Atkinson v. Sapperstein

• Decision Date: 20 July 1948
• Docket Number: 38.
• Parties: ATKINSON v. SAPPERSTEIN.
• Court: Maryland Court of Appeals

60 A.2d 737

191 Md. 301

ATKINSON v. SAPPERSTEIN.

No. 38.

Court of Appeals of Maryland

July 20, 1948

Appeal from Circuit Court No. 2 of Baltimore City; E. Paul Mason Judge.

Suit by Earl Sapperstein against Hamilton R. Atkinson, Police Commissioner of Baltimore City, for a decree declaring certain statutory provisions invalid and for writ of injunction. A preliminary injunction was granted. From an order overruling demurrer to amended bill, the defendant appeals.

Reversed and bill of complaint dismissed.

Hall Hammond, Atty. Gen., and J. Edgar Harvey, Asst. Atty. Gen for appellant.

Max R Israelson, of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

The appellee, Earl Sapperstein, filed an amended bill of complaint in Circuit Court No. 2 of Baltimore City against Hamilton R. Atkinson, Commissioner of Police of Baltimore City, appellant, in which he alleged that his occupation was that of buying ice cream to sell or offer to sell from a motor vehicle in Baltimore City and in Kent County. He alleged that the provisions of Sections 24 and 25 of Article 56, 1939 Code, (Licenses), sub-head, 'Hawkers and Peddlers', are unconstitutional and void. He also made the following allegations.

Hamilton R. Atkinson, appellant, is charged with the duties of enforcing the above code provisions within Baltimore City and in the earnest pursuance of said duty, on April 8, 1948, issued an order to all captains of the Baltimore Police Force to arrest those persons violating the above sections of the code. Pursuant to said order, the appellant has caused the arrest of several persons, engaged similarly with the appellee, for failure to pay the license fee provided. The appellee had obtained his license for the period expiring on April 30, 1948, but would be subject to prosecution if he failed to renew this license by May 1st, 1948. The action of the appellant is improper and illegal because the aforesaid sections are unconstitutional and void.

Appellee prayed that a declaratory decree be passed declaring Sections 24 and 25 of Article 56, supra, invalid and void. He also asked that a writ of injunction be issued restraining and enjoining the appellant and his subordinates from any action or actions arising from the provisions of Sections 24 and 25, supra, until such time as a final judicial decision upon the questions raised is rendered, and for other and further relief.

The court ordered the preliminary injunction as prayed. A demurrer was filed to the amended bill by the appellant. This demurrer was overruled on May 27, 1948, and appellant ordered to answer. From that order the appellant appeals.

By Chapter 328 of the Acts of 1933, Sections 26 and 27 of Article 56, were repealed and re-enacted exempting Kent County from the provisions of the 'Hawkers and Peddlers License.' For convenience we will number these sections 24 and 25, which follow:

24. 'No hawker or peddler shall buy for sale out of the State, or buy to trade, barter or sell, or offer to trade, barter or sell within the State any goods, wares or merchandise until he shall have first taken out a license for that purpose, but nothing in this section shall apply to hawkers and peddlers of oysters and fish in their unpreserved and natural condition, or of fruits and vegetables perishable in their nature that are sold in their natural condition in this State. This section not to apply to Prince George's, Anne Arundel, Kent nor Cecil counties, as to which special local law exists.'

25. 'For every such license there shall be paid the following rates, to wit: For every license to travel on foot, the sum of one hundred dollars; to travel with a horse or other beast of burden and wagon or other vehicle, the sum of one hundred and fifty dollars; with two horses or other beast of burden and wagon or other vehicle, the sum of two hundred dollars; and with a motor truck or motor vehicle of any description whatsoever, the sum of three hundred dollars. This section not to apply to Anne Arundel, Prince George's, Kent nor Cecil counties.'

By Chapter 219 of the Acts of 1935, the last sentence of Section 25, supra, was stricken out and the following added:

'Provided that the license to travel with a motor truck or motor vehicle of any description shall be one hundred dollars for residents of Garrett County. This section not to apply to Anne Arundel, Prince George's nor Cecil counties.'

By Chapter 216 of the Acts of 1937, the last sentence of Section 24, supra, was stricken out and the following added:

', or to licensed merchants or traders in Allegany County who have maintained regular places of business for not less than five years and who deliver goods, wares or merchandise to regular customers or others with or without prior orders. This section not to apply to Prince George's, Anne Arundel nor Cecil Counties, as to which special local law exists.'

Sections 24 and 25 of Article 56 of the 1939 Code are therefore the same as those provided by Chapter 328, of the Acts of 1933, as amended by Chapter 219 of the Acts of 1935, supra, and Chapter 216 of the Acts of 1937, supra.

In Brown v. State, 1939, 177 Md. 321, 9 A.2d 209, in which the constitutionality of these same sections, Sections 24 and 25 of Article 56, 1939 Code, was attacked, this Court held them constitutional.

In order to establish the unconstitutionality of these sections, appellee makes numerous contentions. We will not discuss them in the same order in which they are presented in his brief.

1. Appellee strenuously contends that Section 25 of Article 56, supra, is invalid because without reasonable or justified classification the residents of Garrett County are granted a privilege, immunity or preference above that afforded to the residents of nineteen other counties and Baltimore City. He further contends that Section 24 of Article 56, supra, is invalid because without reasonable or justified classification it affords unto the merchants or traders in Allegany County, who come within the exemption, a privilege, immunity or preference above that afforded to the merchants or traders in other counties in the State and Baltimore City. The appellee here is complaining because he is taxed in Baltimore City and Kent County while residents of Garrett County are taxed at a lower rate and certain specified licensed merchants and traders in Allegany County are exempt. If either the Act of 1933 or the Act of 1935 is invalid, then the prior law is in force and is applicable to transactions in Allegany or Garrett County or citizens of Garrett County, as the case may be. In such event, the appellee's remedy lies not in attempting to be relieved of the tax himself, but in restraining the proper taxing officials from allowing the invalid exemption to others. It was said by this Court in the case of Baltimore Steam Packet Co. v. Mayor & City Council of Baltimore, 161 Md. 9, at page 22, 155 A. 158, 163: 'Upon a full consideration of the contentions of the appellant, it would seem that its real complaint is that it is now taxed, while competitors are exempt, resulting in a pecuniary advantage to the competitors over it to the extent of the tax which it is required to pay. If this be true, its remedy lies, not in attempting to be relieved of the tax itself, but in restraining the proper taxing officials from allowing the exemption to its competitors. Every taxpayer has a financial interest in seeing that all property in the state, properly the subject of taxation, should be taxed, because, by increasing the taxable basis, the rate necessary for the production of the expenses of the state and local governments will be reduced, and the individual's tax correspondingly lowered. Such a proceeding was approved by this court in Schley v. Lee, 106 Md. 390, 67 A. 252.' Board of Commissioners of Anne Arundel County v. Buch, Md., 58 A.2d 672, 675. The bill alleges that the appellee does business in Baltimore City and in Kent County. He does not allege that he does business in Allegany County or that any resident of Garrett County is licensed in Baltimore City at the $100.00 rate. It is a well known principle of law that one whose rights are not affected by a statute cannot raise the question of its constitutionality. Pittsburgh Steel Co. v. Baltimore Equitable Society, 113 Md. 77, 78, 84, 77 A. 255, affirmed by the Supreme Court of the United States in 226 U.S. 455, 33 S.Ct. 167, 57 L.Ed. 297; Bettendorf Axle Co. v. Field, 114 Md. 487, 494, 79 A. 724; State v. Case, 132 Md. 269, 272, 103 A. 569. Therefore, Point 1, supra, cannot be raised by the appellee. The Allegany County provision clearly is not applicable to transactions in Baltimore City. We express no opinion as to the validity of the Garrett or Allegany County provision or the construction of the former.

2. Appellee contends that as there has been an ordinance in effect in Baltimore City for more than fifty years, validly enacted under specifically expressed authority granted by the Legislature to Baltimore City, providing for the licensing and taxing of hawkers and peddlers, a public general law which does not specifically repeal the local enactment does not apply within the limits of Baltimore City. Article 25 Sections 46 and 47, of the 1927 Edition of the Baltimore City Code, makes it unlawful for a hawker or peddler to operate in Baltimore City without a license from the Bureau of Receipts of Baltimore City. The cost of said license in some instances is $5.00 and in other instances is $2.00. With this contention of the appellee, we cannot agree. Sections 24 and 25 of Article 56, supra, appear to have been first enacted by Chapter 341 of the Acts of 1856, as amended, while Sections 46 and 47 of Article...