Creaghan v. City of Baltimore
| Decision Date | 03 April 1918 |
| Docket Number | 25. |
| Citation | 104 A. 180,132 Md. 442 |
| Parties | CREAGHAN et al. v. MAYOR, ETC., OF BALTIMORE et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.
Suit by Thomas J. Creaghan and Samuel G. Imwold against the Mayor and City Council of Baltimore and John D. Blake, Commissioner of Health. From a decree dismissing the bill, plaintiffs appeal. Affirmed.
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Isaac Lobe Straus, of Baltimore, for appellants.
Alexander Preston, Deputy City Sol., of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellees.
This appeal is from a decree of the circuit court of Baltimore city sustaining a demurrer to and dismissing the bill of complaint filed by the appellants against the mayor and city council of Baltimore and John D. Blake, commissioner of health, to have Ordinance No. 262 of the mayor and city council of Baltimore declared null and void, and for an injunction restraining the enforcement of the same.
The bill alleges:
That the plaintiff Thomas J. Creaghan was a resident and taxpayer of Baltimore city, and at the time of the filing of the bill, and for 28 years prior thereto, was engaged in the retail milk and dairy business in Baltimore city, during all of which time he had conducted the business in a proper and sanitary manner, and had delivered to his customers healthy milk and dairy products; that the plaintiff Samuel G. Imwold was a resident and taxpayer of Baltimore county, and owned and operated a dairy farm in that county, having in his herd about 100 cows, and at the time of the filing of the bill milking 60 cows; that he retailed loose milk, the product of his own herd and the herds of others; that he maintained his herd in a healthy and sanitary condition, "and that the herds of the others from whom he produces milk" were likewise kept in a healthy and sanitary condition that his plant in Baltimore county, which was of great value, had been inspected by city inspectors and state inspectors; that he had never had any "trouble under such inspection"; "that for 28 years past he has retailed milk to the consumers in Baltimore city from the churn, properly iced, of high grade, healthy, and fit for human consumption; that all of the assistants at said dairy farm and engaged in delivery of the product thereof are also kept in a clean, healthy, and sanitary condition."
The bill further alleges:
That on the 1st day of June, 1917, the mayor and city council of Baltimore passed an ordinance, known as Ordinance No. 262 which provided, in section 6, that it should take effect five months after the date of its passage; that there was no statute of the state authorizing the ordinance, and that the same is "unconstitutional and in contravention of the twenty-third paragraph of the Bill of Rights of the state of Maryland and the Fourteenth Amendment of the Constitution of the United States, in that it deprives citizens of Baltimore city and nonresidents of Baltimore city of their property without due process of law, and without any warrant or authority whatsoever, and interferes with their personal liberties"; that "many portions of said ordinance are void in that it attempts to empower said commissioner of health to use unlimited and unbounded discretion in granting or refusing or revoking permits therein provided for, and does not undertake to provide any general rules or regulations limiting the exercise of said discretion"; that it "fails to provide for proper notice and hearing or appeal from the results of the exercise of such discretion as therein provided to any properly constituted judicial tribunal, so that the powers attempted to be granted to said commissioner of health may be exercised in a whimsical, capricious, ignorant, fraudulent, or dishonest manner without any opportunity to your orators or either of them for an appeal from or a correction of such action on the part of such commissioner of health"; "that such regulations as are prescribed by said ordinance are arbitrary, unreasonable, unfair, unjust, and the provisions thereof provide for the exercise of the will or discretion of a municipal officer unrestrained by any prescribed general rule of law, placing him in a position where he may give permits to some and refuse permits to others under the same conditions, and permit such citizens as he may like to conduct their lawful business and prevent others from so conducting their lawful business to the great hurt and detriment of such others, to their ruin and the confiscation of their property"; that the "ordinance attempts to delegate legislative power to the commissioner of health, in that it attempts to empower him to make regulations for the sale of milk or cream below the requirements for standard milk pasteurized and standard cream pasteurized, for sterilization of milk, for standardization or adjustment of milk, for the requirement for the production of the aforesaid grades of milk, for the production, pasteurization, and handling of all milk, skimmed milk, or cream held, kept, or offered for sale, sold or delivered for consumption in the city of Baltimore, or used for the manufacture of ice cream or butter, buttermilk, or other fermented milks, whey, or curd in the city of Baltimore, for the increasing of temperature for pasteurization, for the application of the tuberculin test, for the making of the grades of milk established or attempted to be established by said ordinance, for excusing from compliance with the expressed terms of said ordinance, for the naming of the conditions under which selected milk pasteurized or selected cream pasteurized may be sold in Baltimore city, for excusing compliance otherwise necessary under rule 5, section 59E of said ordinance, for keeping, offering for sale, selling, delivering, or using in the city of Baltimore milk or cream below standard milk or cream, for discoloring or denaturing milk or cream, for keeping milk at a higher temperature than otherwise by said ordinance allowed, for inspecting or investigating the herd, the farm, and its equipment of the producer outside of Baltimore city and the jurisdiction of the defendants and each of them, for producing, handling, selling, or distributing raw milk and cream, for removing infected cattle from herds outside of Baltimore city, for regulating and fixing the character and equipment of the farm for the production of raw milk outside of Baltimore city, for declaring the conditions under which any condensed milk, condensed cream, evaporated milk, evaporated cream, or other milk or cream products may be sold in Baltimore city, and, generally, to transact many other things without legislative assent"; that the "enforcement of the powers thus attempted to be conferred upon the commissioner of health will unequally affect the rights of your orators and of other persons engaged in like trade or business *** and cause other irreparable damage," and "that all and each of said powers so attempted to be conferred are ultra vires"; "that, although the respective business of your orators, as aforesaid, are not now and never have been nuisances in fact or in law, nevertheless, under the terms of said ordinance, they may be so declared by the mere dictum of said commissioner of health, and your orators may be deprived of their business and means of livelihood;" that the ordinance, if enforced, will forbid the entrance of perfectly clean and healthy milk into the city of Baltimore, "except at the pleasure of the commissioner of health"; that under the provisions of the ordinance it will take effect on the 1st day of November, 1917, and that the defendants had given notice to the plaintiffs and others that the ordinance would be enforced at that time; that the enforcement of the ordinance would be ruinous to the established business of the plaintiffs and each of them, and of the milk business of the majority of milk dealers in Baltimore city, and the damages arising from such enforcement would be irreparable; and that, "owing to war conditions," and the scarcity of labor and metal, it had been impossible ever since the passage of the ordinance to make such "changes in the plants of dairies operating in Baltimore city and in milk-producing farms and plants as are necessary in order to comply with its provisions."
The bill then prayed that the ordinance referred to, "and each and every part thereof," be declared null and void, and that the defendants be enjoined from enforcing or attempting to enforce it.
The ordinance, which was filed as an exhibit with the bill, is entitled:
"An ordinance to repeal sections 55A, 56A, 56B, and 59 of article 14 of the Baltimore City Code of 1906, title 'Health,' subtitle 'Food, Food Products and Milk,' as amended by Ordinance 103, approved May 6, 1908, and to re-ordain said sections with amendments, and to add twelve new sections to said article, to be designated sections 55E, 59A, 59B, 59C, 59D, 59E, 59F, 59G, 59H, 59I, 59J and 59K; and to further regulate the production, manufacture, handling, sale and distribution of milk and cream products in Baltimore city." Notwithstanding the ordinance itself covers more than 26 printed pages, and is an amendment of and an addition to article 14 of the Baltimore City Code of 1906, as amended by Ordinance 103 of May 6, 1908, containing many other provisions dealing with the same subject-matter, the plaintiffs nowhere in their bill refer to the particular section or sections of the ordinance claimed to be open to the objections urged against it, and the enforcement of which would operate to their injury. Nor have counsel for the appellants, in their brief, pointed out the particular sect...
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