Herman v. Mayor & City Council Of Baltimore, No. 44.

CourtCourt of Appeals of Maryland
Writing for the CourtDELAPLAINE, Judge.
Citation55 A.2d 491
PartiesHERMAN et al. v. MAYOR & CITY COUNCIL OF BALTIMORE et al.
Docket NumberNo. 44.
Decision Date03 November 1947

55 A.2d 491

HERMAN et al.
v.
MAYOR & CITY COUNCIL OF BALTIMORE et al.

No. 44.

Court of Appeals of Maryland.

Nov. 3, 1947.


55 A.2d 492

COPYRIGHT MATERIAL OMITTED.

Appeals from Circuit Court No. 2 of Baltimore City; Herman M. Moser, Judge.

Suit in equity by Herbert J. Herman and another, individually and as copartners trading as ‘Ace Liquors,’ against the Mayor and City Council of Baltimore and others for a decree declaring void a part of an ordinance imposing a tax on certain alcoholic beverages in retailers' hands on January 1, 1947, and an injunction against enforcement of the ordinance, in which William Diskin, trading as ‘Ford's Liquors,’ intervened as a party complainant. From a decree sustaining demurrers to the bill and dismissing it, complainants appeal.

Affirmed.

55 A.2d 493

Joseph O. Kaiser and Avrum K. Rifman, both of Baltimore (Kenney & Kaiser, of Baltimore, on the brief), for Herman & Lessner.

Wyatt & Jones, of Baltimore, for Diskin.

Allen A. Davis, Asst. City Sol. and Lester H. Crowther, Deputy 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.

DELAPLAINE, Judge.

Herbert J. Herman and Charles H. Lessner, of Baltimore, trading as Ace Liquors, brought this suit against the Mayor and City Council of Baltimore, William F. Broening, City Collector, and James J. Lacy, State Comptroller, to obtain (1) a declaratory decree to declare void that part of an ordinance of the City of Baltimore which imposes a tax of 50 cents per gallon on certain alcoholic beverages in the hands of retail dealers on January 1, 1947, and (2) an injunction to restrain the enforcement of the ordinance.

The bill of complaint alleges that complainants conduct a store on the southeast corner of Baltimore and Eutaw Streets for the retail sale of alcoholic beverages, and that they paid a tax of $351.10 to the City of Baltimore and State of Maryland upon their stock in business, including alcoholic beverages, for the year 1946, and were liable for a similar tax of $342.72 for the year 1947. On December 23, 1946, the Mayor and City Council of Baltimore, pursuant to authority granted by the Legislature in 1945, enacted an ordinance imposing a tax of 50 cents per gallon on all distilled spirits and other alcoholic beverages, except beer and wine, sold or delivered by a manufacturer or wholesaler to any retail dealer in Baltimore City during the year 1947, and a like tax of 50 cents per gallon on such beverages in the hands of retailers on January 1, 1947. On December 31, 1946, City Collector Broening issued regulations requiring retail dealers subject to the tax to file an inventory of alcoholic beverages in their hands on January 1, 1947. Complainants had on hand alcoholic beverages ranging in value from $12.85 to $35.40 per gallon, upon which a tax of $1,087.01 was claimed to be due under the ordinance. They were notified that, if they failed to pay the tax by January 15, they would be prohibited from dealing in alcoholic beverages. They alleged that the ordinance is invalid and refused to pay the tax, but they deposited with the clerk $1,087.01, subject to the order of the Court. William Diskin, trading as Ford's Liquors, intervened as a party complainant. Defendants demurred to the bill, and from a decree sustaining the demurrers and dismissing the bill, complainants appealed.

The Maryland Alcoholic Beverages Law, regulating the sale of alcoholic beverages in this State, declared: ‘No city or town shall be permitted to impose any additional license fees or taxes other than the usual property tax, upon alcoholic beverages, or upon the exercise of the privileges conferred by the licenses issued under the provisions of this Article.’ Laws of 1937, chs. 476, 493; Laws of 1939, ch. 642; Code, art, 2B, sec. 8. On October 29, 1945, when a grave situation existed in Baltimore on account of the urgent need for additional funds to meet the municipal budget requirements, and the authorization of the State was necessary to meet the needs, Governor O'Conor convened the Legislature in special session on November 5. He recommended in a letter to the Legislature that the City be granted ‘general taxing powers' to meet the emergency; and an Act was passed authorizing the Mayor and City Council to exercise ‘the power to tax to the same extent as the State has or could exercise said power within the limits of said City as part of its general taxing power.’ The Act expressly authorized the City to provide by ordinance for the imposition, assessment, levy and collection of any tax or taxes so authorized, the power so granted expiring on January 1, 1948. The Act was declared

55 A.2d 494

to be an emergency measure and took effect from the date of its passage. It was approved by the Governor on November 7. Laws of 1945, Sp.Sess., ch. 1. The City thereupon adopted the ordinance which is now before us.

Unquestionably the City had no power to impose excises on alcoholic beverages unless there was a repeal of Section 8 of the Alcoholic Beverages Law. Appellants questioned whether the members of the Legislature actually intended to repeal Section 8 in any respect. While it is true that the Act of 1945 does not refer to Section 8 specifically, nevertheless it does declare that all laws or parts of laws inconsistent with the provisions of the Act are repealed to the extent of such inconsistency. Section 8 declared that the provisions of the Act with respect to Class F licenses ‘shall not be deemed as repealed by any local Act hereafter passed unless expressly referred to and expressly repealed in terms.’ But Class F licenses were issued only for the sale of alcoholic beverages on the railroads, whereas appellants have been selling under a Class A (Off Sale) license. In our opinion the Act of 1945 repealed Section 8 in so far as it had prohibited the City from taxing the holders of Class A licenses in Baltimore City. In 1947 the Legislature revised the Alcoholic Beverages Law by repealing and re-enacting Article 2B, Laws of 1947, ch. 501. We are not called upon in this case to decide what effect, if any, the Act of 1947 enacting Section 23 in place of Section 8 had upon the City's power to tax beverages sold or delivered by manufacturers and wholesalers in 1947. But certainly it did not wipe out the tax on beverages in the hands of retailers on January 1, 1947, since the Act did not...

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27 practice notes
  • City of Fairmont v. Pitrolo Pontiac-Cadillac Co., PONTIAC-CADILLAC
    • United States
    • Supreme Court of West Virginia
    • July 18, 1983
    ...(1921); Flint v. Stone Tracy Co., 220 U.S. 107, 152, 31 S.Ct. 342 , 55 L.Ed. 389 (1911); Herman v. M. & C.C. of Baltimore, 189 Md. at 197, 55 A.2d 491; * * * * * * "Finally, the property tax and the excise tax may be differentiated by the methods used to impose them and to fix their amount.......
  • Montgomery County v. Waters Landing Ltd. Partnership, No. 627
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1993
    ...Flint v. Stone Tracy Co., 220 U.S. 107, 152, 31 S.Ct. 342, 349, 55 L.Ed. 389 (1911); Herman v. M. & C.C. of Baltimore, 189 Md. 191, 197, 55 A.2d 491 (1947)). "[T]he modern conception of an excise tax includes any tax not levied directly on the ownership of property as such." Weaver, 281 Md.......
  • Mayor and Council of Forest Heights v. Frank, No. 47
    • United States
    • Court of Appeals of Maryland
    • October 7, 1981
    ...body of an Art. XI-A subdivision as well as an enactment by the General Assembly. Herman v. M. & C. C. Of Baltimore, 189 Md. 191, 195-196, 55 A.2d 491 (1947) (holding that an ordinance enacted by the Mayor and City Council of Baltimore, which is an Art. XI-A home rule jurisdiction and not a......
  • Clear Channel Outdoor, Inc. v. Dir., Dep't of Fin. of Balt. City, No. 9, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • March 15, 2021
    ...that fortifies the market power of a dominant incumbent operator.21 See Herman v. Mayor and City Council of Baltimore , 189 Md. 191, 197, 55 A.2d 491 (1947) ("The State ... may impose different taxes upon different trades and professions and may vary the rates of excise upon various product......
  • Request a trial to view additional results
27 cases
  • City of Fairmont v. Pitrolo Pontiac-Cadillac Co., PONTIAC-CADILLAC
    • United States
    • Supreme Court of West Virginia
    • July 18, 1983
    ...(1921); Flint v. Stone Tracy Co., 220 U.S. 107, 152, 31 S.Ct. 342 , 55 L.Ed. 389 (1911); Herman v. M. & C.C. of Baltimore, 189 Md. at 197, 55 A.2d 491; * * * * * * "Finally, the property tax and the excise tax may be differentiated by the methods used to impose them and to fix their amount.......
  • Montgomery County v. Waters Landing Ltd. Partnership, No. 627
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1993
    ...Flint v. Stone Tracy Co., 220 U.S. 107, 152, 31 S.Ct. 342, 349, 55 L.Ed. 389 (1911); Herman v. M. & C.C. of Baltimore, 189 Md. 191, 197, 55 A.2d 491 (1947)). "[T]he modern conception of an excise tax includes any tax not levied directly on the ownership of property as such." Weaver, 281 Md.......
  • Mayor and Council of Forest Heights v. Frank, No. 47
    • United States
    • Court of Appeals of Maryland
    • October 7, 1981
    ...body of an Art. XI-A subdivision as well as an enactment by the General Assembly. Herman v. M. & C. C. Of Baltimore, 189 Md. 191, 195-196, 55 A.2d 491 (1947) (holding that an ordinance enacted by the Mayor and City Council of Baltimore, which is an Art. XI-A home rule jurisdiction and not a......
  • Clear Channel Outdoor, Inc. v. Dir., Dep't of Fin. of Balt. City, No. 9, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • March 15, 2021
    ...that fortifies the market power of a dominant incumbent operator.21 See Herman v. Mayor and City Council of Baltimore , 189 Md. 191, 197, 55 A.2d 491 (1947) ("The State ... may impose different taxes upon different trades and professions and may vary the rates of excise upon various product......
  • Request a trial to view additional results

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