State's Attorney of Baltimore City v. City of Baltimore

• Citation: 274 Md. 597,337 A.2d 92
• Decision Date: 06 May 1975
• Docket Number: No. 128,128
• Parties: STATE'S ATTORNEY OF BALTIMORE CITY et al. v. Mayor and CITY Council OF BALTIMORE et al.
• Court: Court of Appeals of Maryland

Page 597

274 Md. 597

337 A.2d 92

STATE'S ATTORNEY OF BALTIMORE CITY et al. v. Mayor and CITY Council OF BALTIMORE et al.

No. 128.

Court of Appeals of Maryland.

May 6, 1975.

William J. Giacofci, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Walter G. Lohr, Jr., Asst. Atty. Gen., on the brief for State's Atty. of Baltimore City and Jay Fred Cohen, Baltimore, on the brief), for Milton F. Kirsner and the Linden Holding Company, for appellants.

Joseph S. Matricciani, Asst. City Sol. (Benjamin L. Brown, City Sol. and Richard M. Hartman, Chief Asst. City Sol., Baltimore, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

ELDRIDGE, Judge.

The principal question in this case concerns the constitutionality of Maryland Code (1957, 1972 Repl. Vol.), Art. 53, § 44. That statutory provision, enacted by the General Assembly into law by Section 10 of Chapter 423 of the Acts of 1971, provides:

'From and after July 1, 1973, violations of the Building and Electrical Code of the Baltimore City Code, Article 32 (1966 Edition), are to be actions at law. Jurisdiction in all cases of violations of the Building and Electrical Code shall be vested in the District Court of Baltimore City having civil jurisdiction.' ¹

Apart from the effect of Art. 53, § 44, violations of Article 32 of the Baltimore City Code (1966 Edition) (the 'Building Code of Baltimore City') and violations of Baltimore City Ordinance No. 902, approved December 22, 1966 (the 'Housing Code of Baltimore City'), are criminal offenses (misdemeanors), punishable by a fine of up to three hundred dollars for each offense.

On June 20, 1973, about ten days before Art. 53, § 44, was to become effective, the State's Attorney of Baltimore City wrote to the City Solicitor of Baltimore City, advising the City Solicitor of the provisions of Art. 53, § 44, and informing him 'that after July 1, 1973, the responsibility for legal action in such cases involving the Building and Electrical Code will have to be transferred to your office.' ² Thereupon, the Mayor and City Council of Baltimore, represented by the City Solicitor, instituted this action against the State's Attorney of Baltimore City by filing a bill of complaint in the Circuit Court of Baltimore City. The plaintiff sought a declaration that Art. 53, § 44, was unconstitutional and a 'mandatory injunction requiring the Defendant (State's Attorney) . . . to continue the criminal prosecution of all violations of the Building and Electrical Codes of Baltimore City, Article 32 (1966 Edition).'

Subsequently, Robert C. Embry, Jr., Commissioner of the Department of Housing and Community Development of Baltimore City, intervened as a party plaintiff. Milton F. Kirsner and The Linden Holding Company, property owners in Baltimore City and defendants in pending criminal actions growing out of violations of the City's Building and Electrical Codes, intervened as parties defendant. After the orders permitting intervention, the action was transferred to the Superior Court of Baltimore City pursuant to Maryland Rule 515. In the Superior Court, the plaintiffs filed an 'Amended And Supplemental Declaration By Interlineation,' setting forth more explicitly the grounds upon which they claimed that Art. 53, § 44, was unconstitutional. The plaintiffs repeated their request for a declaratory judgment and also sought the issuance of a writ of mandamus requiring the State's Attorney to prosecute criminally 'all' violations of the Baltimore City Building and Electrical Codes.

As to the grounds of unconstitutionality, the plaintiffs contended that Art. 53, § 44, was inconsistent with the following constitutional provisions:

(1) the 'Home Rule' amendment to the Maryland Constitution, particularly Art. XI-A, § 4;

(2) Art. IV, § 41A, of the Maryland Constitution, which (with an exception not here pertient) requires that the jurisdiction of the District Court be uniform throughout the State;

(3) the 'due process' clause of the Fourteenth Amendment to the United States Constitution because, it was alleged, the statutory provision was 'quasi-criminal legislation' and was too vague to be enforced;

(4) the clause of Art. III, § 29, of the Maryland Constitution, requiring that a law shall embrace one subject;

(5) the clause of Art, III, § 29, of the Maryland Constitution which requires that the subject of every law 'shall be described in its title';

(6) the 'equal protection of the laws' provision of the Fourteenth Amendment to the United States Constitution.

In their responses to the amended and supplemental declaration, the defendants Kirsner and Linden Holding Company, in addition to denying that Art. 53, § 44, was unconstitutional, challenged the standing of the plaintiffs to bring the action. The answer of the defendant State's Attorney did not raise the standing question.

On June 21, 1974, the Superior Court (Cole, J.) issued an order declaring Art. 53, § 44, to be 'null, void, unconstitutional and of no effect.' The order also provided that the State's Attorney 'is ordered to criminally prosecute all violations of the Building and Electrical Codes of Baltimore City' and that 'a Writ of Mandamus shall issue requiring' the State's Attorney to prosecute criminally all such violations. In an opinion delivered at the same time, the Superior Court first held that the plaintiff Embry, being the official 'charged with the responsibility of enforcing the Housing Code and Building Code, . . . is entitled to maintain this suit . . ..' Because of its ruling that Commissioner Embry had standing, the Superior Court stated that it did not have to decide whether the City had standing. The Superior Court went on to hold that Art. 53, § 44, violated § 4 of Art. XI-A of the Maryland Constitution (the so-called 'Home Rule Amendment'). The court also held that the statute violated Art. IV, § 41A of the Maryland Constitution, which requires that the jurisdiction of the District Court be uniform throughout the State. Holding the statute unconstitutional on these two grounds, the Superior Court found it unnecessary to consider the other constitutional issues raised.

The defendants took an appeal to the Court of Special Appeals. Thereafter this Court on its own motion issued a writ of certiorari prior to a decision by the Court of Special Appeals. See Code (1974), §§ 12-201 and 12-203 of the Courts and Judicial Proceedings Article.

The defendants Milton F. Kirsner and Linden Holding Company raise again the threshold issue of the plaintiffs' standing to bring this suit. They rely upon the principle that generally a subdivision like Baltimore City, 'as a creature of the State, possesses no power which it may invoke against the State, even on constitutional grounds.' City of Baltimore v. Concord, 257 Md. 132, 139, 262 A.2d 755, 759 (1970). See also Baltimore County v. Churchill, Ltd., 271 Md. 1, 5-8, 313 A.2d 829, appeal dismissed, 417 U.S. 902, 94 S.Ct. 2594, 41 L.Ed.2d 207 (1974), and cases therein cited. However, it was stipulated by all parties that the plaintiff Embry, the Commissioner of Housing and Community Development of Baltimore, is the city official responsible for the administrative enforcement of the Building and Electrical Codes of Baltimore City. Therefore, we conclude that he had standing under the principle that a public official, faced with a dilemma 'either in refusing to act under a statute he believes to be unconstitutional, or in carrying it out and subsequently finding it to be unconstitutional,' has standing to bring a declaratory judgment action to challenge the validity of the statute. Baltimore County v. Churchill, Ltd., supra, 271 Md. at 5, 313 A.2d 829; City of Baltimore v. Concord, supra, 257 Md. at 138, 262 A.2d 755; Pressman v. State Tax Commission, 204 Md. 78, 85, 102 A.2d 821, 825 (1954). Since one of the plaintiffs, Commissioner Embry, had standing to bring the action, it is unnecessary for us to consider the matter of Baltimore City's standing.

Turning to the constitutionality of Art. 53, § 44, we agree with the Superior Court that the enactment of § 44 violates a restriction upon the authority of the General Assembly imposed by Art. XI-A, § 4, of the Maryland Constitution. Consequently, we need not consider any of the other asserted grounds for the statute's invalidity.

Art. XI-A of the Maryland Constitution, the 'Home Rule Amendment,' was ratified by the voters in 1915. Its purpose was described by Judge W. Mitchell Digges for this Court in State v. Stewart, 152 Md. 419, 422, 137 A. 39, 41 (1927):

'The wisdom of incorporating in the organic law of the state such provisions as are contained in this article had been urged for a number of years prior to its adoption, the reasons assigned by its proponents being that a larger measure of home rule be secured to the people of the respective political subdivisions of the state in matters of purely local concern, in order that there should be the fullest measure of local self-government, and that these local questions should thus be withdrawn from consideration by the General Assembly, leaving that body more time to consider and pass upon general legislation, and to prevent the passage of such legislation from being influenced by what is popularly known as 'log-rolling'; that is, by influencing the attitude and vote of members of the General Assembly upon proposed general laws by threatening the defeat or promising the support of local legislation in which a particular member might be peculiarly interested.'

The provisions of Art. XI-A which accomplished the purpose of limiting the right of the General Assembly to consider certain local matters which were vested in the counties adopting a home rule charter and in Baltimore City, are §§ 2 and 4 of Art. XI-A. Section 2 provides:

'The General Assembly at its first session after the adoption of this amendment shall by public general law provide a grant...