Mayor of Baltimore v. Sitnick

Finan, J., delivered the opinion of the Court. These two appeals 1 were consolidated by the lower court and present the question of the validity of Ordinance Nos. 370, 491, 739 and 1219, now comprising Article 19, Sections 51 through 61 of the Baltimore City Code (1966 Ed.), as amended, enacted by the Mayor and City Council of Baltimore to establish minimum wage standards for certain private employments within the City’s jurisdiction. In both cases the defendants are the City, the members of the City Minimum Wage Commission and the Commission’s Executive Director. In No. 295, the plaintiffs are Milton Sitnick, t/a Hilton House, a tavern business in Baltimore City, and Baltimore Licensed Beverage Association, Inc., an organization representing certain tavern owners in the City.

There is a tavern exemption in the State law Code (1964 Repl. VoL, 1968 Supp.) Art. ³⁰⁷ 100, Sec. 82 (e) (11) limited by volume of business; however, taverns are included in the City law. In No. 297, the plaintiffs are Milton J. Firey and Margaret F. Hewitt, partners t/a Congress Hotel Company, which operates a hotel in Baltimore City, and Maryland Hotel and Motor Inn Association, Inc., an organization representing certain hotels and motels in the State of Maryland. Hotels are included in both the City and State laws.

However, the municipal wage rate at the time of suit was $1.25 per hour while that of the State was only $1.00. By subsequent enactments these rates have since been changed to $1.40 and $1.30 respectively. Through an invalidation of the City law, the taverns would escape minimum wage regulation entirely, and the hotels would be required to comply with the lower State standard. Appellee, Sitnick, petitioned the Superior Court of Baltimore City for a declaration that the City law, inter alia, conflicted with the State law and was, therefore, void under Article XI-A, Section 3 of the Maryland Constitution.

Appellee, Firey, filed a bill of complaint in the Circuit Court of Baltimore City praying a declaratory decree that the City law, inter alia, conflicted with the State law and was, therefore, void under both the constitutional provision and the city charter, and that the passage of the State law pre-empted the field of minimum wage regulation. The four ordinances which comprise the City law and its codification, the Rules and Regulations of the Baltimore Minimum Wage Commission and a “comparison schedule” between the City and State minimum wage provisions were attached to the Firey complaint as exihibits. Appropriate injunctive relief was requested in both cases. Although various other issues were raised in each case, only those mentioned were decided by the trial court and raised by this appeal.

Maryland Rule 885. We think a recitation of the legislative chronology helpful towards an understanding of the issues involved. December 3, 196k — Baltimore City Minimum Wage Ordinance (No. 370) was enacted. It created the Mini ³⁰⁸ mum Wage Commission to enforce the law and set a minimum wage level at $1.00 per hour for certain employments in the City.

Sections 174 to 183 of Article 24 of the City Code (1950 Edition). The declaration of policy and finding of facts contained in Section 174 (now Section 51 of Article 19 of the 1966 Code) were simply that many persons in the City were being paid wages insufficient to maintain a minimal standard of living, that such condition adversely affected their well-being, the general economic and social welfare of the inhabitants of the City, and that legislation was therefore necessary to establish minimum standards. April 21, 1965 — Ordinance No. 491 repealed and reordained the City law with amendments. May If, 1965 — Chapter 697 of the Acts of 1965, a public general law applicable uniformly throughout the State, was enacted.

It established the State Minimum Wage Law as Article 100, Sections 81-93 of the Maryland Code, empowered the Commissioner of the Department of Labor and Industry to enforce the law, and set a minimum wage level of $1.00 per hour. The declaration of policy and findings of fact contained in Section 81 substantially paralleled those which motivated the City Council. June 1, 1965 — Effective date of rules and regulations promulgated by the City’s Minimum Wage Commission. February 21, 1966 — Ordinance No. 739 repealed and reordained the City law with amendments.

April 21, 1967 — State law amended by Chapter 393 of the Acts of 1967, including phased increases in the minimum wage to $1.15 and then $1.30 by June 1,1969. December U, 1967 — Ordinance No. 1219 repealed and reordained the City law with amendments including an increase in the minimum wage to $1.25 per hour with subsequent escalation to $1.40 by September 1,1968. 1968 — The General Assembly was silent on the subject of minimum wages. Judge Albert L. Sklar heard both cases on the City’s demurrers, no testimony being taken. At the hearing, the ³⁰⁹ plaintiffs (appellees) also moved for summary judgment, in the event that the City’s (appellant’s) demurrers were overruled.

The lower court overruled the City’s demurrers and rendered a declaratory judgment in favor of the plaintiffs, holding that the Ordinances (known as the Baltimore City Minimum Wage Law) was unconstitutional. The lower court relying heavily on two fairly recent New York cases, Wholesale Laundry Board of Trade, Inc. v. City of New York, 17 A.D.2d 327 , 234 N.Y.S.2d 862 (1962) aff. 12 N.Y.2d 998 , 239 N.Y.S.2d 128 , 189 N.E.2d 623 (1963), and Wholesale Laundry Board of Trade, Inc. v. New York, 43 Misc. 2d 816 , 252 N.Y.S.2d 502 (Sup. Ct. 1964), aff. 22 A.D.2d 762 , 252 N.Y.3.2d 955, aff. 15 N.Y.2d 604 , 255 N.Y.S.2d 265 , 203 N.E.2d 652 (1964) (cases which we shall discuss later in this opinion), rationalized that the City law was in conflict with the State of Maryland Minimum Wage Act (Code (1964 Repl. Vol.), Art. 100, §§ 81-93), 2 and because of that this was an area of legislative regulation which had been pre-empted by the State of Maryland, the opinion stating: “The City argues that there is no fatal conflict between the State and City law and that the Ordinances are supplemental and complementary to the State law.

If the enactments of the Ordinances resulted in only additional regulations to the State law, then some would be termed ‘supplemental’, however, I find that it is clear that there exist many inconsistencies and that there is no hope of reasonable reconcilation between the State law and City law in the areas therein touched upon.” For the reasons which we shall hereinafter relate, we are in disagreement with the decision of the court below. We start with the recognition of the general proposition that Baltimore City, as a municipal corporation, had ³¹⁰ the authority under its police powers to establish by ordinance minimum wage regulations. West Coast Hotel Company v. Parrish, 300 U. S. 379 (1937) ; Parish Council, Etc. v. Louisiana Highway, Etc., 131 So. 2d 272 (La. Ct. App. 1961) ; Art. II, §§24 and 27 Baltimore City Charter (1964 Revision).

The question is, to what extent was that authority circumscribed, restricted or abrogated by the action of the State moving into this field of legislation and establishing a comprehensive scheme of statewide regulations. A discussion of this question necessarily leads into a consideration of Article XI-A of the Maryland Constitution, the “Home Rule Amendment,” 3 measured against the limitations superimposed by the Legislature. Heubeck v. City of Baltimore, 205 Md. 203, 208 , 107 A. 2d 99 (1954). The Maryland Constitution, Article XI-A, § 2 provides: “The General Assembly at its first session after the adoption of this amendment shall by public general law provide a grant of express powers for such County or Counties as may thereafter form a charter under the provisions of this Article.

Such express powers granted to the Counties and the powers heretofore granted to the City of Baltimore, as set forth in Article U, Section 6, Public Local Laws of Maryland, shall not be enlarged or extended by any charter formed under the provisions of this Article, but such powers may be extended, modified, amended or repealed by the General Assembly.” (Emphasis supplied.) In restricting the exercise of the legislative powers thus granted, Section 3 of Article XI-A provides that ³¹¹ there shall be no conflict between the ordinances of the City and the public general laws of the State: “=•- * * All such local laws enacted by the May- or of Baltimore and City Council of the City of Baltimore * * *, shall be subject to the same rules of interpretation as those now applicable to the Public Local Laws of this State, except that in case of any conflict between said local law and any Public General Law now or hereafter enacted the Public General Law shall control.” (Emphasis supplied.) In the instant case we are of the opinion that the City law neither conflicts nor is inharmonious with the provisions of the State law, nor conflicts with any intention of the Legislature to reserve to itself the exclusive right to legislate on the entire subject matter, as we shall discuss in this opinion; therefore, the only theory by which the City law would be a nullity or invalid, is on the premise that the presence of the State in this field of regulation amounts to a pre-emption of the field by occupation, with the resulting ouster of local power to legislate. As we read the decisions of our predecessors, this Court has on appropriate occasions followed the doctrine of “concurrent powers” when construing legislative enactments treating on the same subject matter passed by both the State and a political subdivision. At the same time, we are aware that there have been occasions when this Court has recognized the doctrine of pre-emption by occupation. Before proceeding to a discussion of these two theories we deem it helpful to contemplate the political philosophy behind “Some Rule.” One of the objectives of “Home Rule” was to assure to the political subdivisions of the State the power of self-government and freedom from interference, by the Legislature, in the exercise of that power. 4 “Article XI-A ³¹² grants to a ‘Home Rule’ political subdivision full power to enact local laws on the subjects covered by the Express Powers Act and denies the General Assembly power to enact public local laws on such subjects for the county.” Murray v. Director of Planning, 217 Md. 381, 387 , 143 A. 2d 85 (1958); see also Scull v. Montgomery Citizens League, 249 Md. 271, 274 , 239 A. 2d 92 (1968).

However, it is obvious that the Legislature by retaining the power to modify, amend or repeal a provision of a municipal charter and by preserving the dominance of a public general law over local ordinances, in an area where conflict may exist (Planning Comm. v. Silkor Corp., 246 Md. 516, 521 , 229 A. 2d 135 (1967)), intended that there be a functional interplay between State and local legislation. There have been times when this has not lent itself to easy solution, although the existence and exercise of “concurrent power” has been recognized with some frequency. 5 The landmark case in this area, concerning the construction to be followed when there is an overlapping of state and local enactments dealing with the same subject matter, is Rossberg v. State, 111 Md. 394 , 74 A. 581 (1909), cited in 37 Am. Jur., Municipal Corporations, Section 165. In Rossberg , the appellant was convicted for violating a Baltimore City ordinance regulating the sale and use of cocaine.

The same prohibitions were contained in the State law, but the ordinance provided more severe penalties and enlarged the scope of criminal conduct, be ³¹³ yond that defined in the statute, by making the mere possession of the drug a misdemeanor. There was no disputing that the subjeet matter of the ordinance was one regarding which the State had enacted comprehensive regulation and that the ordinance prohibited conduct which the State statute did not prohibit. The Court in upholding the validity of the City ordinance stated: “The first inquiry is as to the power of the municipal government of the City of Baltimore to pass the ordinance in question, or, in other words, whether such power has been delegated to it by the Legislature of the State. The powers thus vested in the city are broad and sweeping and are expressed in terms which indicate a liberal view of the need for broad powers for effective local government of a great city. * * Id. at 410 . “It follows from what we have thus far said that municipal authorities may be given concurrent power with the State to punish certain offenses, * * “* * * The true doctrine, in our opinion, is concisely stated in 28 Cyc. 701, as follows: ‘Such ordinances must not directly or indirectly contravene the general law.

Hence ordinances which assume directly or indirectly to permit acts or occupations which the State statutes prohibit, or to prohibit acts permitted by statute or Constitution, are under the familiar rule for validity of ordinances uniformly declared to be null and void. Additional regulation by the ordinance does not render it void.’ And when their validity is challenged such ordinances will receive favorable construction, and be sustained by the Court, unless their invalidity clearly appears. Wyse v. Jersey City Police Commrs., 68 N.J.L. 127 . ³¹⁴ “The' reason for this rule is well stated in Van Buren v. Wells, 53 Ark. 368 , as follows: ‘Municipal corporations are in some respects local governments, established by law to assist in the civil government of the country. They are founded in part upon the idea that the needs of the localities for which they are organized, ‘by reason of the density of population, or other circumstances, are more extensive and urgent than those of the general public in the same particulars.’ * * Id. at 415-417 .

The rationale of Rossberg has been buttressed by the opinions of this Court in American Nat’l Bldg. & Loan Assn. v. Mayor & City Council, 245 Md. 23 , 224 A. 2d 883 (1966) ; Mayor & City Council v. Stuyvesant Ins. Co., 226 Md. 379 , 174 A. 2d 153 (1961) ; Herman v. Mayor & City Council, 189 Md. 191 , 55 A. 2d 491 (1947) ; Eastern Tar Products Corp. v. State Tax Comm’n, 176 Md. 290 , 4 A. 2d 462 (1939) ; and Billig v. State, 157 Md. 185 , 145 A. 492 (1929). Cf. Heubeck v. Mayor & City Council, 205 Md. 203 , 107 A. 2d 99 (1954) ; and Levering v. Park Commr’s, 134 Md. 48 , 106 A. 176 (1919), both cases wherein the Court, although finding a conflict between a public general law and a public local law, cited Rossberg with favor.

See also Gaither v. Jackson, 147 Md. 655 , 128 A. 769 (1925), wherein the Court in considering the relationship between a public general law and a public local law said, “It may well be that the power could be exercised by both the city and state at the same time. But that need not be decided here.” Id. at 665 . In Stuyvesant, supra, the Legislature imposed comprehensive licensing and regulatory provisions upon corporate sureties doing business in this State. Code (1968 Repl.

Vol.) Art. 48A, Sec. 43, expressly pre-empted the field by denying local governments the power to require any additional licenses. The statute, however, did not regulate non-corporate sureties. Baltimore City enacted an ordinance regulating and requiring a license of any ³¹⁵ one engaging in the bail bond business within the City. This Court held that the City possessed concurrent police powers in the field and that its regulations concerning non-corporate sureties would survive, although the ordinance failed in respect to those parts in conflict with the State statute.

In Eastern Tar Products Corp., supra, this Court upheld a Baltimore City ordinance which tightened the procedure for the filing of tax exemptions for manufacturers, over and above that required by the public general law, stating: “* * * As stated in 43 C. J. 219, in reference to the subject of municipal ordinances, ‘As a general rule, additional regulation to that of the state law does not constitute a conflict therewith. The facts that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith. Rossberg v. State, 111 Md. 394 , 74 A. 581 .’ ” Id. at 296-297. The most recent expression of this Court on concurrent regulatory authority is found in American National, supra, wherein the appellants contended that the Legislature by enacting comprehensive regulations covering the savings and loan industry had, by occupation, preempted the field so as to foreclose the power of political subdivisions to place a tax on the industry in addition to that prescribed by the State statute.

This Court in rejecting the “pre-emption” concept adopted a cogent excerpt from Judge Prendergast’s opinion in the nisi prius court wherein he stated: “ ‘It would appear that the tests of general laws was devised, not to draw an impermeable line between the authority of the City and the State, but rather merely to define the inclusive limits of the State’s powers. ‘General’ under this test merely means that the subject is of suffi ³¹⁶ dent statewide effect to give the State authority to- legislate. It does not mean that it is not of sufficiently local effect to give the City at least concurrent power to legislate. The associations contend, in effect, that what is not a local law as far as the State is concerned cannot be a local law insofar as the City is concerned, i.e., that ‘general’ and ‘local’ are absolute terms and mutually exclusive. The Court of Appeals has never adopted this theory, but on the contrary, admitted in Gaither [supra] the possibility of concurrent power.

Loyola [Federal Savings and Loan Association] recognizes this possibility and counters it with the unconvincing argument that for something to be treated by both City and State simultaneously, it must be capable of division on a reasonable basis (e.g. difference of condition) in order to support that difference in treatment. The associations contend that the non-localized character of the savings and loan associations does not come within the test. Therefore since the tax is general within this test devised for the State and cannot be made divisible, it cannot be local as being within the City’s power to enact. This argument fails because, as the City Solicitor notes, the tax is imposed only on business within or fairly allocable to the City, and to that extent there is a reasonable basis for local taxing power, even if a similar tax by the State would be general and within the power of the Legislature.’ ” (Emphasis supplied in original) Id. at 31, 32.

Consonant with this Courts’ opinion in American National, supra, is the following excerpt from 37 Am. Jur. Municipal Corporations, § 165, citing Rossberg , which provides: “The mere fact that the state, in the exercise of the police power, has made certain regula ³¹⁷ tions does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal bylaw are not in themselves pernicious, as being unreasonable or discriminatory, both will stand.

The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are