McBriety v. CITY COUNCIL OF BALTIMORE

Horney, J., delivered the opinion of the Court. This is an appeal by Frederick P. McBriety and other property owners and taxpayers (the owners) from a decree of Circuit Court No. 2 of Baltimore City declaring that Ordinance No. 1077 1 (the ordinance) of the Mayor and City Council of Baltimore (the City), dated November 7, 1957— which provides for the registration and licensing of certain rooming houses and multiple family dwellings—was valid, and dismissing the supplemental bill of complaint with costs. On July 2, 1957, the owners filed an original bill challenging the validity of a similar ordinance (No. 994), dated June 10, 1957. After a hearing on the demurrer, the court (Cullen, J.) overruled it and issued an interlocutory injunction forbidding enforcement of Ordinance No. 994 pending the litigation relative to that ordinance.

The City reacted by causing the repeal and reenactment of the ordinance which is the subject of this appeal. When reenactment had been accomplished, the owners, with leave of the court, filed a supplemental bill on November 14, 1957, on behalf of themselves and all other taxpayers. A motion to extend the injunctive ²²⁸ relief to the reenacted ordinance was denied by the court (Cullen, J.). The individual plaintiffs-appellants, eleven in number, are,, owners, who rent or lease their properties to tenants of more than two dwelling units or two dwelling units and another occupancy.

The corporate plaintiff-appellant is a taxpayers’ protective association representing a membership of one hundred and seven property owners. The defendants-appellees are the City, the Board of Estimates, several city officials, the Police Commissioner, the Urban Renewal and Housing Commission and the Attorney General of Maryland. All of the defendants, other than the Attorney General, the City and the Police Commissioner, are city officials or agencies. The comprehensive, and somewhat novel, ordinance is, as its title and recitals indicate, aimed at the licensing and periodic inspection of certain rooming houses and multiple family dwellings and combinations thereof in order to eliminate the causes and unnecessary -burdens and hazards of overcrowding and, in the public interest, to assure compliance with existing laws and ordinances for the better protection of the public health, safety, morals and general welfare.

There was also a recital of the inadequacy of the “present” rooming house license fees to provide for the required inspectional service. In substance, the ordinance provides that “[no] person shall conduct or operate * * * any rooming house, multiple family dwelling, or any combination thereof, without * * * obtain [ing] a license * * and defines certain terms used in the ordinance such as the meaning of “person,” “operator,” “rooming house,” “multiple family dwelling,” “or any combination thereof,” “dwelling unit” and “rooming unit.” A “multiple family dwelling” is defined as a house, building or combination of buildings used or intended to be used “for more than two dwelling units or two dwelling units and any other occupancy,” and includes apartment houses, garden apartments and apartment hotels. Other provisions set forth certain administrative and operational procedures and requirements of the ordinance. The annual license fees were fixed at $3 per rooming unit, $5 per dwelling unit and $3 and $5, ²²⁹ respectively, for combinations of rooming and dwelling units, with máximums of $200 in each case.

The supplemental bill alleges in effect that the ordinance is unconstitutional and illegal because: [i]. It violates Article 23 of the Declaration of Rights in the Constitution of Maryland and the Fourteenth Amendment of the Constitution of the United States by denying “due process of law” and the “equal protection of the laws” in that— (a) The intended licensing of the “operation” of a multiple family dwelling as defined in the ordinance is neither reasonable nor required for the protection of the health, safety, morals and general welfare of the public and is an unreasonable and arbitrary exercise of the police power; (b) The ordinance is unnecessary for the protection of the public interests since it adds nothing to the existing and adequate building, police, health and fire regulations; (c) The intended classification of multiple dwellings— because it excludes one and two unit dwellings—is an abuse of the police power and bears no reasonable relation to the public interests; (d) The license fees bear no reasonable relation to the expenses of the intended licensing and inspection services; (e) There are unlawful delegations of legislative power to the building inspection engineer, the commissioner of health and the chief of the fire department; (f) There is an unlawful delegation of power to the police commissioner, who is an official of the State; (g) The provisions of the ordinance are vague, indefinite, and ambiguous; (h) The provisions of the ordinance for the revocation or denial of licenses are invalid; (i) The ordinance is discriminatory; (j) There is no provision for reinstatement or reissuance of a license after revocation; and 2 ²³⁰ (k) Section 15(b) of the ordinance invalidly seeks to impose criminal liability by a conclusive presumption. [ii] . It violates Section 28 of the City Charter in that the title is defective and deceptive. [iii] . It may be construed as a revenue measure, and if it is, it violates Article 15 of the Declaration of Rights.

All of the defendants answered and denied the illegality and unconstitutionality of the ordinance. There was testimony that there was no overcrowding and ' that the ordinance was discriminatory and unnecessary because it excludes one-and-two unit dwellings and imposes an additional special tax on multiple family dwellings; because properties which are less safe and have more occupants are not licenseable under the ordinance; because the existing regulations were adequate and were being enforced; because there were more deaths and injuries from fires and other hazards over a six year period in one-and-two family dwellings than in three-or-more family dwellings; and because the ordinance had destroyed the value of multiple family dwellings as income producing investments. But there was also testimony that there was no discrimination between the one-and-two unit dwellings and the multiple family dwellings as defined in the ordinance; that there were more violations of the health and fire codes in the buildings having more than two dwelling units than in those with less dwelling units; that the ordinance was necessary from the standpoint of health because it was possible to do a better preventative job with it than without it; that there were unlawful increases in the number of separate family units of which the city officials had no knowledge; that the number of dwelling units in a three-story house was of more importance from a fire safety standpoint than the number of occupants of the building because more gas and electrical units would be in use; and that the ordinance was part and parcel of the “Baltimore Plan” to control slum conditions and blight areas. Under § 6 of the Charter of Baltimore City (1949) the Mayor and City Council were given power: ²³¹ “[T]o provide for the preservation of the health of all persons” [paragraph 11] ; “to license, tax and regulate all businesses, trades, vocations or professions” [paragraph 16]; “to have and exercise * * * all the power commonly known as the [p]olice [p]ower to the same extent as the State has or could exercise said power” [paragraph 24]; and “to pass any ordinance, not inconsistent with the provisions of this Charter or the laws of the State, which it may deem proper in the exercise of any of the powers, either express or implied, enumerated in this Charter, as well as any ordinance as it may deem proper in maintaining the peace, good government, health and welfare of Baltimore City” [paragraph 39], There is no room for doubt that under this broad and comprehensive grant of charter powers the City has full power and authority not only to license for regulatory purposes but also to tax for revenue purposes the rooming houses, multiple family dwellings and combinations thereof, defined in the ordinance, which is the bone of contention in this case, unless for reasons, which we shall presently consider, the ordinance is unconstitutional or illegal.

See Jacobs v. Baltimore, 172 Md. 350 , 191 A. 421 (1937), [license to sell coal at retail]; Meushaw v. State, 109 Md. 84 , 71 A. 457 (1908), [tax on commission men]. See also Mason v. Cumberland, 92 Md. 451, 48 A. 136 (1901), [license fee for vehicles using streets]. Cf. Cambridge v. Water Co., 99 Md. 501 , 58 A. 442 (1904), [license fee for fire-plugs].

There is also a presumption that a municipal ordinance is reasonable and for the public good, and the burden of proving the contrary is on those who attack it. Lewis v. M. & C. C. of Cumberland, 189 Md. 58 , 54 A. 2d 319 (1947); Vet. Taxi Ass’n v. Yellow Cab Co., 192 Md. 551 , 65 A. 2d 173 (1949). In Tar Products Corp. v. Tax Comm’n, 176 Md. 290, 297 , 4 A. 2d 462 (1939), we stated that “reasonable doubts as to the validity of an ordinance should be resolved in its favor.” And in Md. Adv.

Co. v. City of Baltimore, 199 ²³² Md. 214, 222, 86 A. 2d 169 (1952), we held that “[t]he mere fact that an exercise of the police power may cause expense or loss [to an individual] does not overcome the presumption of validity.” This brings us to the consideration of whether the ordinance in question is unconstitutional or illegal for any of the reasons urged by the owners. [i] (a). Reasonableness. The ordinance has a reasonable relation to and is required for the protection of the public interests, and its enactment was not an unreasonable exercise of police power. While it is recognized that the law-making body may not arbitrarily or unreasonably exercise its power to regulate a business, trade or occupation, or to impose a tax thereon in such manner as would deprive a person of a right, privilege, immunity or property to which he is entitled, as is stated in Dasch v. Jackson, 170 Md. 251 , 183 A. 534 (1936), and in a number of other cases in this and other jurisdictions, it is certain, nevertheless, that the City Council has full power and authority to enact, within constitutional limits, such regulations as may be appropriate and necessary for the protection of the public interests.

Although it is not conclusive, the last recital in the ordinance states that the City Council found that the licensing and inspection of rooming houses, multiple family dwellings or combinations thereof was required to protect the public health, safety, morals and general welfare. Such a finding is entitled to great weight and courts will not ordinarily interfere to enjoin the enforcement of an ordinance embodying such precepts unless it is shown that the ordinance is arbitrary or unreasonable. See M. & C. C. of Balto. v. Wollman, 123 Md. 310 , 91 A. 339 (1914), and the cases therein cited. Moreover, the chancellor found as a fact that the finding of the City Council was corroborated by the weight of the testimony produced at the hearing before him and we do not find that he was clearly wrong.

Maryland Rule 886 a. We think it is clear that- the operation of the business of renting or leasing housing accommodations has a direct re ²³³ lationship to the public interests in the City of Baltimore and that the regulation thereof afforded by the ordinance is not only reasonable but is salutary. The argument advanced by the owners—which they claim was ignored by the chancellor —to the effect that the privacy of a lessee is not subject to regulation (a truth which the defendants-appellees do not even contest), overlooks the fact that it is the operators, who engage in the business of leasing multiple family dwellings, that are subjected to regulation by the terms of the ordinance, and not the tenants who lease from them. Moreover, it is not likely that a tenant would object to an occasional inspection of his place of abode for health, fire and other hazards.

In any event, since no lessee is a party plaintiff to this action, the argument advanced by the lessors—asserting on behalf of a hypothetical lessee a potential violation of a constitutional right—is premature. If, hereafter, a lessee should assert such right on his own behalf, the question, which will then be real and live, can be answered. Cf. Simpson v. Board of Appeals, 218 Md. 222 , 146 A. 2d 37 (1958).

(b). Necessity. Whether the ordinance was actually necessary is a question with which the courts are not concerned. A court does not pass upon the wisdom of an ordinance nor approve or disapprove it.

The function of the courts, if and when the question is raised, is to ascertain whether the ordinance exceeds constitutional limits. Givner v. Commissioner of Health, 207 Md. 184, 192 , 113 A. 2d 899 (1955). Moreover, the courts assume that municipal authorities have full knowledge of local conditions and that their determination, in the light of such knowledge, with respect to the necessity and reasonableness of a regulation to promote the public interests, is valid unless the contrary is affirmatively shown. 6 McQuillin, Municipal Corporations §§ 24.30, 24.52 (3rd ed. 1949). In this case, the City Council also found, and so recited—and there was evidence to the same effect—that many buildings were used to house more rooming and dwelling units than was permitted by law and that other buildings had been converted into such units without the permission of the building inspection engineer, which, not only resulted in a serious overcrowding affecting the health, safety and gen ²³⁴ eral welfare of the occupants, but was responsible to some -extent for the deterioration of parts of the city into slum areas.

The owners, in contending that the ordinance was not necessary to promote the public interests, assert that there is no overcrowding and that, in any event, the ordinance contains no new or additional provisions with regard to multiple family dwellings which were not in the then existing regulations. The chancellor found, and we see no reason to disturb his finding, that without registration, licensing and annual inspections the public interests would not be adequately protected and that the means employed by the ordinance to enforce the provisions of the building, health and fire codes would not amount to an unreasonable and oppressive interference with personal and property rights but, on the contrary, constituted a reasonable exercise of the police power. The general rule is that the exercise of police power is largely within the discretion of legislative bodies and that courts will not interfere except to correct a misuse or an abuse of power. In any event, where the relation of the regulation to the police power is fairly shown, as it was in this case, a court will not ordinarily intervene.

Standard Oil Co. v. Marysville, 279 U. S. 582 (1929) ; 6 McQuillin, op. cit. supra § 24.30. We know of no reason why the City Council may not enact, repeal and reenact its regulations with respect to its building, health and fire codes whenever the Council in the exercise of its discretion may deem it necessary or desirable so long as such legislation remains within the realm of reasonableness. (c), (i). Abuse of Power and Discrimination.

The classification of more-than-two dwelling units [or two dwelling units and another use] as “multiple family dwellings”—and the exclusion of one-and-two dwelling units—was not an abuse of police power nor was it discriminatory, and such classification bore a reasonable relation to the public interests. The owners, in addition to claiming that fire and other hazards were greater in single family dwellings than in multiple [two or more] family dwellings, contend that the ordinance does not apply