Rossberg v. State

Pearce, J., delivered the opinion of the Court. The appellant, William Rossberg, indicted by the Grand Jury for the City of Baltimore for the violation of an ordinance of the Mayor and Ciy Council of Balimore known as the “Cocaine Ordinance,” approved June 19th, 1908, which prohibits the sale, furnishing, giving away, or having in possession, cocaine and kindred substances, or compounds thereof, except upon certain conditions provided in said ordinance, and which provides certain penalties for its violation. At the time of the passage of this ordinance there was in force a State law, being Chapter 607 of 1904, as amended by Chapter 523 of 1906, which forbid the selling, furnishing, or giving away of cocaine and of the same substances and compounds mentioned in said ordinance, except upon the same conditions substantially as provided in said ordinance, and which provided certain penalties for violation of said statute. The penalty provided by the ordinance is a fine of not less than one hundred, nor more than five hundred dollars, with imprisonment in jail for not less than six, nor more than twelve months, and if a licensed pharmacist, physician, dentist or veterinary surgeon, the forfeiture of his license.

The penalty provided by the State law is a fine of from $25 to $50 for the first offence; $50 to $100 for the second offence, and $100 to $200, with imprisonment in jail for not more than six months, for the third and subsequent offenses. The State law does not, as the ordinance does, make the mere possession of the drags mentioned a misdemeanor, nor does it provide at all, as the ordinance does, for the revocation of the offender’s license. The latter, therefore, is ⁴¹⁰ somewhat broader in scope, and its penalties are heavier. The indictment contained nine counts, covering selling, furnishing and giving away cocaine, and having the same in his possession, the traverser being a licensed pharmacist.

He demurred to the indictment and to each count, contending that the ordinance was invalid because of the existence of the State law dealing with and punishing the same offence dealt with by the ordinance. The case was heard by Judges Haklah, Stockbkidge and Riles, who overruled the demurrer, whereupon the traverser submitted under plea of non cul, and a verdict of guilty was rendered on the eighth count, charging a sale of cocaine to one Howard Nelson, and a fine of $100 and imprisonment in jail for one day was imposed, from which judgment the appeal was taken. While sustaining the demurrer, the lower Court, however, held that part of the penalty, which required the revocation of the license, to be unusual and oppressive, and therefore inoperative and void, but that its elimination as part of the penalty did not operate to destroy the general plan and intent of the ordinance, and left the rest of the ordinance in full operation and effect. 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 of broad powers for effective local government of a great city. They are contained in thirty-one sections of the City Charter as it appears in the Baltimore City Code of 1906, and cover twenty-seven pages of that volume. Section 18, entitled “Police Power,” is as follows: “The Mayor and City Council of Baltimore shall have full power and authority: 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- ⁴¹¹ promoting the great interests 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.

But no ordinance heretofore passed, or that shall hereafter be passed by the Mayor and City Council of Baltimore, shall hereafter conflict or interfere with the powers or the exercise of the powers of the Board of Police of the City of Baltimore, heretofore created, nor shall the said city, or any officer or agent of the city, or .of the Mayor thereof, in any manner impede, obstruct, hinder or interfere with the said Board of Police, or any officer, agent or servant thereof or thereunder.” Section 31, entitled “Welfare and other Powers,” is as follows: “The foregoing or other enumeration of powers in this article 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 article or the laws of the State, as may he proper in executing any of the powers either express or implied, enumerated in this section and elsewhere in this article, 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 he prescribed by ordinance; hut no fine shall exceed five hundred dollars, nor imprisonment exceed twelve months for any offense.” We have not been referred to, nor have we discovered, any other provisions in the charter of the city which relate to the questions involved in this case. Broader or more comprehensive police powers could not he conferred under any general grant of police power, for the purposes mentioned in see. 18, than those granted in that section, and when we consider the “Welfare Clause” of the charter, sec. 31, greater emphasis could not he laid upon the implied powers of the city for the maintenance of the peace, ⁴¹² good government, health and welfare of the city, than is there laid. That section expressly declares that, no enumeration of powers in that article shall be deemed to limit the power of the city, in addition thereto, to pass-all ordinances, not inconsistent with that article, or the laws of the State, as may be proper in executing any of the enumerated powers, express or implied, contained anywhere in said article. The able argument of the appellants practically ignores the existence of any implied powers, and apparently proceeds upon the theory that where there is a State law dealing generally with a specific evil, then, unless specific power is conferred upon the city to deal by ordinance with that specific evil, an ordinance attempting to deal with that evil is unauthorized and void.

The primary question in the case is therefore thus clearly and sharply defined. Eo adjudication to this effect was produced, and we believe none can be, nor, does the suggestion find support in. any text writer quoted or referred to in argument. Judge Cooley, speaking of the powers of municipal corporations, says: “The powers of these corporations are either express or implied. The former are those which the legislative act under which they exist confers in express terms; the latter are such as are necessary in order to carry into effect those expressly granted, and which must therefore be presumed to have been within the intention of the legislative grant.” Cooley Const.

Lim., 5th ed., page 233. In the present case, the legislative grant is not merely one of power to pass ordinances relating to specified police powers, regarded as a pari only of the general police power, but the grant is of “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.” The implication therefore is a necessary one, that notwithstanding the preceding clause of that section of the, charter enumerated certain purposes for which ordinances might be passed, the Legislature intended the city to have, in addition, the power to pass ordinances for any and all purposes relating to the exercise of the police power. If there ⁴¹³ fore the power to pass the ordinance in question can be considered as an implied power, it is well within the definition of an implied power given by Judge Cooley, since the whole police power cannot be exercised if the exercise of any part of such power is to be withheld because such part is not expressly granted. But we regard the power here in question as an express power, and this is so whether we look, in the construction of the charter, either to one or both of the sections heretofore reproduced.

The grant of all the police power is an express grant, and every part of the whole is therefore derived by express grant in sec. 18. If there could be any doubt of this, such doubt is set at rest by sec. 31, which, as we have said, expressly declares that the power to pass any ordinance not inconsistent with that article or with the laws of the State, shall not be limited by any enumeration of powers, anywhere in said article. We regard the legislative intent therefore to be clear, whether the power be viewed either as express or implied. We did not understand the appellant to deny that this powér can be delegated by the State to a municipal corporation.

It is true as a general proposition that the Legislature cannot delegate its power to make laws, but as expressed in 28 Cyc. 693: “After repeated challenge of municipal authority to exercise the police power, on the ground that it is a sovereign power, and therefore nondelegable, the doctrine is firmly established and now well recognized that the Legislature may expressly or by implication delegate to municipal corporations the lawful exercise of police power within their boundaries. * * * It may be full or partial, regular or summary; but it is never exclusive, as the Legislature has no authority to divest itself of any of its sovereign functions or powers.” And Judge Cooley says on page 229, of Const. Lim.: “The Legislature in such cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of ⁴¹⁴ State policy or dangers of local abuse to warrant the interposition.” But passing from this consideration the real and substantial contention of the appellant is two fold: 1st. That a penal ordinance punishing the same act as .that punished by State law, is invalid and void; and 2nd, that even if this cannot be sustained as broadly stated, that such an ordinance is invalid where it is inconsistent with the laws of the -State upon the same subject, and' that in this ease the ordinance in question is inconsistent with the State law punishing the same act punished by the ordinance. In Cooley’s Constitutional Limitations, 5th Ed., page 241, the author says: “The State law and the by-law may both stand together if not inconsistent.

Indeed, an act may be a penal offence under the laws of the State, and further penalties, under proper legislative authority,, be imposed for its commission by municipal by-laws, and the enforcement of .the one would not preclude the enforcement of the other. Such is the clear weight of authority, though the decisions are not uniform.” In McQuillan on Municipal Ordinances, a recent elaborate text-book, it is said: “It is entirely competent for the Legislature to confer in express terms such powers as will enable the local corporation to declare by ordinance any given act an offense against its authority, notwithstanding such act has been made by statute a public? offense and a crime against the State * * * and further penalties may he -imposed for its commission or omission by municipal