relate to the disposition of the proceeds of auctioneers’ duties. It is said in appellees’ brief, and not controverted by appellant, that all the sections relating.to. duties had become obsolete and' were no longer in force; but there is no. evidence of this. The sections amended are as follows.: Section 239 is amended by the- ordinance so- as to eliminate the provisions relating to auction duties.

Section 240 is amended so as to transfer the power of appointment from the Governor to the Mayor and so1 as to increase the maximum number of auctioneers from thirty to-fifty. Section 241 is amended so as to provide that the bond of $5,000 shall be given to the 'Comptroller of the City of Baltimore instead of the State Treasurer, and so as to require-the license fee to be paid to- the collector of water rents and licenses of Baltimore City instead of to- the State Treasurer. This section as amended requires the bond as security for the-proper conduct by the auctioneer in carrying out the provi ⁶⁶¹ sions of the law, and omits the condition as to1 the payment of the duties, which appears in this section of the statute. Section 24-3 as amended substitutes city officials for state officials, and similar substitutions are made in sections 244, 24:5, 246, 248, 249, 253, 255, 257, 263 and 272.

On the filing of said petition and exhibits an order was passed requiring the defendant to show cause why the writ, should not issue. The answer of the respondent is as follows: The answer of Charles D. Gaither, commissioner of police, to the petition filed against him in this court by Howard W. Jackson, mayor, et al., in the above entitled case, and for cause why the writ of mandamus therein prayed should not issue, respectfully represents: 1. Answering the first paragraph of said petition your respondent refers to the Constitution and laws of the State of Maryland, to which reference is made in said first paragraph of said petition for a correct statement of what said Constitution and laws, provide, and your respondent denies that by virtue of the adoption of its charter pursuant to article 11-A of the Constitution of Maryland the mayor of Baltimore and the city council of the City of Baltimore are clothed with full power to repeal or amend the provisions of the law in force in the City of Baltimore with respect to auctions and auctioneers. 2. Your respondent admits the passage of Ordinance Ho. 105 referred to in the second paragraph of said petition, and your respondent admits that the Petitioners’ Exhibit Ho. 1 is a duly certified copy of said ordinance.

But your respondent says that said Ordinance Ho. 105 is invalid and void. 3. Your respondent admits the matters and facts set forth in the third paragraph of said petition. 4. Your respondent admits the matters and facts stated in the fourth paragraph of said petition and again says that Ordinance Ho. 105 is invalid and void, and for this reason your respondent has refused and ⁶⁶² now refuses to enforce the provisions of said