BOWIE INN, INC. ET AL. v. CITY OF BOWIE ET AL.
No. 58, September Term, 1974
Court of Appeals of Maryland
Decided March 24, 1975
274 Md. 230
Alan I. Baron and Daniel I. Sherry, with whom were Stephen H. Sachs and Frank, Bernstein, Conaway & Goldman and Henry F. Leonnig on the brief, for appellants.
Joseph G. Finnerty, Jr., for appellees.
ELDRIDGE, J., delivered the opinion of the Court. O‘DONNELL, J., dissents and filed a dissenting opinion at page 249 infra.
On March 8, 1971, the City Council of Bowie enacted an ordinance designed to combat the problem of roadside litter in that municipality. Ordinance 0-4-71 made it unlawful for any person to sell any soft drink or malt beverage unless a deposit of at least five cents on each container were charged at the retail level and unless the deposit were given back upon return of the containers to the retail outlet. The ordinance provided that violation of any of its provisions would be a misdemeanor, subjecting the violator to a fine of up to $100 and imprisonment for a maximum of 30 days.
Two suits in equity were filed, seeking declarations that Ordinance 0-4-71 was invalid and seeking to enjoin the enforcement of the ordinance. The plaintiffs in the first suit were the Bowie Inn, Inc., and other retail merchants located in Bowie who sold soft drinks or malt beverages. The plaintiffs in the second case were the Maryland Soft Drink
The cases were tried before the Circuit Court for Prince George‘s County (William H. McCullough, J.). On March 21, 1974, the court in an oral opinion held Ordinance 0-4-71 to be valid. After the filing of an appeal to the Court of Special Appeals, we issued a writ of certiorari prior to a decision by the Court of Special Appeals.
The petitioners challenged Ordinance 0-4-71 on six grounds in the circuit court, and they reiterate those same grounds here. Petitioners argue: (1) that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Art. 23 of the Maryland Declaration of Rights by imposing a mode of doing business on retailers within Bowie and distributors to Bowie which bears no real and substantial relation to the reduction of litter in Bowie; (2) that the ordinance violates the Due Process Clause because its definition of “soft drink” is vague; (3) that the ordinance denies to the petitioners the equal protection of the laws in violation of the Fourteenth Amendment because it creates “an artificial and arbitrary classification” of soft drink and malt beverage containers which is not different from containers for other products; (4) that the Bowie ordinance violates the Commerce Clause of the United States Constitution because the benefit to be achieved through the ordinance is negligible when compared to the burden on interstate commerce created by the ordinance; (5) that the City of Bowie was not authorized by its charter or any act of the State Legislature to enact the ordinance; and (6) that the State Legislature has preempted the matter of deposit requirements on malt beverage containers, thereby denying to municipalities the right to enact legislation on this subject. We reject all of these arguments and affirm the decision of the circuit court upholding Ordinance 0-4-71.
Petitioners presented a variety of evidence before the circuit court for the purpose of demonstrating that the
With regard to the effectiveness of the Bowie ordinance in preventing littering in Bowie, petitioners presented the testimony of Christopher Gilson, a “litter control consultant.” Mr. Gilson testified that the ordinance would be ineffective. He suggested alternative methods for controlling litter in Bowie.
The respondents - City of Bowie and various concerned public officials - presented the testimony of Aldene Bain, who described two litter pickups which had been carried out by an environmental group and a group of high school
In the circuit court, Judge McCullough concluded that the ordinance would cause the Bowie retailers to lose some customers and would increase their cost of doing business. However, he viewed the fears of the Bowie retailers that their business would be severely damaged as “highly speculative.” He also found that the ordinance had a logical connection to resolving the problem of litter in Bowie, although the effectiveness of the legislation was uncertain.
(1)
Petitioners’ initial contention is that Ordinance 0-4-71 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Art. 23 of the Declaration of Rights of Maryland.1 They argue that the evidence presented in the lower court establishes that the ordinance will not achieve its goal of reducing litter in Bowie and that, therefore, it violates due process because of the economic burden it imposes on them. They rely principally on Md. Bd. of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103, 311 A. 2d 242 (1973).
In Sav-A-Lot,
The principles set forth in Sav-A-Lot do not lead to the conclusion urged by petitioners. The test for constitutionality under the Due Process Clause is whether a statute, as an exercise of the state‘s police power, bears a real and substantial relation to the public health, morals, safety, and welfare of the citizens of this state. Md. Bd. of Pharmacy v. Sav-A-Lot, supra, 270 Md. at 106; Davis v. State, 183 Md. 385, 397, 37 A. 2d 880 (1944). The exercise by the Legislature of the police power will not be interfered with unless it is shown to be exercised arbitrarily, oppressively or unreasonably. Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 48, 300 A. 2d 367 (1973). The wisdom or expediency of a law adopted in the exercise of the police power of a state is not subject to judicial review, and the law will not be held void if there are any considerations relating to the public welfare by which it can be supported. Sav-A-Lot, supra, 270 Md. at 106; Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48. Such a statute carries with it a strong presumption of constitutionality. Sav-A-Lot, supra, 270 Md. at 106; Salisbury Beauty Schools v. St. Bd., supra, 268 Md. at 48-49.
Petitioners are, in effect, asking us to substitute our judgment concerning the wisdom of Ordinance 0-4-71 for that of the City Council of Bowie. Before the enactment of Ordinance 0-4-71, a public hearing was held at which representatives of the soft drink and container industries presented their objections to the ordinance to the City Council. There was also testimony favorable to the
We conclude that, although the petitioners by the evidence presented in the circuit court may have cast some doubt on the wisdom of Ordinance 0-4-71, they have failed to demonstrate that it bears no real and substantial relation to the public health, morals, safety, and welfare of the citizens of Bowie. There is a clear relation between the mandatory deposit requirement and the object of reducing litter in Bowie. The City Council of Bowie could rationally conclude that the deposit law should motivate consumers to return containers. Moreover, respondents produced evidence of the need for a litter control measure in Bowie and evidence that a similar law had been effective in another state.3
Courts are under a special duty to respect the legislative judgment where the legislature is attempting to solve a serious problem in a manner which has not had an opportunity to prove its worth. The use of mandatory deposit statutes as a means of controlling litter has not been extensively tried, particularly on a municipal level. Thus, the situation here is in sharp contrast with that in Md. Bd. of Pharmacy v. Sav-A-Lot, supra, where the Court could examine the experience under the statute over a period of several years. Here, invalidation of the ordinance would deprive the City Council of Bowie and any other legislative
“Even where the social undesirability of a law may be convincingly urged, invalidation of the law by a court debilitates popular democratic government. Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophesy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests - the people.”
We find petitioners’ claim, that they have been denied due process because of the asserted arbitrary nature of Ordinance 0-4-71, to be without merit.
(2)
Petitioners’ next contention is that Bowie Ordinance 0-4-71, which is a criminal statute, violates the Fourteenth Amendment‘s Due Process Clause because its definition of “soft drink”4 is vague. Petitioners argue that certain
The general principle applied to claims that a criminal statute is void for vagueness was set forth in United States v. Harriss, 347 U. S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954) as follows:
“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”
Or as the Court earlier stated in Connally v. General Const. Co., 269 U. S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926):
“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. International Harvester Co. v. Kentucky, 234 U.S. 216, 221, 34 S.Ct. 853, 58 L.Ed. 1284; Collins v. Kentucky, 234 U.S. 634, 638, 34 S.Ct. 924, 58 L.Ed. 1510.”
See also Smith v. Goguen, 415 U. S. 566, 94 S. Ct. 1242, 1246, 39 L.Ed.2d 605 (1974); McGowan v. Maryland, 366 U. S. 420, 428, 81 S. Ct. 1101, 1106, 6 L. Ed. 2d 393 (1961); Giant of Md. v. State‘s Attorney, 267 Md. 501, 514-515, 298 A. 2d 427, appeal dismissed, 412 U. S. 915, 93 S. Ct. 2733, 37 L.Ed.2d 141 (1973); Potomac Sand & Gravel v. Governor, 266 Md. 358, 379, 293 A. 2d 241, cert. denied, 409 U. S. 1040, 93 S. Ct. 525, 34 L.Ed.2d 490 (1972).
The definition of “soft drink” in the ordinance gives “a person of ordinary intelligence fair notice” as to which beverages are within the deposit requirement. The definition is not “so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application.” In our opinion the definition in the ordinance rather completely describes what is included in the category of “soft drink” and what is not.
Laws are not “invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language,” United States v. National Dairy Products Corp., 372 U. S. 29, 32, 83 S. Ct. 594, 597, 9 L.Ed.2d 561, reh. denied, 372 U. S. 961, 83 S. Ct. 1011, 10 L.Ed.2d 13 (1963); United States v. Harriss, supra, 347 U. S. at 618. Thus, the fact that there may exist a beverage which is not clearly within or without the definition of “soft drink” does not require that the ordinance be invalidated. In the unlikely case that a retailer had any doubts with respect to what is included in the definition, he could request an opinion from the agency charged with enforcement of the ordinance or seek a declaratory judgment that a particular beverage is not included.
(3)
The third contention made by petitioners is that the ordinance denies them the equal protection of the laws in violation of the Fourteenth Amendment because it creates “an artificial and arbitrary classification” of soft drink and malt beverage containers. It is argued that soft drink and beer containers are not different from other beverage containers in any respect having a substantial relation to the object of controlling litter. Petitioners contend, in effect, that Bowie must regulate all other beverage containers, such as milk cartons and bottles, fruit juice cans, etc., in order to justify its regulation of soft drink and malt beverage containers.
Furthermore, legislative bodies are not required by the Equal Protection Clause to attack all aspects of a problem at the same time. The legislative body may select one phase of a problem and apply a remedy there, neglecting for the moment other phases of the problem. Williamson v. Lee Optical, 348 U. S. 483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563, reh. denied, 349 U. S. 925, 75 S. Ct. 657, 99 L. Ed. 1256 (1955).
The evidence presented in the circuit court that soft drink and malt beverage containers were particularly troublesome sources of litter and that a similar law had resulted in an improvement in roadside litter conditions in Oregon is sufficient to sustain Ordinance 0-4-71 as a rational means of obtaining cleaner roadsides in Bowie. The members of the City Council may well have concluded that soft drink and malt beverage containers were the principal source of that type of litter which most needed to be eliminated. They may
Other state appellate courts have considered “equal protection” attacks on litter control laws aimed at certain types of beverage containers. In Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A. 2d 271 (1954), a Vermont statute which prohibited the sale of beer and ale in nonreturnable glass containers was upheld. The Vermont court rejected an equal protection challenge to the statute in the following words (id. at 276-277):
“These facts show a large and increasing sale of ale and beer in these containers and their presence among the litter on the highways and adjacent lands to the injury of persons and property. This, no doubt, was known by the legislators. It is reasonable to believe that, being aware of these facts, they took steps by the passage of the act to effect a substantial reduction in the number of the articles among the litter and reduce to that extent the danger resulting therefrom.... The fact that there were other kinds of litter not covered by the act is no reason for declaring it invalid.... The legislators well may have found that these containers because of their number, construction and the likelihood of their being thrown away when empty, having no return value, caused special danger of injury and damage....
“It is clear that the facts show an obvious and real connection between the statute and the purpose for the application of the police power and
that the classification is based upon a difference having a reasonable and just relation to the object sought.”
In American Can Co. v. Oregon Liquor Control Com‘n, supra, 517 P. 2d 691, the Court of Appeals of Oregon upheld a state statute which required retailers to accept from consumers empty soft drink and beer containers and pay a refund on them. The statute imposed a similar duty on distributors with respect to the retailers. The court rejected an equal protection attack on the statute, saying (id. at 704):
“The fact that other containers may also create litter and solid waste does not invalidate the legislature‘s intent to deal with this species of solid waste and litter. As the United States Supreme Court said in Railway Express v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 93 L.Ed. 533 (1949), ‘It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.‘...”
Petitioners rely upon Md. St. Bd. of Barber Ex. v. Kuhn, supra, 270 Md. 496, and City of Baltimore v. Charles Center Parking, Inc., 259 Md. 595, 271 A. 2d 144 (1970), as support for their equal protection contention. Neither of these cases supports their argument. In Kuhn, this Court declared invalid
In City of Baltimore v. Charles Center Parking, Inc.,
In sum, we find that the City Council of Bowie established a reasonable ground for the classification of soft drink and malt beverage containers in its ordinance designed to protect against litter.
(4)
Petitioners maintain the Ordinance 0-4-71 violates the Commerce Clause of the Federal Constitution by placing an unconstitutional burden on interstate commerce.5 Petitioners assert that the ordinance will increase the cost of doing business to the Bowie retailers and will exclude certain distributors and bottlers from the Bowie market. The trial court found that there would be some increase in costs to the retailers, but rejected predictions of disaster as being “speculative.” Judge McCullough also noted that only one of the distributors who testified said that the ordinance would cause distributors to cease doing business in Bowie. Thus, whatever “burden” the ordinance places on interstate commerce would appear to be of a very minor nature.
Petitioners’ contention that the ordinance unduly burdens interstate commerce was effectively answered by the Supreme Court in Huron Portland Cement Co. v. City of Detroit, Mich., 362 U. S. 440, 448, 80 S. Ct. 813, 818-819, 4 L.Ed.2d 852, 78 A.L.R.2d 1294 (1960), where the Supreme Court upheld a municipal smoke abatement ordinance. Mr. Justice Stewart said for the Court (id. at 448):
“... State regulation, based on the police power, which does not discriminate against interstate commerce or operate to disrupt its required uniformity, may constitutionally stand. Hennington v. State of Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166....
“It has not been suggested that the local ordinance, applicable alike to ‘any person, firm or corporation’ within the city, discriminates against interstate commerce as such. It is a regulation of general application, designed to better the health and welfare of the community....”
The Bowie ordinance, though it may have some effect on bottlers outside of Maryland, does not discriminate against them. It affects all bottlers and distributors, whether in or out of this State, equally.
Petitioners argue that we should apply a “weighing test” to the Bowie ordinance. They rely upon Pike v. Bruce Church, Inc., 397 U. S. 137, 90 S. Ct. 844, 25 L.Ed.2d 174 (1970), where the Supreme Court upheld an injunction against an administrative order under the Arizona Fruit and Vegetable Standardization Act. The state administrative order had prohibited respondent Bruce Church, Inc. from transporting uncrated cantaloupes from its Arizona ranch to a nearby California city for packing and processing. The parties in Pike v. Bruce Church, Inc. stipulated that the practical effect of the order was to force Bruce Church, Inc. to build a packing facility in Arizona at a cost of about $200,000. In striking down the order, the Court said (id. at 142):
“Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 816, 4 L.Ed. 852. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Occasionally the Court has candidly undertaken a balancing approach in resolving these issues, Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915, but more frequently it has spoken in terms of ‘direct’ and ‘indirect’ effects and burdens.”
Assuming that a “weighing test” or “balancing approach” is applicable to a case such as this, we have no hesitancy in concluding that the putative local benefits of the Bowie ordinance clearly outweigh any burden which the ordinance might impose on interstate commerce. The benefit which the ordinance is designed to achieve is a substantially cleaner environment. The losses to Bowie retailers are, as the circuit court found, “speculative.” The losses, if any, which distributors will have are even less certain. The distributors and bottlers can continue to sell all of their products to Bowie merchants. If some products are available only in non-returnable containers, the retailers can continue to sell them. They need only collect a deposit upon sale of the containers and refund that deposit upon return of the containers.
Petitioners also argue that the Bowie ordinance violates the Commerce Clause because of the possibility that further and potentially conflicting laws could be passed by other municipalities, counties or states. This contention may be disposed of by noting that petitioners point to no existing law that would conflict with Ordinance 0-4-71. See Huron Portland Cement Co. v. City of Detroit, Mich., supra, 362 U. S. at 448, where the Court stated:
“And while the appellant argues that other local governments might impose differing requirements as to air pollution, it has pointed to none. The record contains nothing to suggest the existence of any such competing or conflicting local regulations. Cf. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003. We conclude that no impermissible burden on commerce has been shown.”
(5)
Next, the petitioners argue that Bowie did not possess the power to enact Ordinance 0-4-71. They point out that the Bowie charter itself did not contain an express authorization to enact a waste control ordinance. They rely upon the principle set forth in 1 Dillon, Municipal Corporations (5th ed.), § 237, that “‘a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, - not simply convenient, but indispensable.‘” This principle has repeatedly been applied by this Court. See, e.g., New Carrollton v. Belsinger Signs, 266 Md. 229, 237, 292 A. 2d 648 (1972); McRobie v. Town of Westernport, 260 Md. 464, 466, 272 A. 2d 655 (1971); Rushe v. Hyattsville, 116 Md. 122, 126, 81 A. 278 (1911).
While Bowie‘s charter may not have specifically authorized Ordinance 0-4-71, the ordinance was expressly authorized by the General Assembly.
“In addition to, but not in substitution of, the powers which have been, or may hereafter be, granted to it, ... [the legislative body of every incorporated municipality in this State] also shall have the following express ordinance-making powers:
* * *
“(14) Garbage. - To regulate or prevent the throwing or depositing of any dirt, garbage, trash, or liquids in any public place and to provide for the proper disposal of such material.”
The enactment of the deposit ordinance is clearly within this express grant of power set forth in
At the time of the enactment of Bowie Ordinance 0-4-71,
“[T]he General Assembly shall act in relation to the incorporation, organization, government, or affairs of any such municipal corporation only by general laws which shall in their terms and in their effect apply alike to all municipal corporations in one or more of the classes provided for in Section 2 of this Article.” (Emphasis supplied.)
See City of Gaithersburg v. Mont. Co., 271 Md. 505, 318 A. 2d 509 (1974). The General Assembly, apparently recognizing the unconstitutionality of
(6)
Petitioners’ last argument is that the General Assembly has preempted the field of alcoholic beverage regulation by enactment of
Furthermore, there is no conflict between Ordinance 0-4-71 and
Order affirmed.
Petitioners to pay costs.
O‘Donnell, J., dissenting:
I must dissent from the views expressed by my learned brethren, principally because, as I see it, Ordinance 0-4-71
In reviewing the ordinance we must, upon the totality of the factual evidence presented, determine whether the means selected by the ordinance — by requiring a deposit of at least five cents on each beverage container — bear a real and substantial relationship to the object sought to be attained by the ordinance — the control of litter within the City of Bowie, or whether the ordinance itself is unreasonable, arbitrary or unreasonably oppressive.
In Maryland Bd. of Pharmacy v. Sav-A-Lot, 270 Md. 103, 311 A. 2d 242 (1973), following a trial on the merits, this Court held, notwithstanding the presumption of its constitutionality, that
Judge Levine, who delivered the opinion for the Court, after noting “that whatever may be the current direction taken by the Supreme Court in the area of economic regulation, as distinguished from the protection of fundamental rights,” and that Maryland has adhered to the “traditional test” formulated by the Supreme Court and enunciated in Lawton v. Steele, 152 U. S. 133, 137 (1894), and followed in Goldblatt v. Hempstead, 369 U. S. 590, 594-95 (1962), stated:
“[T]he arguments advanced by the Board demonstrate no ‘real and substantial relation to the object sought to be attained,’ by the ‘means selected.’ Quite to the contrary, the evidence indicates that continued existence of the statute is inversely related to the public health and welfare. Consequently, we do not hesitate to label it ‘unreasonable, arbitrary and capricious,’ and therefore an unconstitutional exercise of the police power. Although the objectives attributed to the statute are, indeed, commendable ones, there is no ‘substantial relation’ between them and the statute. The result is, and we so hold, that subsection (iv) of § 266A (c) (4) violates the Due Process Clause of the Fourteenth Amendment and Art. 23 of the Maryland Declaration of Rights.” 270 Md. at 121, 311 A. 2d at 252.
Similarly, in Maryland State Bd. of Barber Examiners v. Kuhn, 270 Md. 496, 312 A. 2d 216 (1973), again following an evidentiary hearing, this Court declared
Judge Levine, who again delivered the opinion for the Court, in pointing out the test to be applied, stated:
“In cases brought under the Equal Protection Clause of the Fourteenth Amendment, but not involving so-called ‘suspect classifications’ or ‘fundamental personal rights,’ the Supreme Court and this Court have applied the more traditional ‘rational relationship’ or ‘fair and substantial relation’ tests, which require, at a minimum, that a statutory classification bear some ‘rational
relationship’ to a legitimate state purpose, Weber v. Aetna Casualty & Surety Co., supra; Morey v. Doud, 354 U. S. 457, 463-64, 77 S. Ct. 1344, 1 L.Ed.2d 1485 (1957); Dasch v. Jackson, 170 Md. 251, 265, 183 A. 534 (1936); see Hearst Corp. v. St. Dep‘t. of A. & T., 269 Md. 625, 644, 308 A. 2d 679 (1973) (dictum); cf. City of Balto. v. Charles Ctr. Parking, 259 Md. 595, 598, 271 A. 2d 144 (1970); or that the legislative classification rest upon some ground of difference having a fair and substantial relation to the object of the legislation, Reed v. Reed, 404 U. S. 71, 92 S. Ct. 251, 30 L.Ed.2d 225 (1971); Schilb v. Kuebel, supra; McDonald v. Board of Election, 394 U. S. 802, 89 S. Ct. 1404, 22 L.Ed. 2d 739 (1969); McGowan v. Maryland, 366 U. S. 420, 81 S. Ct. 1101, 6 L.Ed. 2d 393 (1961); Adm‘r, Motor Veh. Adm. v. Vogt, 267 Md. 660, 677, 299 A. 2d 1 (1973).” 270 Md. at 507, 312 A. 2d at 222.
In concluding that the section of the statute could not withstand constitutional scrutiny and hence violated the due process clause of the
“[I]f a statute purporting to have been enacted to protect public health, morals, safety and welfare has no real or substantial relation to those objects or is a palpable invasion of rights secured by fundamental law, it is our duty to so adjudge and thereby give effect to the Constitution, Mugler v. Kansas, 123 U. S. 623, 661, 8 S. Ct. 273, 31 L. Ed. 205 (1887); Maryland Board of Pharmacy v. Sav-A-Lot, Inc. et al, supra; Hiller v. State, 124 Md. 385, 391, 92 A. 842 (1914); State v. Hyman, 98 Md. 596, 615, 57 A. 6 (1904).” 270 Md. at 511, 312 A. 2d at 225.
In Salisbury Beauty Schools v. State Board, 268 Md. 32, 300 A. 2d 367 (1973), in sustaining a summary judgment under the
Although
In premising their conclusion that the ordinance does not violate
“To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts. . . .” (Emphasis supplied.) 152 U. S. at 137.
See also Goldblatt v. Hempstead, supra, restating the standard of “reasonableness” but finding upon the record that the appellants had not sustained the burden of proof in showing that the ordinance enacted was so onerous or unreasonable as to violate their “due process” rights, and where the Court stated:
“The ordinance in question was passed as a safety measure, and the town is attempting to uphold it on that basis. To evaluate its reasonableness we therefore need to know such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss
which appellants will suffer from the imposition of the ordinance. A careful examination of the record reveals a dearth of relevant evidence on these points. . . .” (Emphasis supplied.) 369 U. S. at 595.
As the principal evidence offered on behalf of the City of Bowie of “any consideration relating to the public welfare,” was the testimony of a member of two community improvement associations (who later became a member of the very Council which had enacted the ordinance), who, from the same report which had been submitted to the Council, described two projects for the pick-up of litter, conducted by volunteers, in April and in October, 1970, along two of the community‘s major traffic arteries, Maryland Routes 197 and 450, which are heavily traveled and used as ingress and egress to the Bowie Race Course when it is conducting its meets. Following the spring meet approximately 6,000 cans and 600 bottles were collected in the April pick-up; 4,000 cans and 255 bottles were collected in October. No distinction was made in tabulating the results of the pick-up between those bottles or cans collected and those to be regulated by the ordinance, although the witness indicated that many of the cans and bottles were of the same type as those scheduled for regulation. In the October pick-up 12% of the bottles were “returnable” soft drink containers; the remainder were “nonreturnable.” This testimony did not establish that these two projects had been restricted to the municipal limits.
The only other evidence supportive of “any consideration” was the testimony of a resident of Oregon, where a similar state-wide statute is in effect, who opined that he “believed” that litter had been reduced in that state as a result of its mandatory deposit statute.
In contrast to this meager evidence as a predicate for justifying the exercise of the “police power” the evidence was massive on behalf of the 16 retailers located within the limits of Bowie that the ordinance would have adverse and dire economic consequences and that the effectiveness of the
The appellants’ evidence established that the retail marketing area patronized by the residents of Bowie, a city of approximately 35,000 residents, was not limited by the artificiality of the municipal limits; that there were approximately 18 direct competitors outside those limits, some within sight of its border — all within one and one-half miles of the stores within the municipality; that Bowie residents have easy access to the stores unaffected by the ordinance; to those who already purchase from retailers outside the city will be added local patrons when the retailers within Bowie must remove preferred products from their shelves or, alternatively, be required to increase the retail selling price.
Those appellants operating small liquor or convenience stores have limited space for inventory and storage and rely upon large volume and high turnover sales; the storage and inventory systems currently used upon their premises for nonreturnable bottles and cans would prove physically inadequate for the storage and inventory of beer and soft drinks in returnable containers. Evidence established that imported and premium beers were unavailable in returnable containers, and soft drinks so available were extremely limited. It was pointed out, upon market analyses, that historically consumer preferences by choice have foreclosed the sale of returnable containers and that only a limited number of products are so sold. On three occasions one of the liquor stores undertook to advertise and to sell beverages in returnable containers within two percent of its cost, but failed to gain either additional customers or any new business for such products.
Almost without exception beer products sold by the retailers within the city are bottled by brewers located outside the State of Maryland; all premium beers, the majority of the beer market, were bottled out of the state and are supplied the retailers within the city by regional
The Bowie retailers selling soft drinks receive their products from bottlers located both within and without the state. Purchasing patterns had similarly forced bottlers to reduce their use of returnable containers; each of the bottlers who testified gave firm statistical evidence concerning the impact of increasing consumer reluctance to purchase returnable containers and showed a progressive “drop-off” statistically in the number of times a returnable bottle is refilled and redistributed. The bottlers now packaging products in nonreturnable containers demonstrated the competitive disadvantage to them as a result of the ordinance and testified that on an economic basis the packaging of their products in returnable containers could not be justified to meet a market solely for the City of Bowie. Evidence was additionally supplied through such bottlers that the restriction in the city to returnable containers would require the employment of new vehicles and additional personnel whose sole responsibility would be the servicing of Bowie retailers with such returnable containers.
Vivid testimony was given by the retailers themselves concerning the economic impracticability of using containers requiring a deposit; that unless the containers sold by them were marked or identified by some certain indicia as having been sold by a particular retailer, he would become subject to “taking in” and paying five cents for returned containers which he had not in fact sold — and which might have been collected from anywhere outside the limits of Bowie; there was evidence of additional expenses imposed upon the retailers for added labor in identifying containers sold by them, in processing the return of “empties” (bottles) and
The manager of the Bowie Inn, recognizing the easy access of customers to stores without the city and the purchasing patterns followed by them, was of the opinion that he would be “put out of business.”
A marketing expert, testifying on behalf of the appellants, was of the opinion, based upon market data, that approximately two-thirds of the present sales of beer were made in cans, that beginning in the late 1950s, from “marketing experience,” consumers had demonstrated an overwhelming preference for non-deposit containers and recognizing the competitive shopping area, separated only by the geographical borders of the municipality, estimated that the overall decline in the sales of beer, within Bowie, might exceed 50%.
A number of witnesses from the State of Vermont, where a state-wide statute prohibits the “sale of beer or ale in nonreturnable glass containers,” and whose premises were located near the border of Vermont with the neighboring states of New Hampshire and New York, gave graphic evidence concerning their loss of business — in some instances as high as 75%, during the first two months of 1974, by comparison with those same months in 1973, following the enactment of the Vermont state-wide statute.
The only expert witness on “litter control,” testifying on
In describing alternate methods by which the City of Bowie might substantially reduce its litter the witness proposed the proper placement of litter receptacles in areas peculiarly subjected to litter, such as shopping centers and parking areas, the enforcement of state laws against the discarding of litter from motor vehicles,2 a realistic
Upon such a record of evidence we are not asked to overrule a determination of fact based upon the credibility of the witnesses, the weight to be given their testimony, or their demeanor since the trial judge did find as facts that the ordinance “will have the effect of causing a loss of business to city retailers,” that “the customers of the city retailers will go elsewhere to purchase their beverages in order to avoid the five-cent deposit,” that “in order to comply with the ordinance they [the retailers] will have to bear the expense of handling the returned containers, the expense of storing them and the expense of disposing of them” and that this “will increase the cost of doing business by the retailers.” He also found as a fact that “customers will avoid local retailers charging a five-cent deposit” and that “some of the customers in Bowie will favor non-Bowie retailers which are not burdened by the ordinance.” Although the trial court concluded that the extent of the economic loss to be sustained by the retailers was “quite speculative” because of a lack of actual experience, he found that the burden imposed by the ordinance — notwithstanding the appellants’ evidence — was not “so substantial that the court could conclude that it was unduly oppressive or unreasonably restrictive.”
This conclusion appears to be “almost demonstrably wrong from the record,” as we noted in Grant v. City of Baltimore, 212 Md. 301, 316, 129 A. 2d 363, 370 (1957), cited in Eutaw Enterprises v. Baltimore City, 241 Md. 686, 694, 217 A. 2d 348, 353 (1966).
The trial court in sustaining the validity of the ordinance — as has the majority here — predicated its conclusion on the premise that “such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported.” Although it found, as does the majority, that the effect of the ordinance in bringing about
Although the majority finds that “there is a clear relation between the mandatory deposit requirement and the object of reducing litter in Bowie,” it fails to make a finding, under the test which this Court had adopted, that the means employed by the ordinance “bears a real and substantial relation to the ends” sought to be attained. Nor can I agree — in view of the overwhelming evidence by the appellants, and the findings of fact by the trial judge — that the constitutionality of the ordinance should await an “extensive trial” and “opportunity to discover whether the ordinance will be good, bad or indifferent in its results.”
I do not find the holdings in American Can Co. v. Oregon Liquor Control Comm‘n, 15 Ore. App. 618, 517 P. 2d 691 (1973), review denied, 15 Ore. App. 618, 517 P. 2d 691 (1973), or Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A. 2d 271 (1954), here controlling. In American Can Company the Court of Appeals of Oregon upheld a statute requiring all retailers and distributors (including manufacturers) to return a deposit on any container sold by him. The statute further outlawed the sale of “pull top” cans. The statute there in question had state-wide application, applied to all types of beer and carbonated beverage containers and required distributors to reimburse retailers for the return of any container used in the sale of their beverage. The Oregon court held that their state constitutional provision — unlike
The Supreme Court of Vermont, in Anchor Hocking Glass Corp., in upholding the constitutionality of a state-wide
Of much more persuasion — upon facts virtually identical to those submitted here — are the holdings in Kokales v. City of Ann Arbor [No. 7758, Circuit Court for Washtenaw County, decided April 10, 1974],3 where the City of Ann Arbor enacted a similar mandatory deposit ordinance at the retail level and attempted to support its constitutionality by claiming that it would bring about a reduction of litter.
The Michigan Court, upon strikingly similar evidence, applied the test which our Court has adopted and noted that “even if the stated objectives of an ordinance are proper and constitutional, an ordinance may be declared invalid if it does not reasonably accomplish its objectives.” That court, upon its examination of the evidence submitted, finding that there was “no basis for concluding that the refund deposits would have any effect upon the litter problem in Ann Arbor,” and that the ordinance “does not bear a reasonable relation between the remedy adopted and the public purpose,” struck the ordinance down. In doing so the court found that “[I]f the ordinance were enforced the costs to the plaintiffs would be constitutionally prohibitive as compared to the miniscule benefits to the City of Ann Arbor” and that to require a deposit on a container that could not be refilled and reused was clearly a deprivation of property and did nothing to relieve the litter problem. That court was of the view that if a similar statute were passed on a state-wide basis in Michigan it might withstand the test of constitutionality, but as an ordinance deprived the plaintiffs of “due process of law.”
Notes
“Soft drink beverages means ginger ale, root beer, sarsaparilla, pop, any mineral waters, soda waters, cola, or other carbonated or non-carbonated beverages, artificial mineral waters in liquid form commonly known as soft drinks. Soft drink beverages does not include dairy products or fruit juices.”
The possible difficulties of defining “soft drink” are discussed in Note, State and Local Regulation of Non-returnable Beverage Containers, 1972 Wis.L.Rev. 536, 542-543. The authors of the note comment favorably on Bowie‘s definition. Id. at 543.
“The Comptroller is hereby directed and empowered to make, amend, alter and publish rules and regulations for the proper enforcement of his duties under this article. He is authorized to adopt rules and regulations in regard to ... nature, form and capacity of all containers....”
Sec. 186 provides:
“The Comptroller is hereby authorized and empowered to make, amend, alter and publish rules and regulations regarding the amount of deposit on returnable beer containers which shall be charged and collected by manufacturers and wholesalers of beer.”