Brooklyn Apartments, Inc. v. Mayor and City Council of Baltimore

• Decision Date: 03 November 1947
• Docket Number: 89.
• Parties: BROOKLYN APARTMENTS, Inc. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

55 A.2d 500

189 Md. 201

BROOKLYN APARTMENTS, Inc. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 89.

Court of Appeals of Maryland

November 3, 1947

Appeal from Circuit Court of Baltimore City; John T. Tucker, Judge.

Suit by Brooklyn Apartments, Inc., against the Mayor and City Council of Baltimore for a declaratory decree and an injunction against imposition of a tax upon on plaintiff. From decree dismissing bill of complaint, Brooklyn Apartments, Inc. appeal.

Decree reversed and case remanded.

August Levene, of Baltimore, for appellant.

Lester H. Crowther, Depty. City Sol. and Michael J. Hankin, Asst City Sol., both of Baltimore (Simon E. Sobeloff, City Sol of Baltimore, on the brief), for appellees.

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

MARBURY Chief Judge.

This case was advanced at the request of the Mayor and City Council of Baltimore, and had an early hearing, because of the public nature of the questions involved. These questions involve the validity and the construction of Ordinance No. 745 of the Mayor and City Council of Baltimore, enacted under the authority of Chapter 1, Acts of Assembly Extraordinary Session 1945. No point is made of the validity or the construction of the enabling act, nor of the power of the City to pass an ordinance of the general nature and character of the one before us. It is contended, however, that the title of the Ordinance is misleading, and that the body of the Ordinance imposes a tax which is discriminatory and unconstitutional.

The appellant raised these questions by a bill of complaint asking for a declaratory decree and for an injunction against the imposition of the tax upon it. The City and the City Collector demurred. The Chancellor sustained the demurrer, and dismissed the bill.

It is alleged in the bill and must be taken as true for the purposes of the demurrer, that the appellant owns and operates in the City of Baltimore, 11 apartment buildings containing 308 apartments; that the tenants of all these apartments use them only for residential purposes, and that the gas and electricity consumed by the tenants are paid for by the appellant, which makes no specific charge to the tenants for such gas and electricity. This gas and electricity is delivered by the Consolidated Gas, Electric Light and Power Company to the appellant under Schedule G as to electricity and Schedule C as to gas. These two schedules, which are on file with the Public Service Commission, are the general service schedules for use for all purposes. There are special residential schedules known as R for electricity and D for gas. The City claims that the sales of gas and electricity to the appellant are subject to the tax imposed by the Ordinance and demand has been made upon the appellant for payment. The pertinent parts of the Ordinance are as follows: 'An ordinance levying and imposing a tax on all sales for consumption for non-residential uses of artificial or natural gas and electricity delivered in Baltimore City, and on all sales of service for the transmission of messages by non-residential telephones within the limits of Baltimore City billed during the year 1947, with certain exceptions, and providing for the payment and collection of said taxes, imposing and conferring certain duties and authority on the City Collector of Baltimore City, and providing penalties for the violation of the provisions of this ordinance.

'Section 1. Be it ordained by the Mayor and City Council of Baltimore, That during the year 1947, there is hereby levied and imposed on all sales for consumption, except as made under the residential schedules applicable to the City of Baltimore on file with the Public Service Commission of Maryland (designated schedules R. City, D. City and DH) of artificial or natural gas and electricity delivered in Baltimore City through pipes, wires or conduits and on all sales of service for the transmission of messages by non-residential telephones within the limits of Baltimore City, billed in 1947, a tax at the rate of five percentum (5%) upon the gross sales price thereof. Every person, firm, or corporation making any such deliveries or sales within the City of Baltimore shall collect said tax from the purchasers of said products or services and report the same, under oath, on or before the 15th day of the succeeding calendar month to the City Collector, upon forms to be supplied by him, and pay to the City Collector the amount collected from the said purchasers during the preceding calendar month. The tax imposed by this ordinance shall not apply to sales to the United States, the State of Maryland or the City of Baltimore, or any agency of any of them, nor shall it apply to hospitals, churches, charitable institutions and other non-profit organizations.'

There are additional provisions in the Ordinance making it a misdemeanor to refuse to comply or to make a false return or refuse to pay the tax.

Section 28 of the new Baltimore City Charter, effective May 20, 1947, Section 303 of the 1938 Edition, provides that every ordinance enacted by the City shall embrace but one subject which shall be described in its title. This section is a counterpart of Section 29 of Article 3 of the Constitution of Maryland, and it has been held by this Court that the rules governing the determination of the question whether an act has been passed in accordance with that section of the Constitution are applicable to the determination of a similar question with respect to an Ordinance. Mayor & City Council of Baltimore v. First M. E. Church, 134 Md. 593, at page 603, 107 A. 351, at page 354, Smith v. Standard Oil Co., 149 Md. 61, at page 68, 130 A. 181, at page 183. The last mentioned case by appropriate quotation applies to an ordinance the same reasons set out in Painter v. Mattfeldt, 119 Md. 466, 87 A. 413, why an act of Assembly must embrace one subject only and that subject must be described in its title. Among these reasons are to give the people advance notice of the character of the proposed legislation so that they may not be misled and to give all interested an opportunity to appear and be heard, as well as to advise members of the legislative body of the character of the proposed enactment and to give each of them an opportunity to intelligently watch its course through the legislative halls.

One of the ways in which a title may violate the constitutional or the charter provision, as the case may be, is that it may be misleading 'by apparently limiting the enactment to a much narrower scope than the body of the act is made to compass.' Luman v. Hitchens Bros., Co., 90 Md. 14, at page 23, 44 A. 1051, at page 1052, 46 L.R.A. 393. That is the precise objection made to the title of the Ordinance here in question. The title indicates that the tax is imposed on all sales for consumption 'for non-residential uses of artificial or natural gas and electricity.' The body of the Ordinance, it is claimed, imposes the tax on all sales except those made under the residential schedules applicable to the City of Baltimore on file with the Public Service Commission. It is contended that since the consumption of gas and electricity in appellant's apartment houses is for residential uses no one reading the title to the Ordinance would assume that it applied to such sales of gas and electricity, because the title restricts the tax to non-residential uses. When, however, the body of the Ordinance is examined, the exceptions do not include the appellant because it does not buy gas and electricity under the specific schedules excepted. Therefore, it is argued that the body of the act taxes the consumption of gas and electricity for both residential and non-residential uses, while the title purports to restrict it to non-residential uses.

It is suggested on behalf of the appellees that since the present residential schedules of the Consolidated Company, or similar schedules,...