McBriety v. City of Baltimore

• Decision Date: 20 February 1959
• Docket Number: No. 147,147
• Citation: 219 Md. 223,148 A.2d 408
• Parties: Frederick P. McBRIETY et al. v. CITY OF BALTIMORE et al.
• Court: Maryland Court of Appeals

Page 223

219 Md. 223

148 A.2d 408

Frederick P. McBRIETY et al. v. CITY OF BALTIMORE et al.

No. 147.

Court of Appeals of Maryland.

Feb. 20, 1959.

Wilson K. Barnes, Baltimore (Bernard M. Goldstein and Leonard Goodman, Baltimore, on the brief), for appellants.

W. Thomas Gisriel, Asst. City Solicitor, Baltimore (Hugo A. Ricciuti, Acting City Solicitor, Baltimore, on the brief), for appellees.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

This is an appeal by Frederick P. McBriety and other property owners and taxpayers (the owners) from a decree of Circuit Court No. 2 of Baltimore City declaring that Ordinance No. 1077 ¹ (the ordinance) of the Mayor and City Council of Baltimore (the City), dated November 7, 1957--which provides for the registration and licensing of certain rooming houses and multiple family dwellings--was valid, and dismissing the supplemental bill of complaint with costs.

On July 2, 1957, the owners filed an original bill challenging the validity of a similar ordinance (No. 994), dated June 10, 1957. After a hearing on the demurrer, the court (Cullen, J.) overruled it and issued an interlocutory injunction forbidding enforcement of Ordinance No. 994 pending the litigation relative to that ordinance. The City reacted by causing the repeal and reenactment of the ordinance which is the subject of this appeal. When reenactment had been accomplished, the owners, with leave of the court, filed a supplemental bill on November 14, 1957, on behalf of themselves and all other taxpayers. A motion to extend the injunctive relief to the reenacted ordinance was denied by the court (Cullen, J.).

The individual plaintiffs-appellants, eleven in number, are owners, who rent or lease their properties to tenants of more than two dwelling units or two dwelling units and another occupancy. The corporate plaintiff-appellant is a taxpayers' protective association representing a membership of one hundred and seven property owners. The defendants-appellees are the City, the Board of Estimates, several city officials, the Police Commissioner, the Urban Renewal and Housing Commission and the Attorney General of Maryland. All of the defendants, other than the Attorney General, the City and the Police Commissioner, are city officials or agencies.

The comprehensive, and somewhat novel, ordinance is, as its title and recitals indicate, aimed at the licensing and periodic inspection of certain rooming houses and multiple family dwellings and combinations thereof in order to eliminate the causes and unnecessary burdens and hazards of overcrowding and, in the public interest, to assure compliance with existing laws and ordinances for the better protection of the public health, safety, morals and general welfare. There was also a recital of the inadequacy of the 'present' rooming house license fees to provide for the required inspectional service.

In substance, the ordinance provides that '[no] person shall conduct or operate * * * any rooming house, multiple family dwelling, or any combination thereof, without * * * obtain[ing] a license * * *,' and defines certain terms used in the ordinance such as the meaning of 'person,' 'operator,' 'rooming house,' 'multiple family dwelling,' 'or any combination thereof,' 'dwelling unit' and 'rooming unit.' A 'multiple family dwelling' is defined as a house, building or combination of buildings used or intended to be used 'for more than two dwelling units or two dwelling units and any other occupancy,' and includes apartment houses, garden apartments and apartment hotels. Other provisions set forth certain administrative and operational procedures and requirements of the ordinance. The annual license fees were fixed at $3 per rooming unit, $5 per dwelling unit and $3 and $5 respectively, for combinations of rooming and dwelling units, with maximums of $200 in each case.

The supplemental bill alleges in effect that the ordinance is unconstitutional and illegal because:

[i]. It violates Article 23 of the Declaration of Rights in the Constitution of Maryland and the Fourteenth Amendment of the Constitution of the United States by denying 'due process of law' and the 'equal protection of the laws' in that----

(a) The intended licensing of the 'operation' of a multiple family dwelling as defined in the ordinance is neither reasonable nor required for the protection of the health, safety, morals and general welfare of the public and is an unreasonable and arbitrary exercise of the police power;

(b) The ordinance is unnecessary for the protection of the public interests since it adds nothing to the existing and adequate building, police, health and fire regulations;

(c) The intended classification of multiple dwellings--because it excludes one and two unit dwellings--is an abuse of the police power and bears no reasonable relation to the public interests;

(d) The license fees bear no reasonable relation to the expenses of the intended licensing and inspection services;

(e) There are unlawful delegations of legislative power to the building inspection engineer, the commissioner of health and the chief of the fire department;

(f) There is an unlawful delegation of power to the police commissioner, who is an official of the State;

(g) The provisions of the ordinance are vague, indefinite, and ambiguous;

(h) The provisions of the ordinance for the revocation or denial of licenses are invalid;

(i) The ordinance is discriminatory;

(j) There is no provision for reinstatement or reissuance of a license after revocation; and (k) Section 15(b) of the ordinance ² invalidly seeks to impose criminal liability by a conclusive presumption.

[ii]. It violates Section 28 of the City Charter in that the title is defective and deceptive.

[iii]. It may be construed as a revenue measure, and if it is, it violates Article 15 of the Declaration of Rights.

All of the defendants answered and denied the illegality and unconstitutionality of the ordinance.

There was testimony that there was no overcrowding and that the ordinance was discriminatory and unnecessary because it excludes one-and-two unit dwellings and imposes an additional special tax on multiple family dwellings; because properties which are less safe and have more occupants are not licensable under the ordinance; because the existing regulations were adequate and were being enforced; because there were more deaths and injuries from fires and other hazards over a six year period in one-and-two family dwellings than in three-or-more family dwellings; and because the ordinance had destroyed the value of multiple family dwellings as income producing investments.

But there was also testimony that there was no discrimination between the one-and-two unit dwellings and the multiple family dwellings as defined in the ordinance; that there were more violations of the health and fire codes in the buildings having more than two dwelling units than in those with less dwelling units; that the ordinance was necessary from the standpoint of health because it was possible to do a better preventative job with it than without it; that there were unlawful increases in the number of separate family units of which the city officials had no knowledge; that the number of dwelling units in a three-story house was of more importance from a fire safety standpoint than the number of occupants of the building because more gas and electrical units would be in use; and that the ordinance was part and parcel of the 'Baltimore Plan' to control slum conditions and blight areas.

Under § 6 of the Charter of Baltimore City (1949) the Mayor and City Council were given power '[T]o provide for the preservation of the health of all persons' [paragraph 11]; 'to license, tax and regulate all businesses, trades, vocations or professions' [paragraph 16]; 'to have and exercise * * * all the power commonly known as the [p]olice [p]ower to the same extent as the State has or could exercise said power' [paragraph 24]; and 'to pass any ordinance, not inconsistent with the provisions of this Charter or the laws of the State, which it may deem proper in the exercise of any of the powers, either express or implied, enumerated in this Charter, as well as any ordinance as it may deem proper in maintaining the peace, good government, health and welfare of Baltimore City' [paragraph 39].

There is no room for doubt that under this broad and comprehensive grant of charter powers the City has full power and authority not only to license for regulatory purposes but also to tax for revenue purposes the rooming houses, multiple family dwellings and combinations thereof, defined in the ordinance, which is the bone of contention in this case, unless for reasons, which we shall presently consider, the ordinance is unconstitutional or illegal. See Jacobs v. Mayor and City Council of Baltimore, 1937, 172 Md. 350, 191 A. 421 [license to sell coal at retail]; Meushaw v. State, 1908, 109 Md. 84, 71 A. 457 [tax on commission men]. See also Mason v. City of Cumberland, 1901, 92 Md. 451, 48 A. 136 [license fee for vehicles using streets]. Cf. Cambridge Com'rs v. Cambridge Water Co., 1904, 99 Md. 501, 58 A. 442 [license fee for fire-plugs].

There is also a presumption that a municipal ordinance is reasonable and for the public good, and the burden of proving the contrary is on those who attack it. Lewis v. Mayor and City Council of Cumberland, 1947, 189 Md. 58, 54 A.2d 319; G. I. Veterans' Taxi Cab Ass'n v. Yellow Cab Co., 1949, 192 Md. 551, 65 A.2d 173, 8 A.L.R.2d 568. In Eastern Tar Products Corporation v. State Tax Com'n, 1939, 176 Md. 290, 297, 4 A.2d 462, 465, we stated that 'reasonable doubts as to the validity of an ordinance should be resolved in its favor.' And in Maryland Advertising Co. v. Mayor and City Council of Baltimore, 1952, 199 Md. 214, 222, 86 A.2d 169, 173, we held that 'the mere fact that an exercise of the police power may cause expense or loss [to an...