Rossberg v. State
| Decision Date | 12 November 1909 |
| Parties | ROSSBERG v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; Henry D. Harlan, Henry Stockbridge, and Alfred S. Niles, Judges.
William Rossberg was convicted of violating an ordinance, and he appeals. Affirmed.
Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE and THOMAS, JJ.
James J. McNamara and Joseph C. France, for appellant.
A. S J. Owens, State’s Atty., for Baltimore City.
Isaac Lobe Straus, Atty. Gen., for the State.
The appellant, William Rossberg, was indicted by the grand jury for the city of Baltimore for the violation of an ordinance of the mayor and city council of Baltimore, known as the "Cocaine Ordinance," approved June 19, 1908, which prohibits the sale, furnishing, giving away, or having in possession cocaine and kindred substances, or compounds thereof, except upon certain conditions provided in said ordinance, and which provides certain penalties for its violation. At the time of the passage of this ordinance, there was in force a state law, being chapter 607, p. 1051, of Laws 1904, chapter 523, p. 1003, of Laws 1906, which forbade the selling, furnishing, or giving away of cocaine and of the same substances and compounds mentioned in said ordinance, except upon the same conditions substantially as provided in said ordinance, and which provided certain penalties for violation of said statute. The penalty provided by the ordinance is a fine of not less than $100, nor more than $500, with imprisonment in jail for not less than 6, nor more than 12 months, and if a licensed pharmacist, physician, dentist, or veterinary surgeon, the forfeiture of his license. The penalty provided by the state law is a fine of from $25 to $50 for the first offense; $ 50 to $ 100 for the second offense; and $100 to $200, with imprisonment in jail for not more than six months, for the third and subsequent offenses. The state law does not, as the ordinance does, make the mere possession of the drugs mentioned a misdemeanor, nor does it provide at all, as the ordinance does, for the revocation of the offender’s license. The latter, therefore, is somewhat broader in scope, and its penalties are heavier. The indictment contained nine counts, covering, selling, furnishing, and giving away cocaine, and having the same in his possession, the traverser being a licensed pharmacist. He demurred to the indictment and to each count, contending that the ordinance was invalid because of the existence of the state law dealing with and punishing the same offense dealt with by the ordinance. The case was heard by Judges Harlan, Stockbridge, and Niles, who overruled the demurrer, whereupon the traverser submitted under plea of non cul, and a verdict of guilty was rendered on the eighth count charging a sale of cocaine to one Howard Nelson, and a fine of $100 and imprisonment in jail for one day was imposed, from which judgment the appeal was taken. While sustaining the demurrer, the lower court, however, held that part of the penalty which required the revocation of the license, to be unusual and oppressive, and therefore inoperative and void, but that its elimination as part of the penalty did not operate to destroy the general plan and intent of the ordinance, and left the rest of the ordinance in full operation and effect.
The first inquiry is as to the power of the municipal government of the city of Baltimore to pass the ordinance in question, or, in other words, whether such power has been delegated to it by the Legislature of the state. The powers thus vested in the city are broad and sweeping, and are expressed in terms which indicate a liberal view of the need of broad powers for effective local government of a great city. They are contained in 31 sections of the city charter as it appears in the Baltimore City Code of 1906 and cover 27 pages of that volume. Section 18, entitled "Police Power," is as follows:
Section 31, entitled "Welfare and other Powers," is as follows: "The foregoing or other enumeration of powers in this article shall not be held to limit the power of the mayor and city council of Baltimore, in addition thereto, to pass all ordinances, not inconsistent with the provisions of this article or the laws of the state, as may be proper in executing any of the powers either express or implied, enumerated in this section and elsewhere in this article, as well as such ordinances as it may deem expedient in maintaining the peace, good government, health and welfare of the city of Baltimore; and it may provide for the enforcement of all such ordinances by such penalties and imprisonments as may be prescribed by ordinance; but no fine shall exceed five hundred dollars, nor imprisonment exceed twelve months for any offense."
We have not been referred to, nor have we discovered, any other provisions in the charter of the city which relate to the questions involved in this case. Broader or more comprehensive police powers could not be conferred under any general grant of police power, for the purposes mentioned in section 18, than those granted in that section, and when we consider the "Welfare clause" of the charter (section 31), greater emphasis could not be laid upon the implied powers of the city for the maintenance of the peace, good government, health, and welfare of the city than is there laid. That section expressly declares that no enumeration of powers in that article shall be deemed to limit the power of the city, in addition thereto, to pass all ordinances, not inconsistent with that article, or the laws of the state, as may be proper in executing any of the enumerated powers, express or implied, contained anywhere in said article. The able argument of the appellants practically ignores the existence of any implied powers, and apparently proceeds upon the theory that where there is a state law dealing generally with a specific evil, then, unless specific power is conferred upon the city to deal by ordinance with that specific evil, an ordinance attempting to deal with that evil is unauthorized and void. The primary question in the case is therefore thus clearly and sharply defined.
No adjudications to this effect were produced, and we believe none can be, nor does the suggestion find support in any text-writer quoted or referred to in argument. Judge Cooley speaking of the powers of municipal corporations, says: Cooley’s Const. Lim. (5th Ed.) p. 233. In the present case, the legislative grant is not merely one of power to pass ordinances relating to specified police powers, regarded as a part only of the general police power, but the grant is of "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." The implication, therefore, is a necessary one that, notwithstanding the preceding clause of that section of the charter enumerated certain purposes for which ordinances might be passed, the Legislature intended the city to have, in addition, the power to pass ordinances for any and all purposes relating to the exercise of the police power. If, therefore, the power to pass the ordinance in question can be considered as an implied power, it is well within the definition of an implied power given by Judge Cooley, since the whole police power cannot be exercised if the exercise of any part of such power is to be withheld because such part is not expressly granted. But we regard the power here in question as an express power, and this is so whether we look in the construction of the charter, either to one or both of the sections heretofore reproduced. The grant of all the police power is an express grant, and every part of the whole is therefore derived by express grant in section 18. If there could be any doubt of this, such doubt is set at rest by section 31, which, as we have said, expressly declares that the power to pass any ordinance not inconsistent with that article or with the laws of the state shall not be limited by any enumeration of powers anywhere in said article. We regard the legislative intent therefore to be clear, whether the power be viewed either as express or implied. We did not understand the appellant to deny that this power can be delegated by the state to a municipal corporation. It is...
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