Pfefferling v. Mayor of Baltimore

Fowler, J., delivered the opinion of the Court. The appellant filed a bill in the Circuit Court No. 2 of Baltimore City for an injunction to restrain the appel ⁴⁷⁶ lees, the mayor and city council of Baltimore and certain of its officers, from interfering with his possession and control of a certain market stall which is particularly described in the proceedings. The defendant, Brown, answered, but the city demurred. However the sole question involved is whether the ordinance 'No. 129 of said city relating to the regulation of markets is a valid and constitutional exercise of legislative power.

It appears that the defendant, Brown, was duly licensed to hold the stall one year from 1st May, 1895, and a similar license was issued to him on the 1st May, 1896, to hold also for a year from that date. Brown had not been occupying the stall himself, but had rented it to the plaintiff up to May 1st, 1896. The then existing ordinances of Baltimore City, Art. 35, sec. 21, provided that no stalls should be rented to any person who shall not intend to occupy the same during the term of said renting — and all such persons were required, May 1, 1896, to surrender licenses theretofore issued to them. It appears from the answer of the defendant, Brown, that he duly surrendered his license of May 1, 1896, and another was duly issued to him of the same date.

But a second license for the same stall dated the' 7th May, 1896, was issued to the plaintiff — upon the theory, as alleged by him, that the city had determined to enforce the ordinance then in existence under which licenses could be issued only to such persons as intended to occupy the stalls. In what manner it was determined, if it was so determined, by the city officer having the matter in charge that the defendant did not intend to occupy the stall it does not appear. In point of fact he alleges that he took possession. But it is conceded that the plaintiff, being in possession on the 1st May, 1896, he so remained until his license of May 7 was revoked under the ordinance No. 129, which was passed on the 23rd August, 1896.

It is the validity of this ordinance which is here assailed. . The plaintiff was allowed to hold possession of the stall for the full term named in his license that is to the 1st May, 1897, but .he demanded that his license should be renewed for another year from ⁴⁷⁷ said last mentioned date, which demand was refused and a license was issued to the defendant under the provisions of sec. 21 of said ordinance — the plaintiff’s license having been previously revoked as we have seen. Under the provision of its charter, Art. 4, sec. 671, 678, etc., Baltimore City has power to erect and regulate markets, and to lease, sell or dispose of the stalls and stands therein in any manner and for any term they may think proper. (See also Act of 1898, ch. 123, sec. 6 (Gen.

Powers) sub-division markets.) In the exercise of this power ordinances have been passed from time to time, and the construction of some of them have been made by this Court. It was held in the case of Rose v. The Mayor & City Council, 51 Md. 270 , that although the city owned a fee in the land on which Richmond market stands, yet the purchasers of stalls took only a qualified interest — not a freehold — but a right in the nature of an