Jacobs v. Mayor of Baltimore

Parke, J., delivered the opinion of the Court. The amended bill of complaint in the pending cause was filed by John L. Smith, trading as Lord Baltimore Coal Company, against the Mayor and City Council of ³⁵³ Baltimore, a municipal corporation, and Charles D. Gaither, Police Commissioner of Baltimore City. For convenience the first-mentioned defendant will foe here called “City,” and the second, “Commissioner.” After a combined demurrer and answer of the City were filed, the City moved for leave to take testimony. The demurrer was withdrawn,/.

Earl Jacobs and Lenore B. Fowble were given leave to intervene as parties complainant, and the parties took testimony before the chancellor, who dismissed the bill of complaint. From this decree the intervening complainants have brought the appeal at bar. The original complainant carries on the business of buying, selling, trading in, and delivering coal in Baltimore City and other states. He takes orders from consumers of coal in the State of Maryland and purchases such coal in Pennsylvania, and then the coal is delivered in trucks of the complainant directly from Pennsylvania to the consumer in Baltimore.

The dealer also buys coal at his place of business in Baltimore and resells it to consumers in the city and elsewhere; and, as a coal broker, he further buys and sells coal on commission. The interveners allege that they are engaged in the business of selling or transporting coal in Baltimore City to consumers in that city and there act as brokers in that business. The allegations of the amended bill of complaint and the relief there sought are adopted by the interveners. The complaint is that, while the plaintiffs were severally carrying on their business, the City passed, on September 28rd, 1936, Ordinance No. 201, which became effective ten days later.

The plaintiffs charge that the ordinance is void because it is illegal and unconstitutional. On the ground of its invalidity the relief prayed is a decree (a) declaring the ordinance void; (b) enjoining the City and the Commissioner from attempting to enforce it; and, finally, (c) granting such other and further relief as the nature of the cause may require. The first objection to the ordinance is not pressed ³⁵⁴ and it is not found defective because of failure to comply in title or in unity of subject-matter with the requirements of the Baltimore City Charter, section 221 of article 4 of the Code (Flack) of Public Local Laws, vol. 1, pp. 1018, 1019. Baltimore v. Wollman, 123 Md. 310, 314 , 91 A. 339 .

The objections relied on go to the substance of the ordinance, which was to regulate in Baltimore the traders by retail in coal, and those persons who deliver coal to retail consumers. The ordinance embraces every retail coal dealer, who is defined to be any natural or legal entity severally or in association, his agents, servants, and employees, whether resident or nonresident, that shall engage in Baltimore City in the retail business of either selling or transporting coal to consumers in that city, or that shall there act as a broker in any such transaction or business. Every such dealer must have a license, which will be delivered to him, and which will then authorize him to act as, a broker, seller, agent, or transporter of coal to consumers within the geographical limits of the city. The application for a license must be made to the Municipal Bureau of Receipts, which receives it upon the payment of an application fee of one dollar and the submission of an application which shall contain information of (1) the name and business address of the applicant; (2) the purpose for which the license is desired; (3) the number, if any, of vehicles engaged in transportation which are owned, titled, and licensed in the name of the applicant and are to be used in the business, with their license, motor, and serial numbers and the type and make of the vehicles; and (4) the name of the surety on bond of $500 which the ordinance exacts.

As a prerequisite to the issuance of the license, the applicant shall make, execute, and deliver to the Bureau of Receipts a good and sufficient bond, with surety to be approved by its executive head, in the. penalty of $50.0, conditioned to save harmless any purchaser or purchasers involved in any transaction pertaining to any sale or delivery of coal ³⁵⁵ by the retail dealer wherein the purchaser shall suffer as a result of improper weighing or defective quality of coal delivered to him; and conditioned, also, to give to any party so suffering the right to maintain a direct action on the bond. If a licensee shall fail to maintain the bond as provided, the Bureau of Receipts shall revoke the license. The ordinance further provides that the license issued shall contain all the information required in the application and an identifying number of the particular trader, and this license shall be displayed in the principal office of the trader. The licenses shall expire on June 30th of every year and shall be issued on a compliance with the stated provisions and the payment of the license fee of twenty-five dollars a year.

If a license be issued for less than a year, the fee shall be apportioned on a monthly basis, but no fee shall be less than ten dollars and no refunds shall be allowed on revoked or remitted licenses. Every licensee shall receive, upon the payment of a fee of one dollar, a certificate for each vehicle that is set forth in the application as one to be used for transportation. The certificate shall contain specified details for the identification of the dealer and the vehicle, with the applicant and his vehicle described in the application. The certificate shall be carried upon the particular vehicle of transportation, and shall be shown to any law enforcement officer, at his request, and to any retail purchaser before delivery of any coal is attempted.

The ordinance makes similar provisions in respect of substitute or additional vehicles. There is a further obligation imposed upon the dealer to have his name and license number of a certain size placed and kept on the outer side of all vehicles used in the business. The ordinance declares it unlawful for any dealer or distributor within the terms of the enactment to deliver coal unless the quantity be weighed. In the event coal is sold from a load in bulk in partial deliveries, every such portion must be first weighed separately and a ticket, which shall certify the weight in pounds and that this ³⁵⁶ weight was determined on scales tested and sealed by the local Division of Weights and Measures, must accompany the delivery.

The ordinance provides that it shall not apply to “the sale of coal in carload lots to a single consumer, or the sale or delivery of coal over the railroad coal piers to vessels or boats in the Harbor of Baltimore, nor shall it 'apply to or regulate the sale of coal in single paper sacks, or by single peck or bushel, provided the exemption is not utilized to avoid the provisions of this ordinance, nor shall it apply to those persons who haul their own coal supply in trucks titled in their own name.” For a first violation of the ordinance a fine of $50 and costs or a term of thirty days in jail is prescribed; and for every subsequent violation a fine of $100 and costs or an imprisonment of sixty days in jail is specified. There is a section which provides that the invalidity of either a section or any part of a section shall not affect the validity of any remaining section or part of a section of the ordinance, in order that the legislative intention may be fulfilled; that, after the elimination of any parts which may be void, the ordinance shall be effective in the form left by the elimination. The objections to this ordinance are: (1) That it exceeds the legislative power of the municipality; (2) that it is an unreasonable, discriminatory, and arbitrary exercise of power; and (8) that it is violative of the twenty-third article of the Declaration of Rights of Maryland and of the Fifth and Fourteenth Amendments1 to the Constitution of .the United States in that the ordinance will deprive the persons within its terms (a)' of the equal protection of the laws and (b) of liberty and property without due process of law. 1. The City has granted to it “full power and authority : * * * “ (14) Licenses. “To license, tax 'and regulate all businesses, trades, avocations or professions.

To license, regulate, tax or sup ³⁵⁷ press hawkers, peddlers, brokers, pawnbrokers, intelligence officers, street exhibitions or fortune-tellers. “(18) Police Power. “* * * 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. * * * “(31) Welfare and Other Powers. “The foregoing or other enumeration of powers in this Charter shall not be held to limit the power of the Mayor and City Council of Baltimore, in addition thereto to pass all ordinances not inconsistent with the provisions of this Charter or the laws of the State as may be proper in executing any of the powers, either express or implied, enumerated in this section and elsewhere in this; Charter, as well as such ordinances as it may deem expedient in maintaining the peace, good government, health and welfare of the City of Baltimore; and it may provide for the enforcement of all such ordinances by such penalties and imprisonments as may be prescribed by ordinance; but no fine shall exceed five hundred dollars, nor imprisonment exceed twelve months for any offense.” Code of Public Local Laws (Flack) vol. 1, art. 4, sec. 6, subsecs. 14, 18, 31, pp. 848, 851, 875; R. B. Construction Co. v. Jackson, 152 Md. 671, 674 , 137 A. 278 ; Gaither v. Jackson, 147 Md. 655, 664, 665 , 128 A. 769 ; Rossberg v. State, 111 Md. 394, 413 , 74 A. 581 . The power to; license and to regulate the retail sale and delivery of coal in Baltiore City thus clearly appears to have been conferred. Furthermore, this power has long been exercised by the City. Code of Public Local Laws (Flack) vol. 1, art. 4, secs. 535-540, pp. 1103-1105; Baltimore City Code of 1927, art. 20, secs. 32-33; Ordinance No. 141, approved February 23rd, 1932; No. 960, approved March 20th, 1930.

And see regulatory measures, as, for example: Standard barrel for farm products (article 4 of Local Code, secs. 532-534) ; gas meters (sections 541-543); gaugers of casks and liquors (sections 544-551) ; inspection and weighing of hay and straw (sec ³⁵⁸ tions 552-568) ; measure and stamp of carts or vehicles engaged in hauling wood (sections 590-599) ; markets (sections 704-708); oysters (section 735). And see Baltimore' City Code of 1927, art. 20, sec. 1 (hay and straw) ; sections 4-23 (weights and measures) ; sections 24, 31 (charcoal) ; section 34 (firewood) ; sections 35, 36 (ice) ; sections 37, 38 (corn and mill feed); article 25, sections 45-51; articles 27 and 28. The grant of power to the municipality is broad and comprehensive, and there can be no question of its possession of the corporate capacity to provide by ordinance for license and regulation of all kinds of business. The authority to impose a license fee may be employed as a regulatory measure or to produce revenue.

Gaither v. Jackson, 147 Md. 655, 664 , 128 A. 769 . However, the fee exacted by the ordinance at bar has no relation to the value of the property which is the subject-matter of the business or occupation to be licensed, nor does the fee bear any relation to the equipment used in the business, to be licensed. Again, the amount of the fee is not in excess of what would be reasonably necessary to issue the licenses and! to inspect and regulate the business. So, the ordinance may not be regarded as a revenue measure, but must be considered as a regulatory measure in the exercise of the police power granted the municipality, unless it be'either so unreasonable that it could not be assumed to have been contemplated by the grant of power or be in violation of some constitutional safeguard.

Dillon, Munic. Corp. (5th Ed.) secs. 661-666 and 709; Vansant v. Harlem Stage Co., 59 Md. 330 ; State v. Rowe, 72 Md. 548 , 20 A. 179 . ' The provisions of the ordinance do not appear to be unreasonable. Either similar or analogous provisions occur in the enactments of the General Assembly of Maryland or in the ordinances of the municipality. Supra.

An ordinance, such as the one in controversy, which prescribes an informative application, and the, issue of a particular license, with certificates of an authorized use of every vehicle of transportation, for display in the oper ³⁵⁹ ation of the business or occupation that must be conducted in accordance with regulations for identification and for a specified manner of weighing and delivery of the coal sold in the course of the business or occupation, and which also provides for an inspection of the coal sold in order to ascertain its conformity in quality and weight with express or implied representations, is an ordinance for the threefold purpose of preventing fraud and crime and its concealment; and these stated regulations plainly and reasonably tend in a substantial and appropriate manner toward the accomplishment of that purpose. This rational relation of means and end in the suppression of fraud and of crime and its concealment does not bring the ordinance within the saving scope of the police power unless it be for the public welfare as