Heubeck v. City of Baltimore

• Decision Date: 01 October 1954
• Docket Number: No. 10,10
• Citation: 107 A.2d 99,205 Md. 203
• Parties: HEUBECK v. CITY OF BALTIMORE. ,
• Court: Maryland Court of Appeals

Page 203

205 Md. 203

107 A.2d 99

HEUBECK v. CITY OF BALTIMORE.

No. 10, Oct. Term, 1954.

Court of Appeals of Maryland.

July 21, 1954.

F. Murray Benson and Henry M. Decker, Jr., Baltimore (Thomas G. McCausland, Baltimore, on the brief), for appellant.

Hugo A. Ricciuti, 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., DELAPLAINE, and COLLINS, JJ., and WILLIAM R. HORNEY and JOS. R. BYRNES, Special Judges.

WILLIAM R. HORNEY, Special Judge.

In 1947 the General Assembly of Maryland, anticipating the end of Federal Housing and Rent Controls before the emergency relating thereto in certain localities in the State had ceased to exist, enacted a law enabling the Mayor and City Council of Baltimore City and the County Commissioners of certain counties and the incorporated towns therein to regulate and control rents and housing within their respective limits during a period of two years ending June 1, 1949. Laws 1947, Chapter 507; Code 1951, Art. 44C. In 1949 and also in 1951 the Act was amended so as to extend the expiration dates to June 1, 1951, and June 1, 1953, respectively. Laws 1949, Chapter 688; Laws 1951, Chapter 572. Again in 1953 the General Assembly by Chapter 774 amended the Act and intended to extend the expiration date to June 1, 1955, but because of certain irregularities in its enactment the last amendment was ineffective. No effort to revive the enabling act was thereafter made. The chancellor below held, and it is conceded here, that Chapter 774, supra, was invalid. Thus the provisions of Article 44C, pursuant to its terms as amended, expired on June 1, 1953.

As anticipated the Federal Housing and Rent Act of 1947 as amended, 50 U.S.C.A. Appendix, § 1881 et seq., expired on July 31, 1953. On May 21, 1953, the Mayor and City Council of Baltimore, pursuant to the provisions of Article 44C, supra, and the police powers of the City, enacted a rent control ordinance, it being Ordinance No. 716. Subsequently George F. Heubeck, the appellant, filed a bill in Circuit Court No. 2 of Baltimore City seeking to have said ordinance declared invalid and to enjoin the Mayor and City Council of Baltimore, appellee, from enforcing it. From a declaratory decree dismissing the bill, the appellant appealed. The appeal poses several interesting questions.

The City of Baltimore has the power to enact rent control legislation, even in the absence of an enabling act, provided such legislation is not in conflict with the Constitution of the State or any Public General Law thereof. The mere fact that the ordinance in its recitals relied partially upon the enabling act as amended, would not prevent its passage under said police power. Section 6(24) of the Baltimore City Charter provides that the Mayor and City Council of Baltimore shall have power by ordinance or such other method as may be provided in its charter 'to exercise 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 * * *'. Inasmuch as the regulation of leases of dwellings is within the police power of the State, Marcus Brown Holding Co. v. Feldman, 256 U.S. 170, 41 S.Ct. 465, 65 L.Ed. 877, it is clear that the City has such power to the same extent. R. B. Const. Co. v. Jackson, 152 Md. 671, 137 A. 278. And as was said in Rossberg v. State, 111 Md. 394, 74 A. 581, 582, with regard to the police power of the City, 'broader or more comprehensive police powers could not be conferred under any general grant of police power * * *.'

The enactment of the enabling act, Article 44C, supra, did not in any manner impair the police powers of the City. Although Section 5 of Article 44C provided that upon the expiration of the provisions thereof any ordinance adopted thereunder should cease to have any effect and thereupon become null and void, there is no doubt that the Baltimore City ordinance did not for that reason cease to be effective from and after July 31, 1953, inasmuch as said ordinance had also been enacted pursuant to the police powers of the City. Moreover, the enabling act did not impliedly repeal such police powers because the State Legislature pre-empted the rent control filed. Section 7 of Article 44C specifically provides: 'Nothing in this Article shall be construed to take away any power which any city or county now has under the State Constitution or any public local or public general law, but the powers granted by this Article shall be in addition to the powers heretofore granted.' Hence, it is obvious that whatever effect the enactment and expiration of the rent control enabling act may have had upon tne police powers of other political subdivisions of this State, lacking the broad police power of Baltimore City, the police power of that City was not impaired.

The only limitations upon the police power of the City are found among the provisions of Article XIA of the Maryland Constitution, often referred to as the Home Rule Amendment, and the Baltimore City Charter, the granting of which was made possible by said Home Rule Amendment. Section 3 of Article XIA provides in part that from and after the adoption of a charter by the City of Baltimore, the Mayor and City Council of Baltimore, 'subject to the Constitution and Public General Laws of this State,' (italics supplied) shall have full power to enact local laws of the City, but 'in case of any conflict between said local law and any Public General Law now or hereafter enacted the Public General Law shall control.' Likewise, Section 6 of the Baltimore City Charter, under which all the powers of Baltimore City are derived, including the police power, Section 6(24), supra, provides, among other things, that the City shall have all of the powers specifically enumerated in said Section 6, but 'subject to the provisions of said Constitution and Public General Laws.' These limitations upon the power of the City of enact local laws or ordinances, including the exercise of its police power, appear to be clear and unmistakable. If a local law or ordinance conflicts in any manner with the Constitution or a Public General Law, then the local law or ordinance is invalid. The test is concisely stated in Rossberg v. State, supra, decided in 1909, several years before the Home Rule Amendment and the Baltimore City Charter adopted pursuant thereto, in which it was said that 'ordinances which assume directly or indirectly to permit acts or occupations which the state statutes prohibit, or to prohibit acts permitted by statute or constitution, are under the familiar rule for validity of ordinances uniformly declared to be null and void.' In the Rossberg case, an ordinance providing for penalties different from and in addition to the penalties imposed by Article 27 of the Code for certain violations of the narcotics laws was sustained by this Court, not because the ordinance enacted under the police power of the City prevailed over a conflicting Public General Law, but because said ordinance was not in conflict with the general law. A conflict only exists, as the opinion points out, when an ordinance prohibits something permitted by the Legislature, or permits something prohibited by the Legislature. In Levering v. Board of Park Commissioners, 134 Md. 48, 106 A. 176, 4 A.L.R. 374, the ordinance permitted the playing of baseball and other games on Sunday by professionals, whereas the Public General Law prohibited work and bodily labor on Sunday. This Court, applying the test laid own in the Rossberg case, found that a conflict existed and held that ordinance invalid. While the ordinance in the Levering case had been adopted before the effective date of the Home Rule Amendment, nevertheless the rule of interpretation there applied is just as valid now as it was then. The only other case even remotely in point is that of Herman v. Mayor and City Council of Baltimore, 189 Md. 191, 55 A.2d 491, 173 A.L.R. 1310, which concerned the validity of an ordinance imposing a tax on certain alcoholic beverages in the hands of retailers. This Court sustained the ordinance, not for the reason that the ordinance took precedence over a conflicting Public General Law, as the learned chancellor below appears to have found, but because the Legislature had...