Dennis v. Mayor and City Council of Rockville

• Decision Date: 08 October 1979
• Docket Number: No. 4,4
• Citation: 286 Md. 184,406 A.2d 284
• Parties: John J. DENNIS II et al. v. The MAYOR AND CITY COUNCIL OF ROCKVILLE.
• Court: Maryland Court of Appeals

Page 184

286 Md. 184

406 A.2d 284

John J. DENNIS II et al. v. The MAYOR AND CITY COUNCIL OF ROCKVILLE.

No. 4.

Court of Appeals of Maryland.

Oct. 8, 1979.

Patrick Casey Duncan, Kensington (B. George Ballman, James M. Griffin and Staley, Prescott & Ballman, P. A., Kensington, on the brief), for appellants.

Sondra Harans Block, Asst. City Atty. and Roger W. Titus, City Atty., Rockville, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

ELDRIDGE, Judge.

In 1976, the City Council of Rockville enacted an ordinance, presently codified as § 12-1.18A of the Laws of Rockville, designed to provide prospective purchasers of real property with information concerning zoning, planned land uses, roads, proposed parks, and other public facilities affecting the property. Section 12-1.18A imposed a duty upon the property owner's agent, or upon the property owner should an agent not be employed, to provide a prospective purchaser of realty with the opportunity to examine the Master Plan prior to entering into a contract of sale. This could be done by either (1) producing and making available for examination a copy of the Plan or (2) escorting the purchaser to a place where the Plan was available for inspection and obtaining the Plan for the purchaser's inspection. Section 12-1.18A further provided that, in the event its provisions were violated, the purchaser would have the right to terminate the contract of sale at any time prior to the conveyance of the property. The issue presented on this appeal is whether the City of Rockville had the authority to enact that part of § 12-1.18A providing that the purchaser shall have the right to terminate the contract upon a failure of the agent or the owner to comply with the duty imposed upon them. For the reasons set forth below, we hold that the City of Rockville had such authority.

The plaintiffs, John J. Dennis II and Robert S. Montgomery, real estate agents engaged in selling real estate in Rockville, and Waddell S. Taylor, a resident of Rockville, filed a bill in equity in the Circuit Court for Montgomery County. The plaintiffs, raising several arguments challenging the authority of the City of Rockville to enact any part of the ordinance, sought a declaratory judgment that § 12-1.18A was invalid as a whole and an injunction against the enforcement of the ordinance. In a decree filed October 4, 1978, the trial court (Frosh, J.) declared that § 12-1.18A was valid and constitutional in all respects. After the plaintiffs filed an appeal to the Court of Special Appeals, we issued a writ of certiorari prior to a decision by that court.

In this Court, the plaintiffs concede that the City has the authority to regulate the sale of real property by enacting that part of § 12-1.18A imposing a duty upon the seller or his agent to provide the purchaser with the opportunity to examine the Master Plan. The only issue raised by the plaintiffs on this appeal, and thus the only issue decided by us, is whether the City, in order to Enforce the ordinance, has the authority to authorize the purchaser to terminate the contract of sale in the event of a violation.

The plaintiffs contend that the provision permitting the purchaser to terminate the contract creates a "forfeiture" of their contractual rights which may not be done by a municipality without express authority. In support of this contention, the plaintiffs cite the rule set forth in I J. Dillon, Municipal Corporations § 237 (5th ed. 1911), that

"a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in Express words; second, those Necessarily or fairly implied in or Incident to the powers expressly granted; third, those Essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable." ¹

Moreover, the plaintiffs assert that this principle is especially applicable to forfeitures, relying primarily upon Rossberg v. State, 111 Md. 394, 74 A. 581 (1909). The plaintiffs point out that neither the Rockville City Charter nor Maryland Code (1957, 1973 Repl.Vol., 1978 Cum.Supp.), Art. 23A, contains express authorization to enact a forfeiture. They further point out that the charter and code provisions directly relating to the enforcement of municipal ordinances provide only for the imposition of fines and imprisonment. ² Therefore, they argue that because the power to create a forfeiture was not expressly or by necessary implication granted to the City, under Rossberg v. State, supra, the City lacked the authority to declare contracts terminable at the purchaser's option.

In Rossberg, a Baltimore City ordinance prohibited the sale, furnishing or possession of cocaine. The ordinance provided a penalty of a fine and imprisonment, and in the event the offender was a licensed pharmacist or physician, the forfeiture of his license. At the time of the enactment of the Baltimore City ordinance, there was also in effect a state law prohibiting the sale and furnishing (but not the simple possession) of cocaine and prescribing a penalty of a fine and imprisonment (but not a forfeiture of the license of a convicted pharmacist or physician). Dr. Rossberg, a licensed pharmacist, was convicted for the sale of cocaine in violation of the Baltimore City ordinance. This Court first upheld the validity of those parts of the local ordinance that provided for a fine and imprisonment of a different amount than the state statute. The Court then addressed the license-forfeiture issue. The trial court had held that the forfeiture provision was so oppressive that it was an an unreasonable exercise of the police power, 111 Md. at 419, 74 A. at 585. This Court, however, after noting that forfeiture of the license might be the only fully adequate penalty, nevertheless held (Ibid.):

"Our examination of the matter leads us to the conclusion that under its charter the City of Baltimore has no power to declare any forfeiture.

"In a note to Cooley's Constitutional Limitations 5th Ed., page 249, the author says: 'Municipal by-laws may impose penalties on parties guilty of a violation thereof, but they cannot impose forfeiture of Property or rights without express legislative authority,' citing State v. Ferguson, 33 N.H. 424, and Phillips v. Allen, 41 Pa. 481, 82 A.M.Dec. 486, JUDGE DILLON states the law in the same way, in his work on Municipal Corporations, Vol. 1, sec. 336; and McQuillan on Ordinances, sec. 170, says, 'the general rule is that an ordinance cannot create a forfeiture in the absence of express power so to do,' citing Kirk v. Nowell, 1 Term Rep. 118; and he adds, in the same section, 'The American Courts have generally followed the early English rule, and have held that, in the absence of express power given, an ordinance cannot be enforced by forfeiture.' "

See also Mayor and Aldermen of Mobile v. Yuille, 3 Ala. 137, 144 (1841); White v. Tallman, 26 N.J.Law 67 (2 Dutcher) (1856); Coonley v. City of Albany, 132 N.Y. 145, 153, 30 N.E. 382 (1892); Hart v. Mayor, etc., of Albany, 9 Wend. 571, 588 (Ct. for Correction of Errors, N.Y., opinion of Sutherland, J.) (1832); Phillips v. Allen, 41 Pa. 481 (1862); Heise v. Town Council, 6 Rich. 404 (S.C.1853); II J. Dillon, Supra, §§ 611, 618; 5 E. McQuillin, Municipal Corporations § 17.08 (3d ed. 1969).

The above-quoted language from Rossberg, on which the plaintiffs here place much reliance, was set forth in a totally different context. Rossberg dealt with a license to generally engage in one's profession. It was treated by the Court as a property right, unlike many other types of licenses which are not deemed to create property or contract rights. ³ The license involved in Rossberg was not granted by the City under a municipal ordinance but was issued by a state agency pursuant to a state statute, Code (1904), Art. 43, §§ 141-154. It was under these circumstances that the Court in Rossberg applied the principle that a municipal corporation may not enact a forfeiture absent express authority.

We need not in the instant case explore the extent to which this principle set forth in Rossberg might be equally applicable to "forfeitures" under dissimilar circumstances. ⁴ In our view, the challenged City of Rockville ordinance does not at all involve a "forfeiture" as that term was used in the Rossberg case. In the case at bar, the City is not attempting to infringe upon, alter or destroy any pre-existing property or contractual right. Section 12-1.18A did not authorize the City of Rockville to acquire the contract right of either party or the seller's profits from the sale or the parcel of real property involved. The ordinance did not revoke the real estate agent's license. If that were the case, the plaintiffs might have a stronger argument that a forfeiture had been created. Instead, § 12-1.18A simply attempted to require prospectively a mode of conduct and provide a sanction for the breach thereof by returning the parties to the status quo.

An ordinance, operating prospectively, providing for the rescission of a contract entered into after the enactment of the ordinance, is not a forfeiture. It has been frequently recognized by this Court that the laws subsisting at the time of the making of a contract enter into and form a part thereof as if expressly referred to or incorporated in its terms, and the principle embraces alike those provisions which affect the validity, construction, discharge and enforcement of the contract. Beca v. City of Baltimore, 279 Md. 177, 182, 367 A.2d 478 (1977); Federal Ins. Co. v. Allstate Ins. Co., 275 Md. 460, 473-474, 341 A.2d 399 (1975); Downing Dev. Corp. v. Brazelton, 253 Md. 390, 252 A.2d 849 (1969); Holmes v. Sharretts, 228 Md. 358, 180 A.2d 302, 98 A.L.R.2d 363 (1962); Whitworth, Adm'r v. Department, 222 Md. 98, 158 A.2d 765 (1960).

For example, in Denice v. Spotswood I. Quinby, Inc., 248 Md. 428, 237...