State v. Rowe

• Decision Date: 20 June 1890
• Parties: STATE v. ROWE.
• Court: Maryland Court of Appeals

20 A. 179

72 Md. 548

STATE v. ROWE.

Court of Appeals of Maryland

June 20, 1890

Error to criminal court of Baltimore city.

Argued before ROBINSON, BRYAN, MCSHERRY, FOWLER, BRISCOE, and IRVING, JJ.

Atty. Gen. Whyte, Charles G. Kerr, and Albert Ritchie, for appellant.

A S. Niles and Robert H. Smith, for appellee.

IRVING J.

By ordinance No. 17 of the year 1889, the mayor and city council of Baltimore set apart a certain portion of Center market particularly described in the ordinance, for a wholesale market for the sale of fresh and frozen fish and crabs. This was provided for in the first section of the ordinance. By the second section of the ordinance, it was provided "that no person shall be permitted to use said market for the sale of fresh and frozen fish and crabs as aforesaid without first obtaining a license therefor from the clerk of said market." The third section forbade the sale of fresh and frozen fish and crabs by the wholesale elsewhere than in this Hanover or Fell's Point Market, unless it was at points certain distances from the several markets of the city in the ordinance fixed, and established penalties for the violation of that section. By the fourth section it was provided that "all persons carrying on business in said wholesale fish and crab market shall pay to the clerk of said market the sum of one hundred dollars yearly for the license provided in section two of this ordinance." The fifth and last section repeals inconsistent ordinances. This ordinance failed to provide any penalty for selling without license, and that omission was supplied by ordinance No. 65 of the same year, which by a single section fixed the penalty for selling without license at $20. The appellee was indicted for selling without license, and a demurrer to the indictment was sustained on the ground that the fourth section of the ordinance was void, because the judge of the criminal court of Baltimore regarded the ordinance as intended to raise revenue for the city, and not to be in the exercise of its legitimate police power. The large license fee which is required by the ordinance was regarded by the court as a clear indication of an effort to raise revenue under the guise of the exercise of its police power, and therefore falling within the condemnation of Vansant v. Stage Co., 59 Md. 334.

It is well-established law that municipal authorities can exercise no powers which are not in express terms, or by fair and reasonable intendment, conferred upon them. In the case of Industrial School v. Brown, 45 Md. 332, this court adopts the language of the supreme court of the United States in Minturn v. Larue, 23 How. 435, that "any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public." It must be by express grant, or fair and reasonable intendment that a municipal corporation can get authority over the rights or property of the citizen, else the trades and business of the people would be at the mercy, and be dependent upon, the caprice of those who might exercise municipal power, instead of being regulated by the general law of the land." And it is "the plain duty of the courts to see that the corporate authorities do not transcend the authority delegated to them." State v. Mott, 61 Md. 303, 304; Vansant's Case, 59 Md. 334. By section 671 of article 4 of the Public Local Laws, [last Code,] the legislature has granted to the mayor and city council of Baltimore city the "power to erect and regulate markets;" and, by section 678 of the same article, it is enacted that "the mayor and city council may lease, sell, or dispose of the stalls and stands in any market in any manner, and for any term, they may think proper." A fair and reasonable construction of this power can only give to the city authorities, as the owners of the market-houses, the power of selling and leasing the stalls in their buildings as they may judge best; and the power to regulate the markets which is given by section 671 can only be held to intend to give reasonable police power with reference thereto. The power to regulate markets is, according to Mr. Dillon, in his work on Municipal Corporations, nothing more than a police power. 3d Ed. § 141. The taxing power belongs to the legislature, and it will not be held as conferred on a municipal corporation unless it be by express and unequivocal language, or by necessary implication. Vansant's Case, 59 Md. 334. In respect to the markets, we have already said it is clear that the city has no power beyond the right to sell, lease, and dispose of stalls in their markets; and to exercise a police power in regulating the same.

So far as this center market is concerned, by ordinance No. 78 of article 35 of the City Code of 1879 the city has provided for the renting, and the rates for the same, of the stalls in that market. That ordinance is not repealed in terms by...