Givner v. Commissioner of Health

• Citation: 207 Md. 184,113 A.2d 899
• Decision Date: 12 May 1955
• Docket Number: No. 134,134
• Court: Court of Appeals of Maryland
• Parties: Allan GIVNER v. COMMISSIONER OF HEALTH and M. & C. C. of Baltimore.

Page 184

207 Md. 184

113 A.2d 899

Allan GIVNER v. COMMISSIONER OF HEALTH and M. & C. C. of Baltimore.

No. 134.

Court of Appeals of Maryland.

May 12, 1955.

Eugene Hettleman, Baltimore, for appellant.

W. Thomas Gisriel, Asst. City Sol., Baltimore (Thomas N. Biddison, City Sol and Edwin Harlan, Deputy City Sol., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a decree of the Circuit Court of Baltimore City, dismissing a bill for declaratory judgment praying that a certain regulation promulgated by the Commissioner of Health, in regard to bathing facilities in dwelling units, be declared invalid.

By ordinance 384 adopted in 1941 and now codified as Sections 112 to 119, inclusive, of Article 12 of the Baltimore City Code of 1950, the City undertook to deal with the 'Hygiene of Housing'. Sec. 112 provided that 'Every dwelling and every part thereof shall be kept clean and free from any accumulation of dirt, filth, rubbish, garbage or similar matter, and shall be kept free from vermin or rodent infestation. * * *' The Commissioner of Health was authorized to enforce these requirements by notice to abate 'such nuisance,' or in extreme cases to abate it forthwith. Failure to comply with a proper notice was made subject to criminal penalties. Obstructions of any sanitary sewer, if caused by wilful or malicious deposit of material, were likewise made subject to criminal penalties. Sec. 113 provided that 'Every dwelling and every part thereof shall be maintained in good repair by the owner or agent, and fit for human habitation.' Sec. 114 provided that the Commissioner of Health might order conditions abated, or otherwise improved, which he found 'dangerous or detrimental to life or health'. Sec. 115 set out the procedure he should follow. Sec. 116 authorized the Commissioner to order a dwelling to be vacated, if he found it to be 'unfit for human habitation, or dangerous to life or health by reason of want of repair, or defects in the drainage, plumbing, lighting, ventilation or the construction of the same, * * * or for any other causes affecting the public health'. Sec. 117 provided that notice given to any person in actual possession should be as effective as if given to the owner. Sec. 118 provided that 'The Commissioner of Health is hereby authorized and empowered to make and adopt such rules and regulations as he may deem proper and necessary for the enforcement of this ordinance for the better protection of the health of the city.' Sec. 119 provided that 'Any person violating any of the provisions of Sections 112-119, or any lawful order or regulation made and adopted by the Commissioner of Health in pursuance thereof, shall be guilty of a misdemeanor and shall be subject to a fine not exceeding $50.00 and each day's violation shall constitute a separate offense.'

On March 11, 1942, the Commissioner of Health, pursuant to the power conferred upon him by Sec. 118, promulgated 17 rules or regulations. One of these made outside 'hoppers' unlawful and required that toilet facilities be accessible from within the dwelling. On March 11, 1954, Regulation 9, here under attack, was adopted. It read: 'Bathing facilities. Every dwelling unit shall contain within a room which affords privacy, a bathtub or shower in good working condition which shall be properly connected to both hot and cold water lines and to the public sanitary sewer or to an approved sanitary sewage disposal system. This regulation shall not apply to any two-story dwelling which contains not more than two dwelling units, provided there is at least one such facility available for the occupants of such dwelling. This regulation shall take effect January 1, 1956.' Dwelling unit was defined in Regulation 1 as 'a room or group of rooms forming a single habitable unit with facilities which are used or intended to be used exclusively by the occupants of such unit for living, sleeping, eating and cooking.'

The complainant filed suit as a taxpayer and resident of Baltimore City, and as a property owner engaged in the business of buying and selling rental properties. It was alleged that he is the owner of a three-story dwelling house, known as 1607 John Street, which contains two dwelling units on each of the second and third floors. On each floor there is one bathroom, for the use of the tenants of that floor. Each dwelling unit is occupied by two persons. This arrangement would be unlawful and in violation of Regulation 9, if valid, after its effective date. No question is raised as to the right of the complainant to challenge the regulation in a proceeding for declaratory judgment.

The appellant concedes that the City possessed the power to preserve health and 'prevent and remove nuisances' under the Charter and P.L.L. of Baltimore City (1949 Ed.), Sec. 6(11). He also concedes that it possesses 'within the limits of Baltimore City 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; * * *.' Sec. 6(24). He does not deny that the City may validly delegate to an appropriate City official the power to enforce its ordinances and abate nuisances. Pocomoke City v. Standard Oil Co., 162 Md. 368, 159 A. 902; Petrushansky v. State, 182 Md. 164, 32 A.2d 696. The Commissioner of Health is an appropriate official, for he is directed by Sec. 81 of the Charter to 'cause all ordinances for the preservation of the health of the inhabitants of Baltimore City to be faithfully executed and strictly observed.' But the appellant contends that by a proper construction of the ordinance the power to adopt regulations, conferred upon the Commissioner of Health, is limited to regulations in aid of his ministerial and administrative duty of enforcement. He further contends that if a wider power is conferred, the ordinance is invalid as an unlawful delegation of the police power to an administrative official.

On the first point, we note that a regulation requiring the installation of inside toilets was adopted almost contemporaneously with the passage of the ordinance. As pointed out by the Chancellor, there have been many criminal prosecutions, since the adoption of this regulation, in which the Commissioner's right to adopt it has been challenged and sustained by the trial courts. Likewise, in 1951, a regulation was adopted prohibiting the use of lead paint for interior painting, on the ground that it constituted a danger to teething infants. In both instances the regulations laid down general rules without reference to particular situations that might call for abatement, and might be described as legislative in character. It is true that the primary purpose of the ordinance is to provide for abatement of conditions that in fact amount to a nuisance, but we think the power of the Commissioner is not so narrowly limited. He is authorized to make regulations 'for the enforcement of this ordinance for the better protection of the health of the city', and criminal penalties are prescribed not only for violations of the ordinance, but for violation of 'any lawful order or regulation made and adopted by the Commissioner of Health in pursuance thereof.' To argue that the...