County Council v. Investors Funding Corp.

COUNTY, COUNCIL FOR MONTGOMERY COUNTY FUNDING MARYLAND v. INVESTORS CORPORATION et al. September Term, 1972.]

[No.

Decided December 1973. before argued on was 1973, The cause Murphy, 15, May JJ., and and J., and C. Digges, McWilliams, Barnes, Smith J., and C. reargued before on October 1973, Murphy, and JJ. Digges Levine, Singley, Smith, Barnes, McWilliams, Attorney, with Jr., Chen, County Assistant William J. McKernon, Attorney, County S. whom were Richard Alfred Stephen P. Attorney, and County Carter, Deputy H. brief, for Attorney, County on Johnson, Assistant appellant. County, George’s by Prince filed Curiae brief

Amicus Casula, Attorney, T. County Glenn Maryland, Joseph S. County Oneglia, Harrell, M. Associate and Nelson Jr. Attorneys, on the brief. Daisley P. and were Huddle, with whom William

David brief, appellees. on Blackstone Michael C. opinion J., Court. Barnes delivered C. Murphy, part part in in and JJ., and dissent and concur Smith, concurring part dissenting in

Barnes, J., opinion filed an part Smith, J., in in page concurs at 446 infra. Chapter appeal question legality

This draws into amended), County (1965, Montgomery as 93A of Code * Bill “Fair Relations.” Enacted as entitled Landlord-Tenant County (the County Montgomery 19-71 Council for Council) Act) Chapter (the undertakes on June 93A separate comprehensively regulate in four articles to apartment its concomitant rental business Montgomery relationships and activities in landlord-tenant Corporation, County. Funding together with a Investors corporations engaged in the number of other individuals renting dwelling Montgomery County in business of units (the landlords), sought declaratory decree the Circuit Montgomery County null, Court for that the Act was void designated and of no effect because a number of particulars, constitutions, it violated the state and federal beyond power and was otherwise of the Council to enact. J.) (Moore, opinion The court concluded an extensive oral possessed that while the Council the basic under the County’s Chapter 93A, Home Rule Charter to enact various illegal, of its were unconstitutional or otherwise nugatory being public general conflict with the laws of declaring, State. From decree so both the landlords and appealed. the Council 93A, enacting Chapter

In made a number of Council Findings” “Legislative which it set forth 93A-1 of Act, viz., unequal I that: “there is often of the tenants; bargaining power and between landlords that principles pursuant common law to which leases are grants right possession rather than interpreted as of of agricultural dependent in an mutual and covenants evolved setting setting and are ill-suited to the modern residential * County Montgomery recently Code Chapter recodified This was 29; lower court’s (1972), Chapter decision, the citations with consistent originally codified. the Act as we shall refer to and County; to facilitate fair order this urban housing development arrangements, equitable foster day, present will meet the minimum standards people, it health, safety welfare promote and and County provide a appropriate necessary and is rights minimum determine certain and office to commission prohibitions, landlords remedies, obligations for and and property.” The residential certain kinds of and tenants of are set forth underlying “purposes policies” and of the Act 93A-2(b): § clarify governing law

“(i) simplify and dwelling units; rental of

(ii) encourage and tenants to maintain landlords housing in this improve quality

and County;

(iii) equitable fair and relations between to assure tenants; and and

landlords law (iv) of landlord to revise and modernize realistically the needs tenant to serve more and developing society within an urban County, Maryland.” Montgomery that, subject public general provides 93A-3 Section State, regulate and determine the Act “shall laws of the obligations parties and legal rights, remedies any concerning any agreement, rental beneficiaries containing more rental multi-family two or structure County wherever executed.” dwelling within this units Affairs is created Landlord-Tenant The Office of § placed under the II of the Act 93A-6 of Article Director; the Office supervision of an Executive immediate principal the executive branch of designated office of is as a with County government, and is vested Montgomery provisions. authority implementing the Act’s primary initiate, empowered 93A-7“to The Executive Director Chapter investigate violations and conciliate grant, investigate, hereunder, any complaints filed deny, revoke, suspend, refuse or renew licenses hereunder.” A by Commission on Landlord-Tenant Affairs is created § II; comprised 93A-8 of Article it is of nine members appointed by County Executive, three of whom are to be by organizations selected from nominations made representing landlords; three from nominations made organizations representing tenants; and three members of public large at who are neither tenants nor landlords. 93A-9; are among Commission’s delineated § them is the to enforce the of the Act “through any appropriate means; including but not limited (ii) imposition penalty, to . . . a of civil not in excess of $1,000, any provision Chapter, (iii) for the violation of of this imposition money damages against of an award of a landlord or tenant for the benefit of either as Chapter, (iv) ordering repairs by for tenant, (v) investigation landlord or and conciliation any Chapter any complaints violations of this or filed investigation any relating hereunder and the matter any operate facility.” license to conduct or a rental Act, III “Licensing entitled of Rental Facilities,” provides in 93A-16that after the Act’s effective § (September 19,1972),

date “it shall be unlawful to conduct or operate Montgomery County facility within a rental without having applied operate first for or obtained a license to or facility comply conduct said . ...” rental Failure to with licensing requirements declared misdemeanor § 93A-17, punishable by $1,000 a fine not exceed and costs required for each offense. Landlords of rental facilities are apply 93A-18 to to the Office of Landlord-Tenant § twenty days Affairs for licenses within after the Act’s effective date. Provision is made for the issuance of temporary pending inspection and conditional licenses facility 93A-4(m) “any 1. A structure, rental is defined in to mean: appurtenances, operated single combination of related structures and as a entity operator provides in which the thereof for a consideration two or dwelling units; any more but shall not be construed mean transient boarding houses, homes, inns, motels, hotels, facilities such as school tourist dormitory, hospitals facilities; operated or medical facilities religious eleemosynary purposes.” laws; compliance applicable with all rental facilities and authority with to determine the Executive Director is vested facility sought for which licensure whether rental provides governing with the law. Section 93A-19 conforms per dwelling shall an license fee unit be that annual regulation by County by Executive written established pay “in an amount sufficient to the costs incidental to Chapter Chapter and to make this administration of this self-sustaining.” 93A-21 authorizes the Executive Section inspections to to be made of licensed Director cause biennial comply they whether with all rental facilities to determine laws; facility comply, applicable if rental fails so to “may subject remedial be to revocation or other license by determined the Executive Director.” Section action as revoke, deny Director to 93A-24 authorizes the Executive violations of suspend licenses for failure to eliminate laws; persons aggrieved action applicable may appeal an the Commission Executive Director file to reverse, modify required “by order, either which is [to] findings, appealed its and shall issue affirm action provide copy writing and a thereof opinion, order “final action” is person aggrieved.” Commission’s County. Montgomery appealable to for the Circuit Court § 93A-25. IV the Act is entitled “Landlord-Tenant

Obligations.” mandates all leases or Section 93A-26 that dwelling in a occupancy unit rental agreements for the County comply Montgomery with a facility must located among specified requirements”; included number of “[l]ease duplicate requirements is that leases executed such (and two-year writing); they be initial be in that for thus they terms, option; contain no at the tenant’s due; judgment rent authorization for confession retaliatory provide guarantee that no such leases bona fide will be the landlord for action taken designated persons complaints tenant to made outline a number of agencies. 93A-29 and 30 Sections required are “obligations” which tenants and landlords with complaints through 33 with comply. 93A-31 deal Sections filed with the Executive Director of “defective tenancies” agreement and lease violations. The Executive Director is required by investigate 93A-34 complaints all such § determine Chapter “whether a violation of this has occurred exists”; tenancy or a defective if he an makes affirmative finding, required by he is 93A-36 to undertake conciliation § complaint, notify and to the Commission if his efforts are not successful. hearings Section 93A-40deals with before Commission to determine whether the Article have been violated. Where the Commission finds 93A-43(b) that the landlord tenancy, has caused a defective specifies that “all affected tenants” be entitled to leases, immediate termination of their to return of their security deposits and previously of certain rental monies paid landlord, damages award of from the landlord tenancy, sustained as a result of the defective not to $1000, paid by exceed and to an amount to be the landlord equivalent expenditure a adequate reasonable to obtain temporary housing substitute rental in the area. Where the Commission finds that a tenant has caused a defective tenancy, landlord, by 93A-43(c), may the be entitled to § lease, terminate the damages and to an award of from the tenant tenancy, sustained as a result of the defective exceeding damages may The Commission’s award $1000. by any enforced or “in landlord tenant court of competent jurisdiction, any and such court is authorized to grant judgment plus for such monies interest from the date 93A-43(c)(ii). comply of the award.” “any Failure to with § misdemeanor, Commission order or summons” is made a punishable by up 93A-44(a). appeal a fine An $1000. § Montgomery County for Circuit Court a “final from action” of the Commission rendered under the Article is authorized 93A-45.3 § 93A-4(e) tenancy” “any A2. “defective is defined in to mean: § condition facility in a rental a constitutes violation of the terms of the lease or

any provision law, Chapter any of this a constitutes violation of regulation or code.” public hearings four-day period 3. The Council held extensive a over enacting Chapter 93A; addition, public before it held twelve work

411 authority holding had the basic under In that Council legislation regulatory its Rule to enact local Home Charter apartment and landlord-tenant rental business County, relationships within the lower and activities Montgomery placed upon reliance our decision court A. 242 Greenhalgh, Md. 252 2d League v. 253 Citizens (1969). case, here, an enactment of the That as involved County Montgomery its Home County for under Council extensively history Charter, we there reviewed Rule and Maryland XI-A of The purpose of Article Constitution and Express Act, Amendment) (the Powers Home Rule Vol.), 25A, (1957, Repl. Code XI-A particularly We noted that of Article 5 thereof. § § by public general law, Assembly, provides General that the County grant express powers for “provide such shall a ,” and . . . that thereafter form a charter Counties § adoption a provides after charter that public enacted County, no local law shall be General any subject by the Assembly County on covered provides provided in 2. express powers granted as Section adoption charter, County a Council: that after the “subject the Constitution and Public General State, have full to enact Laws shall by representatives who and tenants of landlords attended sessions purports legislative drafting participated reflection to be Act. The Act demographically, Montgomery recognition that, Council’s imperative provide County burgeoning, need to there is apartment regulation and its rental business and control of limited local concomitant relationship. before the Evidence adduced landlord-tenant us, 1940, in Council, County’s population shows that the in record before and included the 340,928. grown by 1960, 83,912, From it had to was but growth per 1960, County’s population cent. Between was 107.4 to the 1950 1960 and County’s 97,952 persons 1966, were to the added additional County grown 522,809 By 1970, population population. people; had to the 763,000. County’s projected 1985, population reach by to the apartments County; that, 50,315 in the in were there discloses record County apartment housing in from 1960 to 1970 the the increase in amounted issued between building 87,000 per approximately permits to 205.3 cent. Of almost two-thirds 1960 and the first six months apartments, buildings garden apartment and units: elevator for were townhouses. necessary by 1985, projections it will be that Statistical indicate County 38,450 apartments by to the number the increase County, approxi- population of the future and mately 75,000 to accommodate will needed. acres of land be County including power local laws of said . . . repeal County laws . . . to or amend local of said , by upon express . . . all matters covered powers granted . . ..” grant express powers given

Under the to chartered Code, by power granted in counties Article 25A of the was § 5(A) county, including enact local laws such for “[t]o power repeal or amend local laws thereof enacted Assembly upon express General the matters covered powers in granted; provide this article for ordinances, resolutions, bylaws enforcement of all regulations adopted authority under the of this article fines, penalties imprisonment, according enforceable may prescribed, law penalty as be but no such fine or shall $1,000.00 any imprisonment exceed for offense or more for Following specific than six months.” the enumeration of powers granted (S) to chartered counties in subsection provides: thereof foregoing powers

“The or other enumeration of power this article shall not be held to limit the county council, thereto, pass in addition all ordinances, bylaws, resolutions or not inconsistent with the of this article or the laws of the State, may proper executing enforcing as powers enumerated in this section or article, elsewhere as well as such ordinances expedient maintaining be deemed peace, good government, health and welfare of the county.

Provided, granted herein shall only be exercised to the extent that the same are by public general law; provided, however, legislate given that no shall be licensing, regulating, prohibiting with reference to submitting option, to local the manufacture or spirituous liquors.” sale of malt or Summarizing powers granted Council, we said in Greenhalgh, 160-62, 253Md. at 252A. 2d at 246-47: supra, Council, given legislative having ‘full’ “The been XI-A, given specified by power Art. is also as pass statutory power ‘all’ it deems ordinances only police power and the limit expedient under the powers is stated to be that such ordinance on its be inconsistent with the of Art. cannot State, and the further 25A or the laws of the only provisos granted shall ‘that the herein that the same are not be exercised extent by public general law’ and that ‘no given power legislate shall be with reference to submitting licensing, regulating, prohibiting or option, the manufacture or sale of malt or local spirituous liquors.’ purpose legislature in and intent of the

supplying implementation called for Art. passage express powers

XI-A the of the act was legislature give County to take from power laws, the exclusive and the to enact local delegation power, commonly reasons for this possible rule, called home were first to see as far log jam days of unacted on in the late measures legislative Annapolis session which had passage caused of laws that had not received scrutiny and, second, careful or due consideration permit legislation solely by ‘to local to be enacted directly those affected it without interference representatives from of other sections State.’ Montgomery League, . . 249 Md. Scull. Citizens [v.

271, 274, (1968).] 239A. 2d purposes

Gratification would not be afforded prompted rule if home or the reasons which it language (S) of 5 25A were of Art. not to be grant legislate construed as a broad on specifically matters not enumerated in Art. 25A language clearly and the of that section indicates Antieau, such construction is sound. See Law, 31.05. County Law:

Local Government § County Montgomery power given had been Similar of 1945 which of the Laws in Ch. 947 1945 in adoption and now the charter of survived Montgomery is 2-23 of the general substance § (1965). See, Scull, pp. of County 283-284 Code Md. good peace, power pass grant

A to laws for of community welfare government, health and general as ‘a welfare or referred to is sometimes clause,’ McQuillin, power general grant of Ed.), 24.43, (3rd and: Corporations Municipal § passed which be it ‘Under ordinances they beneficial, will be necessary and and are courts, provided they are adjudged valid general with and consonant reasonable corporation, the local powers purposes of and with the United States and not inconsistent statutes, and the Constitution, and treaties policy of the state.’ laws and in a true, McQuillin points out 24.45 that It is § a taken the view that have number of courts municipal corporation grant power a general specific carrying of the only the out authorizes it, if delegated but even it be assumed point view is sound the abstract a that such negates (S) that this language the idea § empower intent, only it does was its carry out, designed exercise legislative action goes it powers,, further implement enumerated given well’ to ordain for the power ‘as add that is good government, peace, health and maintenance County. McQuillin 24.44 protect health, morals, peace good and community, promote order of the its welfare trade, in commerce, industry manufacture, carry every appropriate out object contemplated in the creation municipal of the ” corporation.’ recognition Our in Greenhalgh expansive nature of legislative upon conferred the Council Article 25A, (S), coupled with holding that, pursuant our § to such power, the Council could enact housing a fair law prohibiting religious racial and in discrimination the sale or housing rental of County is, think, we authority clear for the ruling lower court’s that the empowered Council was legislation to enact regulatory local apartment rental business and relationships landlord-tenant Montgomery County. also, See McBriety City Baltimore, 223, 219 Md. 232-233, (1959). Indeed, A. 2d the landlords do directly challenge power the basic of the Council to legislate in field; they maintain, instead, that enacting Chapter 93A, illegally the Council has exercised its power in a number of instances.4 appeal, contention, 4. On the landlords have abandoned their made in the court, lower 12, expressly- that of Acts of ch. power legislation revoked the subject of the Council to enact on the

landlord-tenant affairs.

I. Change Law The Power the Council Common Contending possess the that the Council does not revise, repeal Maryland, law amend or the common provisions of landlords seek to invalidate those the Act derogation concededly law, which are of the common viz.: duplicate, (1) and a that all leases executed copy provided tenant; two-year (2) all be offered for an initial that leases option, tenant’s unless reasonable term at the offering a different initial exists cause term; express

(3) contain the landlord’s that all leases habitability and covenant warranty upon imposing obligation repair, such landlord;

(4) reasonably guarantee a tenant all leases rights protection

attempting to enforce his landlord; retaliatory action from landlord to take authorize the (5) that lease no premises tenant’s possession of legal formal property therein without personal process; to terminate permit the tenant all leases thirty days’ written notice and lease, on charge not to exceed a reasonable

payment of involuntary change rent, due to an two months’ Washington metropoli- employment from the of beyond cause for other reasonable tan area or control; tenant’s may, referral County Attorney on of

(7) that bring Commission, action complaint pending quo resolution preserve the status complaint. of the Maryland that Article 5 of the

The landlords reason guarantees Rights expressly of to the Declaration

417 England, law of of this State the common inhabitants repeal only revision, or the State subject to amendment Rights of and the Legislature; that the Declaration interpreted as Maryland are to be one Constitution Maryland XI-A, 3 instrument; that Article power counties the grants charter home rule Constitution laws, subject Constitution; to the local enact therefore, subject is, laws to enact local Council’s amend, may revise or laws that such local the limitation being law, power expressly reserved repeal the common Legislature. State provides pertinent Rights 5 the Declaration of Article of part: Maryland are entitled Inhabitants of

“That the England . . to the . and Law the Common on English as existed such of the statutes benefit of Fourth day July, . . . ^[1776] . . . except such provisions of . . inconsistent with as . nevertheless, Constitution; subject, this repeal by, the of, or amendment revision . .” Legislature of State.. the framers intent of previously have considered the

We part law of this as adopting law the common 579, 582, A. Boone, Md. 2d In State. Lickle (1947),we noted: of the Constitution

“In 1776the framers part law of this as a adopted the common law Rights provision in the Declaration State. Maryland are entitled to inhabitants of ‘that mass England’ referred to the Law of Common England at that as existed law it the common Maryland either time, prevailed in as it portions except potentially, such practically spirit with thereof were inconsistent political the Constitution and the nature of our new 5; Rights, institutions. Md. Declaration of Art. Buchanan, State v. 5 Har. J. Am. & Dec. 534.”

418

Apparent previous from our XI-A discussion Article the Constitution is our underlying conclusion its purpose is counties, to share with the within well delineated limits, legislative formerly the powers to the reserved Assembly.5 General purpose substantially That would be by frustrated urged construction the landlords. The body English in common law referred to 5 of Article Rights undoubtedly many impinges Declaration of on areas recognized by Express now proper Powers Act as subjects legislation.6 Assembly local The General has the power to revise the power common law but local no to enact legislation delegated by within the Express area Powers to XI-A, If, Act charter home rule counties. Article 4.§ conversely, power charter home rule have counties power enact legislation, local no but revise the common law, legislation local which necessitated revision impossible. law indicated, purpose common would be As of home legislative power rule was to share the with the counties, extinguish not to diminish or it. The construction proposed landlords, obviously contrary so to the drafters, intent of rejected. the Constitutional must be We implicit grant power” think within the of “full to chartered counties grant contained 3 of Article XI-A is the § power formerly reserved Rights Declaration of alter, Legislature, revise, English State or amend the express granted. common law within To the grant by extent that such the Constitution is inconsistent Rights, with Article 5 of the Declaration of the Constitution — also, Moser, “County Sharing Legislative 5. See Home Rule the State’s Maryland Counties,” (1968). Power with Md. L. Rev. 327 6. The landlords concede that home rule counties “have for years they inevitably repealing, amending, revising Law,” been Common indeed they pass legislation. example, must if are to local For (X) specifically grants regulate zoning; local such 25A; regulation private property admittedly derogation right of the common law to use highest See, utility. Aspen as to so realize its Hill Venture Montgomery County, 303, 313-14, (1972). 265 Md. 289 A. 2d Greenhalgh approved (prohibiting ordinance which we racial clearly housing rentals) repealed discrimination sales and the common principles whereby property right law real had the owner of absolute pleased. rent sell to whomever he State, (1860); prevail. Baltimore 15 must v. Md. 376 (1865). Baker, 23 531 Anderson Md. authority, had the

We thus conclude that the Council powers granted by to it XI-A within the limits of Article Act, Express Chapter enact 93A and Powers In containing provisions derogation of the common law. so City have case of Genusa v. holding, we considered the (1928), upon Houston, App., 772 relied Tex. Civ. S.W.2d however, landlords; not, persuasive find we it by do init and to follow this State. decline

II. Chapter 93A Conflict Between and the Public General Laws of State court, in applying The lower the constitutional mandate of — any XI-A, in case of said Article “that conflict between §3 local law and Public Law now General or hereafter — the Public General Law shall control” enacted held provisions Chapter 93A were with State several conflict were, null, therefore, law and and void of no effect. concerning grounds provisions these were Invalidated on terms, retaliatory eviction, leases, two-year lease written by judgments confession. Constitution, XI-A, express language Article 3, application, however, unambiguous; proper is clear and its proved City has In Baltimore & often difficult. v. Sitnick Judge (1969), Md. A. 2d Firey, 254 Court, Finan, previous comprehensively for the reviewed our question between a local law decisions on of conflict XI-A, meaning public general a law within giving summary: this succinct opinions we

“A have cited distillation of the thought political a leaves residual may by what the prohibit State subdivision may permitted, general public law but it has expressly what has not prohibit the State way, general unless a permitted. Stated another right public express law contains denial authority, act prohibition local the State’s activity certain field impliedly does not guarantee that all activity other shall be free from local regulation such a situation the same opened field supplemental thus be local regulation.” Sitnick,

In we City, reasoned that Baltimore under the granted XI-A, it under Article “supplement” could wage Statewide minimum city law ordinance establishing wage minimum higher standards than those set legislation state and could within include ordinance exempted businesses from the state legislation. noted, 324-25, We Md. at 255 A. 2d at that: provisions

“In City none of the . .. law [found by the lower court to conflict with the State law] does it a wage authorize minimum which is lower provided by than law, the State nor does it any exempt employees included under the State law; we think this is crucial norm which must City be any used to regarding measure law conflict with the statute.” (and us, Sitnick,

'fhe many situation before unlike therein) cases discussed not does involve direct conflict regulatory scheme, inherent in case, dual a since in the instant County compre- Montgomery attempted has to hensively apartment regulate the rental business affairs, theory landlord-tenant but the has not. State The permissible “supplementation” of State law local is, therefore, inapposite. ordinance Manifestly, whether Chapter a conflict exists between 93A public general and the concerning property law only real can by reviewing provisions light determined of each in precedents. controlling

(a) Retaliatory Eviction Chapter provisions relating 93A three contains to 93A-26(o)requires the landlord retaliatory evictions: Section retaliatory will action be taken expressly that no to covenant rights against attempts enforce his under a tenant who law; and 93A-39 applicable Sections 93A-28 the lease or unlawful; 93A-39further creates action Section make such any (except eviction presumption that eviction rebuttable rent) non-payment within six months instituted following agency complaint the local a tenant’s retaliatory. 93A-26(o)was in conflict held that

The lower court § any However, public general law. it invalidated with §§ 93yL-28 “summary with the and 93A-39 as conflict Code, Maryland eviction” law contained Article 53 of the 93A-41, authorizing County and further decreed § Attorney preserve quo the status to institute civil action to during pendency complaint, of a “invalid to the extent (a) any in, purports permit that it or defense intervention brought any possessory provisions action under the (b) ; prohibit, enjoin, Article 53 ... action possessory otherwise interfere with such action.” summary repossession action for claimed to invalidate these is now contained 8-402(b).8 (1957, Vol.), Repl. Code It provides, essence, shall the District Court order premises restitution of if leased to the landlord it finds that tenant, receiving notice, after refused to vacate at expiration of the lease. heavily City landlords, relying upon Heubeck v. The (1954), 203, Baltimore, 107 A. 2d 99 maintain that 205 Md. law, permits 21, 8-402(b), general public expressly a

Article § Chapter 1972, major legislative coherently 8. 349 of the Acts of a effort to recodify property Maryland, repealed public restate and general the real law of laws which formed the basis of the lower court’s decision on retaliatory terms, eviction, leases, two-year written and and enacted substantially Maryland (1957, similar now codified in Code Repl. Vol.), appeal the lower 21. While the from court’s order technically January 1, repeal 1973, became under moot on the effective date of the Chapter 349, we, nevertheless, proceed to decide the issues on the See, existing Powell, 121, basis of the law. Yorkdale v. 237 Md. 205 A. 2d 269 (1964). motives, landlord, a after due

a whatever his to evict tenant lease; 93A, expiration Chapter a and the notice law, prohibits it be shown to be local such eviction where can that, therefore, retaliatory; a within the and conflict exists meaning Amendment and all sections of of the Home Rule retaliatory fall. Chapter dealing 93A with eviction must posited seeks to avoid the clear conflict Council landlords, accepting interpretation the landlord’s law, summary proffering a different eviction but 93A-39, interpretation Chapter 93A. 93A-28 and Sections maintains, merely exposing it create a “local cause of action” administrative, ultimately, and criminal landlord to sanctions if such eviction is later found the Commission legal right. of a to be retaliation for tenant’s exercise alternative, argues summary In the that the Council procedural eviction statute is conflict with a local citing City granting rights, law Warren v. substantive Philadelphia, 380, 115 Wagner v. 382 Pa. A. 2d 218 Council, Super. Mayor Municipal 42 N. J. 126 A. 2d (1956), grounds, 24 N. J. 132 A. 2d 794 rev’d on other (1957).Lastly, validity the Council seeks to bolster retaliatory provisions by reference*'to eviction 1, 1973, 8-213.1, July expressly Code Article effective County. retaliatory Montgomery prohibiting evictions substantially settled our was We think the issue invalidated Heubeck, supra. That case decision City provided that ordinance Baltimore rent control paid possession and long as a tenant remained so ordinance, a landlord permitted under the maximum rent premises even if possession of the recover could not seek to 210-11, expired. held, the lease had We there 205 Md. at 103: A. 2d at Law, applicable

“The Public to the entire General State, provides holding for the eviction of tenants terms, proper expiration if over at the of their given. . . . The Rent Control notice has been Ordinance, therefore, prohibits an action which the is, permits, Public General Law the eviction of upon expiration a tenant of his lease. Under the Rossberg 394, test laid down in the case Md. [111 (1909)] Levering 74 A. 581 and adhered in case, (1919)], 48, 106 Md. A. 176 there is a [134 conflict between the ordinance and Public General Law, two, and as between the the Public General prevails.. Law . .” persuaded

We are not to alter that conclusion the fact prohibition Chapter operates indirectly that the 93A circuitously. By making the action which the unlawful clearly permits, Public General Law this ordinance creates a meaning XI-A, 3, conflict within Article § purpose frustrates the the State law a to allow landlord repossession exception. without agree summary can that the statute is

Nor we eviction merely procedural. summary statute, The eviction has upon Maryland century, been force and relied for over a 18, Clubs, Inc., 244 Messall v. Merlands Md. A. 2d 627 procedural during has time some details, Darling Shaps Corp. Baltimore Center Delaware (1948), Corp., Stokes, 191Md. 60 A. 2d 669 Benton v. (1908), also, think,

Md. 71 A. 532 but it we insures the right It, therefore, remedy. a substantive to such cannot be reasoning implicit conflicting modified local law. This holding in our in Heubeck. contrary

Nor do we think that result is mandated 8-213.1, July 1, 1973, expressly effective § retaliatory Montgomery prohibiting County. evictions only Montgomery section, applicable County, That does modify summary purport to amend or eviction 8-204(b) procedure contained so as to obviate a conflict § between the latter section and the local ordinance.9

We, therefore, part affirm that of the lower court’s decree general invalidating public 93A-28 93A-39. Since the §§ them, grant legal interpreted laws as we have a landlord a validity 9. 8-213.1 is not before us and we make no comment thereon.

right evict, otherwise, in whether retaliation or County may require agree Therefore, not him to not to do so. 93A-26(o)is also invalid. §

(b) Two-Year Lease Terms 93A-26(b) 93A-27(c) require Sections that all leases Chapter entered into after the effective date of 93A be years, an offered for initial term of two at the tenant’s option, offering a unless reasonable cause exists for years. initial term other than two The lower court sections, noting opinion: invalidated these two its authorizing tenancy “We read Article 53 as at sufferance, tenancy specific periods will and at time, up years. tenancies to three This is permitted by Article 53. requirement judgment

In the Court’s here (b) making mandatory they subsection it period time, years, specific a offered for two is a a conflict of direct nature.” (now reading provisions

After a careful referred to 21, 8-402(b)(l), (4), (5), n. contained Article see § supra), disagree. provides procedure whereby we Article 21 may possession property a landlord recover leased “for definite term or at will.” It does not create different by types tenancies, merely recognizes but those created I, supra, alter common law. As noted Part the Council law with the law will common and conflict common proper legislation. local Unlike the invalidate otherwise Chapter retaliatory provisions, nothing in 93A eviction procedure conflicts with the established § 8-402(b), deprives anyone right of a intended to be nor public general something secured law. We think types more than the mere mention of different required to the intent of the leaseholds is show General beyond Assembly establish each of those tenancies regulation governments. further local (c) Written Leases invalid, conflicting with court also declared The lower 93A-26(a) requires that leases be law, which State the tenant at copy provided to duplicate and a executed court opinion, the lower Again, in our execution. the time of with the provision This conflict was correct. recently adopted Statute 2-101and 2-102of Art. §§ Frauds, provides: — by parol estates created 2-101 Certain

“Section at will. are estates freehold, or estates, or corporeal

“All leasehold by created made or incorporeal interests land party signed by the so writing and parol and not lawfully same, agent creating his making or and writing, have the force by shall authorized only, and shall at will or interests effect of estates taken to equity in law or be deemed not either greater effect.” force or have other or — exception. Three-year 2-102 “Section to leasehold applicable 2-101above is not “Section years three from exceeding the term of estates making thereof.” law, leases, are valid at common to us that oral It is clear general law and public by recognized permitted and in view of prohibited by Council may not be hence Heubeck, supra. Sitnick

(d) Due Judgment for Rent Confessed no shall “contain 93A-26(g)provides a lease Section The judgment rent due.” for confession of authorization with Article provision in conflict § court found lower by Code; is now controlled Maryland the matter 52 of the (MDR) Maryland 645.10 District Rule 1972, repealed the Code its Article 52 of Chapter Acts of 10. by by now covered court is entirety. provision the lower referred on the basis of the issue 645 and we decide Court Rule District latter, supra. see n. 8 by procedure which the clerk of the MDR 645 details the judgment by That confession. District Court enter authority by rule, in us 18A of pursuant vested § duly Constitution, approved was Article IV of the 28, 1971; subsequent adopted by this on June Court approved adopted on 645 were amendments to MDR May 8, procedure having “the clearly a rule of 1972. It is rescinded, changed law until or modified force of IV, Article 18A. See Appeals law.” Court or otherwise § Vol.), also, Maryland (1957,1973Repl. 25. Code equivalent MDR 645 is the We need not decide whether general meaning Rule public law within the Home is, Amendment, for, assuming arguendo that it we do not merely procedure perceive a That Rule details the conflict. judgment properly applicable when a confessed consented deprive nothing in the Rule to the defendant. We see right regulate the areas home rule counties of validly given. which such consent can be

III. Agency by Administrative Exercise of Judicial Power that the court was correct The landlords contend lower Chapter finding provisions of 93A unconstitutional certain body judicial powers in vesting an administrative as by IV, exclusively the to the courts of reserved § Maryland Constitution, provides pertinent part: in this State shall be vested

“The Judicial of Appeals, and such intermediate courts a Court of by by appeal, provided law the as shall be of Courts, Assembly, Orphans’ General Circuit City Baltimore, Courts, for the of such Courts Court; for, and a District are hereinafter Record,. . be of ..” all said Courts shall Courts found powers The conferred on the Commission IV, 1 were these: of Article lower court to be violative $1,000; (1) exceeding impose penalty not a civil (2) money award damages not exceeding $1,000; (3) payments award temporary for substitute

housing;

(4) leases; terminate

(5) repairs; to order

(6) to order the return security deposits and

rental paid.11 monies Commission, 11. as detailed enforcement 93A-9(c) 93A-43, are, pertinent part, as follows: §§ 93A-91C): empowered "The shall be to enforce the Commission means; through Chapter any appropriate of this (iii including imposition . . . of a civil but not limited to $1,000 any provision penalty, this against provided landlord or tenant. . . for the violation of excess (iii) damages Chapter, imposition money of an award of may benefit either as a landlord or tenant for the (ivi ordering Chapter, repairs oi .” action; Chapter tenancy 93A-43: Commission violation of or defective found. “(a) If, hearing, at the conclusion of the the Commission determines, upon preponderance record, of the evidence of Chapter tenancy violation of this has occurred or a defective exists, findings the Commission shall state its and issue an order. require respondent Such order shall to cease and desist from appropriate such unlawful conduct and to take such action as will purposes Chapter. effectuate the of this The order shall also contain a notice that if the Commission determines that respondent not, following days has after fifteen calendar order, service of the Commission’s made a bona fide effort to comply order, with the the Commission will refer the matter to the County Attorney for enforcement (b) Where the Commission finds that a landlord has caused a tenancy, defective all affected tenants be entitled to one or part following more or all or remedies as ordered Commission: (i) leases, immediate termination of their and return of their security deposits landlord from the already paid and all rental monies to the period the landlord was notified of the condition, obligations said and relief from and all future under the terms of the lease. Where the termination of a ordered, dwelling lease is unit shall be vacated within a period reasonable of timé. (ii) damages paid by an award of to be the landlord sustained as a tenancy, damages result being of the defective such damage determined as the actual or loss. In the case of loss services, damage proportionate such shall be amenity damages persons In property, lost. the case to or powers that these are not

The Council contends powers Courts, adjudicatory are reserved the but rather to constitutionally can be quasi-judicial functions which agency. The be- delegated an difference to administrative position and that of the landlords is the Council tween the one; go concepts mere it involves that than a semantic more developing law of to the essence of the still administrative agencies. — ie., precise

Seldom has the issue before us now adjudicatory can, which within the limits of Maryland Constitution, be on an administrative conferred — Ryan Solvuca v. agency In adjudicated been this State. Co., & (1917), Reilly upheld Md. A. 710 we newly Compensation Act. The then enacted Workmen’s Act a to hold basic scheme created commission compel hearings, appearance with to (enforceable by production witnesses and of documents Court) compensation injured the Circuit and determine for damages exceed One Thousand for shall not award an ($1(100.00) dwelling per unit. affected Dollars (iiii equivalent by paid a rea- the landlord amount be an temporary adequate expenditure substi- obtain sonable housing in the area. rental tute (c) has a tenant finds Where the Commission may tenancy, be entitled the landlord a defective caused following part remedies more or all or to as or one by the Commission: ordered (ii immediately may the lease terminate landlord possession with gain accordance Annotated Code provisions of Article 53 the landlord Maryland. available to remedies Other provided State law. asbe shall (iii paid damages the tenant be award a as result of defective landlord sustained the tenancy, actual damages being determined such exceeding One damage not loss but or ($1,000.00) with credit Dollars Thousand may damages been deducted any have money damages Any security deposit. award of from thirty days paid within this section under the landlord award enforced such from tenant of any granted in court award was to whom the competent jurisdiction, such court plus judgment grant monies for such authorized To the award.” from date of interest

429 according circumstances to the workmen certain schedule required Employers were to secure the contained the Act. Act, payment compensation, provided in one of (!) fund; ways: by insuring through the state accident three (3) insuring through company; an authorized insurance satisfactory furnishing proof ability the commission with pay compensation depositing such a sufficient Appeal was allowed amount with the commission. finding Appeals. In

circuit courts and then to Court of no constitutionally impermissible delegation judicial power, Co., quoted Borgnis approval from v. Falk 147 we with Wis. 327, (1911): 358, 209, 133N. W. administering

“. . . Commission [the Compensation is an administra- Workmen’s law] government, which in body or arm of tive empow- of a law is of its administration the course ap- questions of fact and some ered to ascertain thereto, doing existing so acts ply law thereby quasi-judicially; it but is not vested with judicial power in the sense.” constitutional adopted position, holding, 284, We then a similar 131 Md. at 101A. at 716: Law, Compensation which was

“The Workmen’s police power of this passed in the exercise of State, known as the State a commission creates to administer the Commission Industrial Accident discharge its duties In the Act. exertion, required to powers it is of its and the discretion, apply and to judgment and exercise case, it is particular but in each law to the facts Legislature never intended clear Court, or to confer the Commission constitute the State within upon it the provision referred to". meaning constitutional 309, (1925), Cunningham, Md. 129 A. 654 In Mattare holding we reiterated our in Solvuca that the Workmen’s Compensation IV, Act did not violate Article further noting that the Commission created thereunder had no power to enforce its awards.

Subsequent challenges cases have involved less direct power, by exercise of administrative questioning the consequences which granting “quasi judicial” flow from powers to various In boards. Dal Maso v. Board County Commissioners, (1943), 182 Md. 34 A. 2d in the deciding course of Montgomery the actions of the County sitting Council, Commissioners as the District were judicata, not res we noted:

“There is some confusion as to the nature and boards, character of these administrative and there many opinions are and text writers who refer to quasi-judicial. They facts, them as do hear them, decisions, based on but those decisions make judgments are findings, or decrees. If their resolutions, ignored, they or orders are resisted or must call on the courts to enforce them. Administrative boards and officials are arms and Legislature, instrumentalities of the and are not judicial all; they belong at to and derive all their authority legislative from the branch under our government. State, judicial form of In this all only authority such as is for Article 4 Maryland Constitution, and it has been only judicial decided that functions can be exercised authority , which find their in that . . . Article coming that no court not within its can be established in any power this State. This forbids Legislature in the to clothe administrative boards judicial any authority. may There states wifh which it can be done, but is not one of them.” subsequent tempered Dal

Cases Maso have but not 271, 277, holding. Crook, overruled that In Hecht v. Md. 184 431 Maso, (1945), years after Dal 673, decided two 675 40 A. 2d we said: pointed case of Dal out the recent

“This court 's, 200, 464, 182Md. 34 A. 2d County Comm Maso v. [(quasi judicial)] does not latter term Legislature to clothe

imply power authority. judicial boards with administrative Nevertheless, innumerable fact remains that today, by boards are decided controversies creation, legislative character judicial scope traditionally within the fell inquiry.” 73, 379, Cobb, noted 45 A. 2d Md.

Heaps v. in a vein: similar general be said to boards

“Administrative they have insofar as capacity quasi judicial in a act and, on based facts determine duty hear and however, them, boards, . . the . make decisions. authority, which the with clothed are not them, upon confer legislature has no Board, etc., Constitution; Dal Maso 4, Md. decisions, when and their A. 2d Md. rights, are not property they impair personal or authority legislature is without The irreviewable. government of of the judicial branch to divest of the actions review inherent its illegal arbitrary, shown to boards administrative property personal or impair and to capricious, or without are likewise rights; courts but exercise with authority interfere limits, prerogative within constitutional legislative exercise of administrative lawful with the authority discretion.” in Schultze the court These and cases led other tí 76, 80, Board, 185 County Planning 230 Md.

Montgomery í> Planning Board’s 502, 504 to conclude that 2d 432 determining exercising

duties of facts necessitated its a function, quasi-judicial “Many and to note: cases since Dal Comm’rs, 200, County (1943), v.Maso 182 Md. 34 A. 2d 464 notwithstanding anything have made it clear that therein said, administrative bodies or officers exercise such holding power.” approved in Hyson Schultze was 55, 64, Montgomery County Council, 578, Md. A. 2d (1966), identifying quasi-judicial 584-85 case resolv[ing] disputed questions function as . . (as adjudicative contradistinguished legislative facts from action) judicial concerning particular parties.” By facts or time of Public Service Commission v. Hahn Inc., 571, Transportation, (1969), 253 Md. 253 A. 2d 845 we no longer necessary distinguish Maso, saying found it Dal at 253Md. at 253 A. 2d at 850: “Beyond question the Public Commission Service quasi-judicial functions when on a record exercises it, consisting pleadings, . exhibits . . before testimony may undergo judicial later scrutiny, arguments it must after oral and written adjudicative determine facts and choose the applicable produce law decision.” IV, gradual the tension between Article This relaxation of has practical exigencies of administrative bodies and the authority in largely justified by ultimate been reservation of Co., Fidelity Trust 202 Md. the courts. In Burke v. (1953), 187-89, rejected we the contention 96 A. 2d Commissioner, empowered certain bank the Bank binding dissenting mergers a final and valuation of to effect (a previously reserved to the function stockholders’ shares thereby power. courts), judicial with We there vested was compulsory noted: “The substitution arbitration beyond is not valuation review for administrative long as there legislature, so power of the the constitutional legality and pass review to on opportunity for court fully theory is more aspects award.” This process due development of administrative explained in the historical Judge Hammond eloquently articulated Chief law so National Bureau Commissioner v. State Insurance 298-300, A. 2d Underwriters, 248 Md. Casualty (1967): 285-87 governmental days of the exercise

“In the earlier bodies, was there powers administrative delegating widespread fear powers or administrative, legislative and only violated single agency not functions to spelled its death powers theory separation of but against rise of resentment knell. Emotional judges lawyers rose administrative destroy this or efforts to thwart and resulted government by invoking branch of fourth veritable theory using the separation of requiring a full and nondelegation doctrine or These judicial determination. complete de novo plaintiff had the than no more success efforts had The Sea. King versus Canute in the case steadily state, continued Legislatures, national and agencies administrative increase Davis, Law power, 1 Administrative administrative agencies (1958), have and as these 1.01 Treatise § legislate more than they have proliferated come to courts. 1 adjudicate more than legislatures and to (1965), Law, pp. 1-2 Cooper, Administrative State says: the author sixty many states, as

‘In several rules and agencies make independent seventy affecting in varied cases adjudicate contested labor, fortunes, safety, health, lives, ways the aAt citizens. of millions the business 1965], than more estimate [as conservative agencies are administrative 2000 state ” judicial functions.’ exercising legislative and Judge pinpointed Hammond then the essential concern of those power disturbed delegated to administrative agencies: early

“The fears of the bar and bench largely have disappeared experience. with apparent It became complex problems that social, of modern economic and industrial life for ever-increasing knowledgeable numbers of people could be solved or expeditiously, settled effectively, more cheaply and simply by processes administrative than executive, legislative traditional judicial processes, blending because the powers of in one agency, operates particular in its field or continuously specialty years produces over the expertise superior ability and a correctly both specialized evaluate questions supply and to correct — questions answers to these largely often due permanent, the staff expert employees who serve agencies; under the successive heads of the secondly, it recognized was dangers that government by inherent administrative bodies blending lie not in the single body in a permitting body’s but in power beyond that to be check or review.

The power checks on administrative have been supplied. Davis, op. 1.09, pp. 68-69,says cit. that in the establishment and control of administrative agencies in recent decades:

‘* * * principle guided that has us is the principle check, principle separation powers. We have had little or no avoiding concern a mixture of three or more power in agency; kinds of the same we have had much avoiding more concern for minimizing power. very unchecked identifying badge of the modern admin- agency has become the istrative combination legisla- (adjudication) power with (rule making). we have taken power But tive agencies report to and pains to see that bodies, legislative our funds from draw their ap- agencies are personnel of the executive, and reappointed by the pointed and check remains the residual ” judiciary.’ response to of Court Judge then noted the Hammond by administrative quasi-judicial power the exercise of agencies: their to exercise been alert

“The courts have improper exercises of power to restrain residual powers judicial or whether administrative legislature has not If legislative in nature. the review, will judicial a court expressly prevent powers to ordinarily inherent utilize its arbitrary capricious unreasonable, illegal, or Cobb, Heaps 185 Md. In v. action. administrative legislature 372, 379, is without said: ‘The this Court judicial of authority branch divest government actions its to review inherent arbitrary, to be boards shown administrative impair personal or illegal capricious, and or * * quoted opinion property rights; and then Crook, v. Md. 280: in Hecht through power, have the inherent ‘Courts otherwise, by injunction, mandamus, writ of arbitrary, abuses of discretion to correct acts; but in illegal, capricious or unreasonable not exercising power care must be taken that legislative prerogative, or with the interfere administrative with the exercise sound ” ** discretion Relying upon the State Insurance the clear rationale of Montgomery case, contends Commissioner Council County properly well-being determined that of all its citizens would best be served an administrative forum which, regulates apartment within certain limits rental relationships business and landlord-tenant within the County. recognized, asserts, It was the Council problems currently existing in the field within could precise language employed in State us Insurance Commissioner, “be expeditiously, solved settled more effectively, cheaply simply by processes administrative executive, than traditional legislative processes, blending agency. because the in one . . produces expertise superior ability correctly an and a both specialized questions supply evaluate and to correct answers . .”. 248 Md. at 236 A. 2d at 286. The constitutional separation powers is, doctrine generally speaking, applicable government, George’s to local Barranca Prince County, 264 Md. A. 2d 286 and as the indicate, cases now the existence of that doctrine delegation does not itself inhibit the administrative agency of a legislative powers blend executive or with powers judicial nature; determining is not factor so specific powers granted much to the administrative agency, relationship but rather the the of courts to the Davis, power. exercise of that See Administrative Law 2.13 § (1970 Brown, Supp.); “Administrative Commissions the Power,” (1935); Judicial 19 Minn. L. Rev. 261 1 Am. Jur. 2d (1962). Administrative Law 154§ Despite preservation judicial powers the of in the courts through “theory checks,” by adopted the this Court in case, the State Insurance Commissioner the landlords delegated judicial contend that the Commission has been power expressly provided to effect the remedies in the Act. (1) They refer judicial power: to five factors as indicia of power determination; to make a final rather than an initial (2) (3) power binding judgments; make to power personal property rights private (4) affect the or persons; power formerly by court; the exercise of held fashioning judicial remedies which are nature. objections,

As to the first of these it is clear that the final, always open but Commission’s determinations are not by judicial aggrieved party. In Johnstown Coal review an 467, 472-74, Dishong, 84 A. 2d & Coke Co. v. 198 Md.

(1951), questions that. . . we held that law is settled “[t]he finally by determined an administrative fact power agency” long so as the retain their inherent courts sufficiency support such factual assess the of evidence to actions of administrative conclusions and to review the arbitrary, agencies illegal, unreasonable or which which are rights. Clearly, impair personal property with the noted, exception hereinafter Chapter under the

review 93A are sufficient Dishong standard.12

Second, the Commission does not make “binding judgments” strictly judicial power, kind that denote see, 1 Am. (1962); Jur. 2d Administrative Law §§ power compliance Commission has no to force with its action, by County Attorney orders. Court instituted parties Commission, always required. before the is Third, obviously while the power Commission has the property rights affect private persons, both landlords and tenants, delegated such is on the basis of the declared public interest in relationships. landlord-tenant 1 Am. Jur. (1962). 2d Administrative Law 171 Section 93A-1 contains legislative finding public interest similar to that justified procedure the initiation anof administrative (the affecting rights private employers employees Act) Compensation approved Workmen’s us in Branch v. Co., Indemnity supra. Insurance

Fourth, procedure the fact that the administrative created by Chapter permits agency adjudicate 93A some formerly matters decided the courts is not determinative. Indeed, approved this was in effect the situation us provision appeal final 12. That no made for a de novo trial on from the deprivation right a to a action of the Commission does not constitute Maryland. jury trial in See Branch violation of the Constitution Stein, Indemnity Co., 482, 144 (1929) and Petillo v. Insurance 156 Md. A. 696 509, 160 644, (1945); Co., 184 42 v. Penn. R. 162 Md. A. Md. A. 2d 675 Thomas (1932). 793 438 Co., Fidelity supra,

Burke v. Trust Ryan Solvuca v. & Co., Reilly supra, powers granted and is consistent with agencies functioning innumerable administrative in this State.

Fifth, strenuously pressed by landlords, and most is the asserted fact remedies entrusted exclusively are Commission’s discretion remedies reserved decisions, with courts. Consistent our hereinbefore set forth, power remedies, think we to fashion such viewed Chapter 93A, properly context more classified as quasi-judicial, or as in Hyson Montgomery described Council, supra, 62, County 242 Md. at 217 A. 2d at purely completely nature, judicial... “not but havfing] qualities resembling incidents . . . [such power].” jurisdictions recognized

Courts other have agencies, they effectively administrative if are to fulfill the created, purposes they may constitutionally for which were powers. be vested with broad remedial In Jackson v. Concord Co., 113, 126, (1969), J. involving 54 N. A. 2d 800 charged agency administrative with enforcement of the law, State’s antidiscrimination the court sustained the agency’s compensatory damages award of for the economic person stating: loss suffered against, discriminated “Initially, may that, say we at this advanced date in law, development of administrative we see no objection legislative

constitutional authorization agency, award, anto administrative as incidental delegable subject it, relief with a connection money damages, ultimate review thereof being available.”

In Against Massachusetts Commission Discrimination v. Franzaroli, (1970), statutory Mass. N.E.2d provision in an approved antidiscrimination law was empowered agency the administrative award damages exceeding $1,000 expenses for the complainant incurred obtaining housing storage for space, alternative for goods effects, moving actually and for other costs

439 effect, 4 Joyce, incurred him. To like see Williams v. Or. 482, App. P. 2d 513 and 479 Zahorian v. Russell Fitt (1973). 399, Agency, Real Estate 62 301 A. N. J. 2d 754 In (1971), Bergeron, State v. 290 Minn. 187 N.W.2d 680 approved compelled court an order administrative property cancellation a transfer made violation of required the State’s antidiscrimination statute and that the property complainant. be offered for sale to the Hollis, Supreme Washington, Rody Court of 81 Wash. (1972),upheld 2d 500 an P. 2d 97 administrative award of transaction; damages housing for discrimination a granting approving the to fix administrative discretion up $1,000, the amount the award to court said: can, should, "All and be is that done to define the sought punished, injury be conduct to or the to be acceptable normally compensated, set out punishment compensation, limits and then or body adjudicative allow to determine* appropriate compensation by punishment applying general morality principles of 100). (500 concepts justice.” traditional P. 2d at Agency, App. In Ford v. Environmental Protection 9 Ill. 3d (1973), approved the court an order of N.E.2d assessing $1,000 penalty Board a civil Pollution Control disposal found be refuse site against of a solid the owner There, agency. and the rules in violation of statute monetary penalties impose such Board to law' authorized the argument that the $10,000. rejecting In not to exceed power penalty judicial a a civil was impose such agency, upon an administrative be conferred which could not administrative stated, N.E.2d at 544 “an court offending may penalize, agency without officer penal is incidental when the function constitution administering The court said: duty the law.” legislative judicial essentially “Although the implicit we believe it powers delegated, cannot immediate that where direct or the authorities impractical, inexpedient or action quasi-judicial upon functions be conferred agency, exercised provided administrative conferring laws complete such are in their content; designed general are public serve purpose; require are such consistent and administration; immediate and further all subject administrative actions are (292 543-44). judicial review.” N.E.2d at impositions penalties While administrative of civil are commonplace within government the State and Federal (see Davis, Law, structures 1 (1959), Administrative 2.13 § Supplement thereto, cited) 1970 and cases not all states agree agencies may constitutionally that administrative be empowered impose monetary penalties to civil for violations of See, law of the agency. rules of the example, for State Vines, 486, ex rel. Lanier v. 274 N. C. 164 S.E.2d 161 holding unconstitutional, delegation as a power, of authority vested the Commissioner of Insurance to monetary determine the amount of a civil penalty; and Monaghan, 239, 117 Broadhead v. 238 (1960), Miss. 2d So. 881 holding that in legislative of a standard, absence definite an agency administrative constitutionally could not discretionary vested with power impose delinquency a tax penalty of not less than 10% nor more than 25% of the delinquent Compare amount. Wycoff Co. v. Public Service Commission, (1962), 13 Utah 2d 369 P. 2d upholding 283 the imposition penalty a civil assessed the Public Service authorizing penalty Commission under statute $2,000 not less than nor more than statutory $500 for each Law, 1 violation. See also Am. Jur. 2d Administrative 173.13 grant

We think the of remedial to the Commission money to award damages, leases, repairs terminate order and security deposits the return of paid, rental monies power adjudication guilt 13. The to determine or innocence in criminal constitutionally upon agencies cases cannot be conferred administrative special procedural protection because the criminal defendant is entitled to given proceedings proceedings of a in civil or in before kind not court Helvering Mitchell, agencies. administrative 303 U. S. 58 S. Ct. (1938). 82 L. Ed. housing temporary to award funds substitute does judicial power delegation invalid not constitute an to an agency in violation of administrative granting powers, these we As to the are Constitution. “(T)he agreement with the Council’s observation full point determining permissible pivotal extent of delegable adjudicatory merely not their functions is inherent regulatory but the context scheme nature provided by procedure enforcement administrative plain process.” it function of VVethink power primarily and the is administrative Commission involving in it hear and determine controversies vested granted only is incident its landlords and tenants words, duty; in other the Commission’s administrative questions legal rights primarily is decide function merely incidental, private parties, although between but reasonably necessary, regulatory powers. to its See Am. 160. Jur. 2d Law Administrative § 93A-9(c) vested the Commission by imposing penalty of the Act a civil

enforce $1,000 any provision exceeding “for violation of of the power Chapter” than to is far more elastic its award this money damages for actual loss to landlord or tenant finding of a suffered reason of the Commission’s Indeed, readily apparent that tenancy. is the defective it unrestricted, fixing in unbridled discretion has Commission limits, up $1,000 penalty, broad to amount the within the of regard gravity the without to the nature or of violation. authority impose a we that to civil While conclude the beyond monetary penalty is not a constitutional delegation agency, we think the an administrative to in to fix amount of the vested the Commission the discretion up $1,000, any for of penalty any in amount violation the to legislative safeguards Act, any or in the absence total of discretion, exercising in its constitutes guide to it standards delegation legislative and otherwise an invalid of process requirements. due of See Theatrical violates law involving (1942), Brennan, 377, Md. 24 A. 2d 911 Corp. 180 v. holding types of prohibited of various a statute which the City paying public entertainment in Baltimore without first Commissioner; as set a fee between Police $5 $100 provide held invalid it did not we there the statute because discretion, any there standard to the Commissioner’s control nothing types public being in nature of the of various guidance provide meaningful entertainment alleged reviewing of abuses of his Commissioner a means Cohen, Maryland Aspects discretion. See Some recognize, Law, 1, 24 Md. L. Rev. 6-7. We Administrative liberality course, greater that the cases is toward in trend of grants officials, permitting discretion to administrative public safety, particularly the fields of health and order complexity to facilitate administration laws as governmental and economic conditions increase. Marek v. (1958); Appeals, 218 Md. 146 A. 2d 875 Board of (1956); Barnes, Md. v. 121 A. 2d 816 Pressman Health, A. 207 Md. 2d Givner Commissioner of (1954). complete We here that because of the lack of hold legislative standards, grant any safeguards or penalties fix civil unlimited discretion to the Commission to $1,000 illegal. meaningful judicial up amount No penalties assessment of such review Commission’s appear possible light of the unrestricted nature would sought In discretion to be vested Commission. connection, we review of final actions of note by “appeal Court the Commission shall be Circuit Montgomery County in Rules accordance with such 93A-25 Procedure for a review of action.” §§ Undoubtedly, contemplated review the Council 93A-45. final action in accordance with of the Commission’s would be B, Chapter Maryland Rules, regulating 1100 of the Subtitle authorizing agencies, appeals from administrative “affirm, modify appealed from, reverse or the action court agency proceedings, case for further remand the by appeal law.” as now or hereafter dismiss explicitly Act Rules B12. While neither the nor the Rule applied reviewing specify the test substantive determinations, agency and the Administrative Procedure 244-256A, Code, is (APA), Maryland Article Act §§

443 agencies, county applicable administrative its terms 2d Mobile, Md. 272 A. Civic v. Urbana Urbana that the standard of intended (1971), we think the Council (g) contained with that judicial review be reconciled § inclusive, County Fed. L. v. APA. See S. & (l)-(5), of the (1971). 2d 363 Section L., 274 A. 261 Md. Equitable &S. provides: pertinent, 255(g), insofar agency decision of affirm the

“The court or it proceedings; for further remand the case or if modify the decision may reverse or may have been rights petitioners of the substantial findings, because the administrative prejudiced inferences, conclusions, are: or decisions (1) provisions; or In violation of constitutional (2) statutory authority or In excess of agency; or

jurisdiction of the (3) procedure; upon or Made unlawful (4) law; error of Affected other material, by competent, Unsupported entire in view of the evidence

substantial submitted;. . .” . record as exception power to that, with the Conclude

We thus powers monetary penalties, all the remedial impose civil legal and Chapter are 93A in the Commission vested constitutional.14

IV.

Due Process

(a) Hearing 6, 1972, voided court, by of October § its order The lower give unnecessary conclusion, detailed we find it In our view of 14. position since the Act does not alternate consideration to the Council’s create a ‘'court of Maryland IV, contemplation record” within the quasi-judicial Constitution, delegation judicial We think the in no event be unconstitutional. could the Commission argument, face, completely merit since all without its is designated on provision of the in the cited vested Constitution. the courts 93A-24(c) provided which that in the event the Executive revoked, suspended operate Director denied or a license facility, aggrieved party rental appeal could to the Affairs, Commission on Landlord-Tenant and further upon appeal, that such Commission hold a hearing. Relying upon Commission, Albert v. Public Service (1956), 209 Md. 120 A. 2d 346 the lower court voided § 93A-24(c), provisions, noting: and related requirements

“The Court considers that procedural process due are violated this section of the statute. We important consider that it is an element of law our that there be afforded procedural process due with connection involving, revocation of a license in this case a property right; namely, right of the landlord to operate apartment facility.” an By 17, 1972, the court’s further order of October made after parties’ stipulation severability, consideration of the as to it Chapter was decreed that III (“Licensing Article 93A Facilities”) entirety, Rental was licensing void its “the procedures wholly and functions being contained therein provisions ineffective without of Section 93A-24” previously the court declared void.

Subsequent order, prior to the lower court’s to the briefing appeal, Chapter amended, of this 93A was effective Among November 1972. amended was § 93A-24(c); amended, provides upon as the section now appeal Commission, from the Executive Director to hearing “the Commission shall conduct at which time an opportunity given person be heard shall be to the aggrieved.” is, course, change well after

It settled that “a the law a decision final appellate below before decision applied by Court will be that Court unless vested or accrued rights substantive would be disturbed unless legislature contrary shows a intent.” Powell, Yorkdale v. (1964). 93A-24(c), amended, Md. 205 A. 2d 269 Section making right hearing absolute, to a and not comports Commission, fully with discretionary with the make no requirements. The landlords process due procedural accordingly, we shall vacate contrary, and contention invalidating III decree court’s part the lower entirety. in its

(b) Right Entry Landlord’s 93A-26(s) The landlords contend that is void as an § arbitrary, capricious police and unreasonable exercise of the power. requires That section that a lease: provision requiring

“contain a that the landlord right any unit, exercise his dwelling to access to tenant, after due notice to the and without objection tenant, from the in order to make necessary repairs, decorations, alterations, or improvements, supply only by services mutual agreement during except normal business in hours emergency; dwelling an to exhibit unit prospective purchasers, mortgagees, or tenants only during hours, including normal business weekends, except may agreed upon as otherwise parties; providing nothing and that in this prevent entering subsection shall the landlord from premises in emergency or, leased an situation notice, good after due when the landlord has cause damaged to believe the tenant have premises may Chapter.” be in violation this section, and, The lower court refused to invalidate this in its opinion, provision noted that it did not consider the arbitrary capricious. and Nor do we. objection appears

The landlords’ to the section to be that they emergency should not be forced to wait until conditions entering apartment necessary exist before to make repairs tenant; without the consent that a inspections, landlord should be able make routine whether damage or not he has cause to believe has been done or Chapter that violations of 93A exist. properly are more objections landlords 93A-26(s) legislative body. The wisdom of

addressed to the § concern, we find not, course, a matter of our on the nothing requiring its invalidation in the section arbitrary capricious. ground it is vacated; remanded case

Decree entry decree for opinion; with consistent paid by the to be costs one-half Mont- County Council County and gomery one-half Funding Corporation Investors al. et Barnes, dissenting J., concurring part part: majority opinion I most of and concur

I with concur declaring unconstitutional result however, 93A-9(c) dissent, regard I Act. constitutionality sustaining by majority the of the of § (ii) (b)(i) providing when and that the Commission 93A-43 tenancy, has a defective the finds that a landlord caused may following be to the remedies: affected tenants entitled leases; (b) (a) of their the return the immediate termination deposits paid and security and rental of their certain monies obligations under the the relief ail future terms of from (not $1,000.00) lease; damages exceeding (c) an award of and landlord, against a result sustained as of the defective the loss; tenancy, damages being as determined the actual of the right by giving 93A-43(b)(iii) the tenants the to an award § paid by an the of amount to be the landlord Commission expenditure adequate equivalent reasonable to obtain to a housing area; 93A-43(c)(i) in of and temporary rental § (ii) rights giving of termination to landlords and similar tenants; and, 93A-26(b) damages against amount of §§ by 93A-27(c) requiring and that all leases offered years option at the of the landlord an initial term of two for tenant, exists for an initial term unless a reasonable cause years. other than two regard

I also dissent in majority in the dictum opinion indicating provisions that certain Act, Administrative Procedure Article Sections 244-256A (APA) are, by applicable Act, appeals construction of from the Commission to the courts.

My (1) provisions reasons dissent for are that the of § 93A-43(b)(i),(ii) (iii) 93A-43(c)(i) (ii) attempt and and and judicial powers upon confer and functions the Commission in IV, Maryland violation of Article Section 1 of the Rights Article Constitution and 8 of Declaration of Constitution; (2) provisions 93A-26(b) that that the and § 93A-27(c) beyond are Commission to § adopt under Article XI-A of the Constitution Express Act, (1957, Repl. Powers inasmuch as Code Vol.) 8-402(b)(l), (4) (5) permits Section leases year as well year, term as from month to for definite month, permitted and week to week so such leases are general a public law of State and not be light public holding abolished local law our Mayor City Firey, & Council Baltimore v. Sitnick & (3) that, (1969); Md. 255 A. in regard 2d to the relating appeals dictum to criteria for derived APA., provision construction from the there in the Act is.no authorizing justifying which, dictum, my opinion, represents “judicial legislation” aggravated in an form and violates the of Article 8 of the Declaration of Rights I Constitution. am also opinion 93A-9(c) regard imposition of a penalty exceeding $1,000.00 punishment “civil” for violation of the isAct unconstitutional several reasons upon by majority. addition to that relied Delegation Judicial Powers of difficulty Much majority opinion regard of with the in delegation judicial powers to the of and functions to the Commission, opinions as well as with several of the of this subsequent Court decided to Dal County Maso Board of George’s County, Prince 200, Commissioners 182 Md. of A. (1943), 2d 464 appreciate fully results from a failure to unique legal position Maryland unusual and almost occupies, as delegation judicial powers so far of concerned, provisions functions is as a result of relevant of Maryland Constitution.1 Because of these provisions, opinions constitutional all of the of federal courts, substantially opinions all of the of the courts our of (except sister states those possibly of New Mexico and those Carolina) of North opinions Davis, and even of Professor himself, applicable persuasive are not even in this State. provisions present

One of the relevant of Constitution IV, provides: is Article Section which power “The Judicial of this State shall be vested Appeals, in a Court and such intermediate courts appeal, provided by as shall be law Assembly, Courts, General Orphans’ Circuit Courts, City Baltimore, such Courts for the provided for, are hereinafter Court; and District all Record, said shall be Courts Courts and each shall a seal have to be used in the authentication of process issuing all therefrom.” was, form, provision in This similar included as Article IV, Section 1 of Constitution of which stated:

“The of this State shall be vested appeals, in courts, in court circuit such city courts for of Baltimore as prescribed, justices and in hereinafter peace.” comparable provision

There was no the Constitution of subsequent Constitution, 1776 and amendments although powers separation was for as indicated later. only regard separation 1. The constitutional delegation judicial provisions comparable which are regard appear

constitutional Mexico to be those the New Mechem, 63 N. Constitution. See State v. M. 316 P. 2d 1069 (1957),infra. 1864, provision of the In the the Constitution judicial power being regard in of 1851 vested Constitution continued, was some in courts with the enumerated regard process to a court seal and the and embellishment in justices peace. amplified of the This official character of provision was in identical 1864Constitution continued IV, present Section of Constitution words Article 1867,and reads: power shall be vested

“The of this State Judicial Courts, Orphans’ Appeals, in a Court of Circuit City Courts, of Baltimore as are such Courts for Peace; for, and Justices of hereinafter Record, and each be Courts of all Courts shall said used in the authentication of shall have a seal to be issuing process The process therefrom. and all be Justices of the Peace shall official character of practiced as hath heretofore been authenticated State, may prescribed by be Law.” this hereafter IV, present 1 of the Two amendments Section adoption of since the Constitution have occurred bywas Laws The first amendment of 1867. Constitution 8, 10, 1966, by November ratified the electorate on Ch. language 1966, intermediate which added the “and such provided by by appeal, law the General as shall courts by was the Laws of Assembly.” second amendment 3, 1970. Ch. ratified the electorate on November eliminated the words “Justices This last amendment Peace,” “a Court” and the words District substituted regard process last sentence eliminated the Peace, giving thus of Justices official character IV, 1, first present provisions of Article Section State the quoted. vesting theory is thus seen that the

It designated has courts continued exclusively 1851 to adoption of the Constitution of explicitly since the electorate on present last confirmed time and was short, years ago. In 3, 1970, some three November meaningful current, viable, theory express provision is Indeed, no means ambivalent. we indicated Maryland Representation Tawes, Committee Fair 412, 425-26, 180 228Md. (1962): A. 2d

“Section 1 of Article IV of judicial power Constitution vests the of the in State Judiciary, the and encompasses judicial this all the power the (Emphasis of State.” in opinion.) Maryland It is also clear in judicial power is separate legislative from the powers executive and and that agencies no officials or of those other branches exercise judicial powers.

Article 8 Rights of the present Declaration of Maryland (not Constitution referred majority opinion) provides: Legislative,

“That Executive and Judicial powers ought of Government separate to be forever other; and distinct from each person no exercising the Departments one said functions of of ” discharge shall assume or any duties other. of (Emphasis supplied.) In 1776, the Constitution of VI Article of the Declaration Rights merely of sets forth the provision more usual regard separation powers: of legislative,

“That judicial executive and government, ought separate to be forever and distinct from each other.” In 1851, provision Constitution of in the Constitution of 1776 was continued as Article 6 of the Rights. However, Declaration of the vital and effective clause, person exercising “and no the functions of one of said Departments discharge shall assume duties other,” was sum, then added to 6. Article In what was hortatory the Constitution of 1776 was made mandatory provisions the clause added effective provision Constitution of 1851. This in the Declaration of Rights in the 1851 been Constitution has continued without (Article 8 of of 1864 change in both the Constitution present Constitution Rights Declaration Rights, providing as the Declaration Article as already set forth. I in the have not found Constitutions our — than in New Mexico and there are none

sister states other — confining specifically all the federal constitution forbidding persons judicial enumerated courts and legislative exercising of the executive or the functions government exercising judicial branches of from functions. wonder, therefore, Maso, supra, Dal It small is Court, Judge Sloan, stated: for a unanimous Chief only State, judicial authority is such “In this all 4 of the provided for Article only Constitution, and it has been decided that find their be exercised which functions can Sheriff, Md. authority (Day v. in that Walls, 602; 169 Md. Humphreys 159 A. Wilson, 11, A. 735; Md. 194 Quenstedt A. v. 173 181 624, 233), Hewes, 118 A. and 354; Md. 86 Levin v. coming provisions can no within its court any power in State. This forbids

be established administrative boards Legislature in to clothe the authority. in There he with states done, one it he hut is not which can of ” them,. 205, supplied.) 34 A. (Emphasis 182 Md. at 466. 2d at it, possible in

Indeed, I is other see there no conclusion express unambiguous view the and constitutional of in of IV, in 1 and Article 8 the provisions Article Section present Rights the Constitution. Declaration of “subsequent to Dal majority The indicates that cases Maso holding.” (Emphasis tempered have but not overruled however, opinion Court, so supplied.) No of this has opinion majority in “tempered” the it as has the the present case. “tempering” has the addition of the been device for by a “judicial,” connected prefix “quasi” to the word

452 hyphen, and, behold, mandatory unambiguous two and provisions in Maryland Constitution, as well as the holding Maso, “tempered” or, in put it, Dal are Ias would “gravely impaired.” glad, I however, holding am that the in Dal majority, would, Maso not overruled indeed, doing. However, taken I difficulty have some confess in foreseeing in holding a situation which the in Dal Maso will But, day be effectuated. “Sufficient unto the is the evil (Mat. 6:34) thereof.” doubt, No such situations will arise hopefully holding the future and will Dal Maso render attempts delegate judicial ineffective future and functions powers agencies legislative executive branches of government. the State mentioned,

As device used to sustain what otherwise might thought delegation be a judicial powers and agencies functions (usually administrative legislative government) branch of the State is to attribute to entirely proper delegation agencies by to such Assembly legislative General junctions, with proper guides standards, supposed exercise of quasi-judicial powers, usually by way functions of dicta. protested against my I dissenting opinions this in County MacDonald v. Board Commissioners Prince for 549, George’s County, (1965); 238 Md. 210 2dA. Association, Woodlawn Area Citizens Inc. Board of County George’s County, Commissioners Prince 241 Md. 187, (1966); 216 A. Homes, 2d 149 and in Delbrook Inc. v. Mayers, (1967); my Md. 234 A. 2d 880 and in concurring opinions Hyson v. Montgomery County Council, 217 A. Md. 2d 578 and in Gaywood Community Metropolitan Authority, Ass’n v. Transit (1967). In dissent, Md. 227 A. 2d 735 I Woodlawn observed:

“In v. Montgomery County Planning Schultze 76, 79, Board, (1962) 230 Md. 185 A. 2d 502 and in Kay County Construction Co. v. Council for Montgomery County, 479, 486, 227 Md. 177 A. 2d (1962), in majority both cited the opinion, there County is which dicta indicates that the in Council County Montgomery ‘quasi-judicial does exercise my opinion, In functions.’ is unfortunate unnecessary in language, to the those decisions cases, gives which rise to the notion holding impaired in has been Dal Maso somewhat it, I not overruled. As see in both cases the but County exercising a Council was ‘restricted ’ ’ function, ‘quasi-judicial legislative not a function. prefix my been observation that when the It has word, ‘quasi’ appended to a well-defined blurred, fuzzy thinking is invited distinctions are use and error often results. Its should be avoided.” 208, 216 A. 2d at 241 Md. at 162. it, majority opinion I how sound this

As see confirms was! observation quotation opinion majority extensive

present majority opinion in case from the State Insurance Casualty v. National Bureau Commissioner Underwriters, 292, 298-300, 248 Md. A. 2d 285-86 — (1967) upon of Professor much of it based the notions — is all Davis his Law Administrative Treatise appellate case, scope of In that we considered dictum. powers rate-making Insurance of the review of Commissioner, legislative in nature. we treated holding regard made exercise This Court no body an administrative or official. question legislation Indeed, was whether not the upon Judge nonjudicial powers Chief imposed the courts. holding, Hammond, Court, majority stated as follows: reviewing legislative

“We hold that a court agency actions or decisions of administrative may apply weight of the evidence test findings agency, exercising factual without nonjudicial functions, it does itself independent findings of its fact or substitute make (Emphasis agency.” judgment for that of supplied.) 2d at Md. at 236 A. 292.

In view composite of the use of the “quasi-judicial” word — prior in a opinions number of the of this Court to describe — improperly my opinion certain functions of agencies administrative legislative to which restricted powers functions and have properly delegated, been it necessary becomes are, to seek to determine what on the one — hand, “judicial” powers majority the may concedes — delegated not be agencies to administrative and “quasi-judicial” powers, admittedly on the other. It difficult to draw the line “judicial” of demarcation between “quasi-judicial” powers. Considerations of degree obviously are involved. It is clear to me that several provisions line,” were, of the Act the “cross as it to an attempted grant judicial power of will Commission. It helpful be to take a offending provisions close look at these of the Act. regard powers;

Section 93A-9 gen- to “Commission (c): erally” provides in Subsection “(c) empowered The Commission shall be en- Chapter through any the force of this appropriate means; including but not limited (i) the utilization services available through Affairs, of Office Landlord-Tenant (ii) imposition penalty, a civil not in excess of $1,000, any provision the violation of for of of (Hi) Chapter, this imposition an award of damages against money a landlord or tenant for either benefit of (iv) Chapter, ordering repairs by a land- tenant, (v) investigation lord or con- any Chapter any violations of this ciliation complaints investigation filed hereunder and the relating any matter license to conduct or operate facility.” a rental regard action; Section 93A-43in to “Commission violation Chapter tenancy provides: or defective found” “(a) If, at hearing, conclusion determines, upon preponderance Commission record, of this that a violation evidence of tenancy exists, Chapter or a defective has occurred findings state its and issue an shall the Commission respondent require the order shall order. Such and to such conduct and desist cease unlawful from will the appropriate action as take such effectuate also Chapter. The order shall purposes if determines a notice that the Commission contain not, respondent after fifteen has the following days service of the Commission’s calendar comply with the order, made a bona fide effort to will refer the matter to order, the Commission Attorney County for enforcement. a landlord

“(b) finds that Where the Commission tenancy, affected tenants a defective all has caused part may entitled to one or more or all or be by as ordered the Commission: following remedies leases, and “(i) their immediate termination of security deposits and all return their paid already to the landlord rental monies period the landlord was notified from condition, and relief from the said obligations under the terms and all future of a the lease. Where the termination ordered, dwelling be unit shall lease is period vacated within a reasonable time. by paid damages be

“(ii) an award of sustained as a result of landlord tenancy, damages being defective such damage or loss. determined as the actual services, damage In the case of loss such amenity proportionate lost. shall be damages persons or In the case of damages property, an award shall ($1,000.00) Dollars exceed One Thousand dwelling per unit. affected “(iii) paid by an amount landlord to be

equivalent expenditure a reasonable adequate obtain temporary substitute housing in the area. rental “(c) Where a tenant the Commission finds that tenancy, caused a be has defective landlord part to one more or all or entitled following remedies as ordered Commission:

“(i) the landlord may terminate immediately gain lease possession in accor-

dance with the of Article 53 of the Annotated Maryland. Code of Other remedies available to the landlord shall State law.

“(ii) an damages award of paid to be as a

tenant to the landlord sustained result tenancy, damages being of a defective such damage determined as actual or loss exceeding but not One Thousand Dollars ($1,000.00) damages any with a credit for may have been from deducted security deposit. Any damages award or of money paid under this section within not (30) thirty days may such be award from by the landlord or tenant to enforced granted any whom was the award court competent jurisdiction, any such grant judgment to court is authorized plus interest date such monies from supplied.) ’’(Emphasis the award. provisions appear 93A-44 headed criminal comply “Penalty for failure to with orders Commission or summons” and are as follows:

“(a) Any person comply any who fails to with pursuant Commission order or summons issued to guilty be this Article shall deemed a and, subject upon conviction, misdemeanor shall exceeding One to a Thousand Dollars fine may imposed hereunder ($1,000.00) Fines and costs. through or enforced attachment

be collected civil person comply day proceedings. Each that a fails specified herein an order the Commission as with hereunder, separate a constitute shall offense except person makes a bona fide where said that comply Chapter, penalty with no shall effort this period person is when the lie for that time making comply. bona fide effort to so comply with a

“(b) person, rather than Where order, chooses cease conduction Commission any facility, give he shall operation of a rental or sixty occupying premises question tenants premises, said (60) days written notice to vacate the begin day month the first period to on copy A of said following of said notice. service Director. must be delivered to the Executive notice period during sixty day penalty No will lie facility, have to vacate tenants operate the holder of the license conduct relinquish facility it and it to the submit the rental Executive Director. any

“(c) penalty other In criminal or addition compliance with an order of the provided, herein injunctive may be effectuated Commission proceeding to correct appropriate action or other Article, any court violation restraining competent jurisdiction issue injunctions or orders, permanent temporary or ” appropriate other relief. forms of supplied.) (Emphasis of whether for the determination What then is criteria body delegated to an administrative power attempted to be “judicial”? is (1962), the Law 2d Administrative

In 1 Am. Jur. following forth: criteria are set an power a final rather than

(1) “It to make is the at 160. determination.” Id. initial § (2) authority only is the inherent not to decide “[I]t binding judgments

but make orders or judicial power, which constitutes . . . at Id. §170. power personal property affects the “[S]uch

rights private persons involves the private determination of controversies under the law.” at 171. Id. provisions Act, already quoted

The in full with appropriate attempt emphasis, upon to confer following powers: Commission the “(a) imposition penalty exceeding of a civil

$1,000

(b) termination of leases

(c) security ordering deposits the return of paid

rental monies (d) money damages award of (e) ordering repairs

(f) awarding payments temporary for substitute

housing.” mentioned, Measured the criteria these are all essentially “judicial.” has the Commission determinations, make final rather than initial determinations, providing party receiving the Act that the any the award seek enforcement of it “in court of competent jurisdiction” and that such court “is plus grant judgment authorized for such monies interest (Emphasis supplied.) award.” from the date of the There is provision judicial proceeding no for trial or other before judgment There is no such a is entered. authorization to the judgment upon. deny court when award is sued Compare provisions regard the Act in with the Compensation relating of the Workmen’s Law where awards of the Commission the amounts are fixed provision made what law and amounts to a de novo trial in the courts. appeal provided by

If a de trial on were the Act from novo Commission, with the usual awards and decisions Court, in right evidence by jury, the to offer right of trial upon a facts based facts the trier of determination argued evidence, might be that the it preponderance of the was judicial powers and functions improper delegation of aggrieved by ultimately person prejudicial that review, judicial complete received action the Commission’s power by judicial the courts exercise of the with the full grants power.2 The Maryland such Constitution which the type attempt provide however, for Act, does not judicial review. delegation involving a quite that cases

It is true agency, our an administrative legislative delegating though even have held that predecessors finally may questions of fact be may provide legislation that agency not be set an administrative determined appeal, are not the courts aside, or modified on reversed duty review the power and of their constitutional divested illegal, agencies “which are such administrative actions of impair personal or arbitrary, unreasonable and Delaplaine aptly Judge stated rights,” as property Dishong, 198 Md. Coke Co. v. Johnstown Coal & (1951). majority cites this case The A. 2d judicial review indicating “the Dishong standard.” Chapter under the 93A are sufficient misplaced. Dishong my opinion, In its reliance on judicial establishing “standards” for Dishong case was not contrary, indicating the courts review, but, was on the obligation to of their constitutional could not be divested legislation law, process even in the face of due afford judicial purporting such consideration to eliminate which restricted bodies to of administrative decisions delegated. legislative power been had clearly are, my opinion, question powers in

The six traditionally therefore, are, powers judicial powers, and however, argument, in that not be sound would 2. The unique provisions delegated constitutionally in view of at all cannot of the mentioned, in the Constitution, already decision and our Dal Maso case. They rights, exercised are courts. not new unknown law, thereby to the common and in substitution for rights procedures traditional common and law like those given by Compensation What, the indeed, Workmen’s Law. power judicial could more fixing of a and function than penalty? the of a Ordway amount See v. Central Nat. Bank Baltimore, 217, Rep. (1877) 47 Md. 28 Am. and Doyle 455 of v. Comm’rs, (1842) County 12 G. J. 484 as well Baltimore & opinions as other since numerous these two cases. Surely, power it is a and function to fix the damages resulting of amount from action. tortious See Laundry Weber, 426, Macke Service v. 267 Md. Co. 298 A. 2d (1972) 498, 27 Murphy, (1898) and 40 A. Evans v. 87 Md. 109 many demonstrating concept. and other the cases this power The to declare lease terminated rescinded with security deposits an order for the return of and rental paid under monies the lease and the to determine the paid temporary to be housing amount for substitute are powers traditionally proper by exercised circumstances equity law or Needle, either the courts. See Gostin v. 185 634, 772, (1946) 45 A. 2d Md. A.L.R. 1013 163 Buschman Wilson, (1868) 29 Md. as 553 well as other cases illustrating principle. (1957, Repl. See also Code Vol.) 21, Article Section 8-213. judicial powers by these

When are the exercised law courts, the citizen right by jury has a constitutional to trial guaranteed by XV, Maryland Section 6 controversy Constitution where the amount exceeds provision This by $500.00. constitutional amended was — 1969, increasing Laws Ch. amendment — adopted being by amount from $500.00 $5.00 electorate at the election held on November 1970. It is no vestigial early law, anachronism from common but is vigor. too, right by current and full Then jury to trial guaranteed Maryland by to the is inhabitants of Article 5 of Rights Maryland Constitution, i.e., Declaration they by Jury, according are entitled to trial “the course Law . . .” well as Article common] [the Rights providing, alia, 23 of the Declaration inter deprivation life, liberty there no property shall be “but judgment peers of his . right . . This also guaranteed III, in eminent domain cases Article Section Maryland right 40 of the Constitution. It is obvious that the by jury, formally guaranteed Magna to trial first Charta — guaranteed generally times specific four either or in — in the situations is a Constitution valuable right, lightly disregarded “carefully not to be but to be against guarded infringement.” See at C.J.S. Juries § many and the proper in a upon proper evidence court and under it, I by a As this fundamental court. see without instructions judgment of right, property the the citizen’s is taken without indeed, process peers and, due law. his without of relegates majority opinion denial of trial Alas, the the (Footnote 12), stating that the a jury by the Act to footnote appeal from provision “for a de on Act makes no novo trial — does which indeed it final of the Commission” the action — deprivation the of not a and that “does constitute in the Constitution right jury a trial violation of Indemnity Maryland,” bidding to “See” Branch v. us (1929); v. Co., Thomas 144 A. 696 156 Md. Insurance (1932); v. and Petillo Co., 162 Md. 160 A. 793 R. Penn. (1945). 644, 42 2d When one examines A. 675 Stein, 184 Md. they however, all involved cases, it is discovered that these provided a Law, for de Compensation the Workmen’s right jury afforded. a trial appeal with the novo trial on indicating in the three cases is certain dicta There have rendered jury would not right of trial absence of the them Compensation Law unconstitutional the Workmen’s Accident proceedings before the Industrial theory that ” proceedings, but not common “civil were law Commission the common statutory proceedings, unknown to special were establishing rights and amounts legislation law, that the and inwas previously substitution and in lieu established rights procedure. common law and I cases, As read these it that, is rather clear aspect but for this of the Workmen’s Compensation Law, surely the Act would have been declared if right unconstitutional it had not jury for the to a trial a appeal. 486-88, de novo Branch, See 156Md. at 697-98; A. Thomas, 514-17, at 795-96; atMd. 160 A. at Petillo, and 648-49, 184 Md. at 42 A. 2d at 677. Also see strong dissenting opinion Judge Offutt in which Judge W. Digges Mitchell separate concurred dissenting and the opinion Judge case, Parke in the protesting Thomas against Branch, Leas, dicta in Frazier v. 127 Md. (1916), 96 A. 764 Ryan Reilly Co., and Solvuca & 265, 101 jury trial, Md. A. 710 a as known law, longer common indispensable is no “an prerequisite to constitutionality Compensation of Workmen’s Law.” already indicated, As there is a substantial and vital — distinction Compensation between the Workmen’s Law creating right a new procedures unknown common law right lieu of an established common law — establishing ability and a law having Commission penalties fix the damages amounts of and of resulting from action, arising tortious both well known to and out pretense common law with “rights” no that these are new rights and unknown to or lieu of common law practice. noted, essentially imposition penalties

As Although 93A-9(c) function. described penalty, penalty actually ordinance a “civil” as the is punishment provisions for violation of of the ordinance or orders of the Commission in addition to the “criminal” penalty for the for in misdemeanor 93A-44 the of § provisions ordinance. awarding damages, The of for payments leases, temporary termination of substitute housing, ordering repairs, security and the of of return deposits being paid, and rental monies to addition judicial powers, appear of possible exercise to exhaust the imposition “civil” and leave remedies of the “civil” penalty punishment for disobedience rather than for “civilrelief.” penalty” partakes

Therefore, my opinion, “civil bring play into sufficiently a criminal character of proceedings. See rights applicable to criminal usual civil 590, 596-97,2 86, 97-99, L. Dulles, 78 S. Ct. Trop 356 U. S. (3 Dall.) 386, (1958); Bull, 3 U. S. 640-41 Calder v. Ed. 2d (1798). 1 L. Ed. 648 Warren, majority for a Trop,

In Justice Chief States, stated: Supreme of the United Court penal, law is this deciding not a “In whether or upon generally based its determination has Court imposes If statute purpose of the statute. — is, punishment disability purposes for the — others, wrongdoer, etc. reprimand to deter penal.. .. it has been considered citizenship taking away from a purpose “The simply punish him. . . . is convicted deserter purpose punishment, and therefore the is Here the penal statute is a law.” 595-96, 96-97, 2 L. Ed. 2d at S. Ct. at

356 U. S. at 639-40. given purported

It is clear to me that 93A-9(c)(ii) impose penalty, civil “a Commission any provision $1,000, of this for the violation of excess punish (Emphasis intended to Chapter” supplied.) is awarding provisions for the compensatory violator. ordering repairs follow damages and the (c). (iii) (iv) Subparagraph subparagraphs of Subsection deter, (ii) obviously punish and not to intended to rights applicable panoply of compensate. The full civil notwithstanding the proceedings applies therefore criminal Calder, supra. Trop penalty. See “civil” before word purport does not Thus, reason that the Act for the additional sought to be rights penalty is when a to afford these civil is, in Commission, provision of the Act imposed by my opinion, unconstitutional. damage penalty and the thought that the civil

Lest it be consequence little financial the Act are of limitation, $1,000 be observed that it should because 464 $1,000 may imposed penalty up be to for “violation of

any damages up provision” Act and the “actual” to of the — $1,000 may imposed “per dwelling unit” affected 93A-4(f)) “dwelling being (§ unit” defined in the Act as “that portion multi-family building, facility of a or of structure designated, arranged two more which is intended or units ” occupancy persons. a or more for use as residence one (Emphasis supplied.) day continuing is a and if

If the violation one each violation, person be a continuance is deemed to a who had days penalized up violated the Act for 150 could be to $150,000. containing apartment complex

If a landlord had an 300 units, defined, dwelling and maintained a as “defective tenancy” facility “any condition in a rental defined any a violation of the terms of the lease or constitutes provision Chapter a of this or constitutes violation of — (íj 93A-4(e) law, Emphasis regulation supplied.), or code” might well a violation all of leases in he have common to complex apartment so that the Commission would be — empowered up $300,000 impose an award a rather ' tidy sum! already indicated, opinions from the courts As Jersey, Massachusetts, Minnesota, Oregon, Illinois, New i.e., Washington, Environmental Ford v. Utah App. Agency, Protection Ill. 3d 292 N.E.2d 62 N. (1973);3 Agency, Zahorian v. Russell Fitt Real Estate (decided by Appellate 3. The force Ford case Court of Illinois District) precedent gravely impaired by for the Third as a the decision of Appellate May 2, the (subsequent Court of Illinois for the Second District on case) City Waukegan in the decision Ford Agency, App. Environmental (1973). Protection 11 Ill. 3d 296 N.E.2d 102 Waukegan power delegated case held that Illinois impose penalty up $10,000 Pollution Control Board to unconstitutional or fine to' was an delegation judicial power, specifically declining contrary follow the decision the Ford case. The Court stated in the Waukegan case: believe, opinion Appellate “We with due deference to the Court, District, granting Third the impose Illinois $10,000 Pollution Control Board to delegation fine is an unlawful judicial powers agency. to an We administrative nothing by labeling procedure further believe that is solved such a Co., 54 N. J. (1973); Jackson v. Concord 399, 301 A. 2d 754 J. Commission (1969); Massachusetts 113, 253 A. 2d 793 Franzaroli, 112, Against Discrimination v. 357 Mass. 256 Bergeron, 351, State v. (1970); 311 290 Minn. N.E.2d 187 Joyce, Williams v. (1971); 482, App. 4 479 P. N.W.2d 680 Or. Commission, Wycoff Co. v. Public (1971); Service 2d 513 13 Hollis, Rody v. 123, (1962); Utah 2d 369 P. 2d 283 81 (1972), are, 88, my opinion, clearly Wash. 2d 500 P. 2d in inapplicable unpersuasive Maryland of the because provisions different and unusual constitutional in this State regard judicial power delegation. repeat and its To Sloan in Dal Maso: Judge words of Chief [delegation of may in which it “There be states authority can be judicial to administrative boards] done, at Maryland is not one of them.” 182 Md. but 205, 466. 34 A. 2d at are, however, highest opinions courts of

There two which Mexico and Carolina our sister states of New North condemning persuasive in as an unconstitutional are most delegations delegation judicial power here under Mechem, discussion. These cases are State v. 63 N. M. quasi-judicial; power nor is this to fine a mere mathematical from all would reach calculation on data reasonable minds imposed $1,000 same result. The Board here fines of and $250. the These amounts might have been doubled as Board member one they suggested, of might up have been other amount to a limit $10,000. imposition discretionary distinctly a a The fine is judicial act and one that cannot be exercised administrative body. judicial power Gradual erosion of the of the State in favor of endangers system government. administrative bodies is no hold our There question by the Illinois Pollution Control Board hearings determinations; however, and make factual imposition discretionary of a fine and the collection thereof must necessarily be a matter of determination a court.” 195, 296 App. 11 Ill. 3d at N.E.2d at 107. Supreme In Smith, view of the decision of the Court of Illinois Reid v. (1940), holding grant 375 Ill. 30 N.E.2d 132 A.L.R. 1286 that the power Department impose penalty to the Illinois of Labor to $10.00 day receiving prevailing wage for prevailing wage each laborer not for under attempt law was unconstitutional as an to confer the_

judicial power Department provisions on the of Labor in violation of the of Court of Constitution, probabilities Supreme the Illinois are that adopt reasoning Waukegan Illinois will in the case rather than that in the Ford case. P. 2d Vines, and State ex rel. Lanier v. 274 N. (1968). 486, 164 C. S.E.2d 161 Mechem,

In Supreme Court New held Mexico that a delegation legislature by the of that State to the Workmen’s Compensation questions Commission of to decide private litigants of fact between and to make decisions having the judgments force effect of was an delegation judicial power unconstitutional and violated regard New Constitution of Mexico judicial power delegation and its which are similar to the applicable provisions of the Constitution.4 Court Mechem stated:

“We think the performed by function to the clearly judicial commission is one. The upon questions commission is called to decide private fact between litigants empowered is to render decisions that have the force and effect of judgments.. . .” repeat, right

“We the to determine controversies litigants between individual 1, stems from Section Article 6 of New power Mexico This Constitution. cited, rests alone with courts. the case has No been and our search fails to having disclose one provisions comparable constitutional with Section 1, supports Article position. relators’ Possibly Maryland is exception, the one but there the commission cannot issue an enforceable 4. provides: Article Section 1 of New the Mexico Constitution powers government “The of this state are divided into departments, legislative, judicial, three distinct the executive and person persons charged and no collection with the exercise of powers properly belonging departments, one to of these shall any powers belonging properly exercise to either of others.....” Section 1 of the New Mexico Constitution commits the judicial power designated of that state to courts. of the court

judgment; judgment must be that give to it effect.” 253-55, P. at 1071-72.

63 M. 316 2d N. at held that Lanier, Supreme Court of North Carolina In legislature delegated to the Commissioner power an penalty was a civil to determine Insurance Lake, delegation power. judicial Justice unconstitutional court, aptly stated: for that authority legislative authority to

“The is authority laws; is, to or enact make governing regulations rules and establish rights, people, duties and their conduct of the consequences prescribe the procedures, to pro- Usually, operates it activities. certain hearing, conduct a spectively. The an individual has conduct of what the determine determination, light and, in of that been penalty, within limits upon him a impose law, penalty fit previously so fixed relevant so determined other past conduct legisla- nature, not circumstances, . tive. . . delegates own his authorities

“. . . One A branch powers, of another. not those delegate individual, may not government, like has, Legislature have. The it does upon statute, confer however, this undertaken part a of the of Insurance the Commissioner judicial power . . .” State. the effect courts to and other

“Decisions of this delegate to administrative Legislature that the prescribe power to agencies its own officers and regulations, so rules and administrative detailed itself, broad prescribes the Legislature, long as the which such principles within standards authority . . are is to be confined . administrative applicable present There, case. question sufficiently Legislature is whether the has delegatee has, itself, limited its own and thus power. Here, law-making exercised we are Legislature concerned with the extent to which the upon has undertaken confer an administrative power Legislature, itself, a officer which the never Thus, had. arewe not here concerned with whether Legislature prescribed has or has not standards guide and confine the administrative officer his exercise of the conferred.... Legislature

“. . . has [T]he that when acts, an agent insurance commits certain or fails to acts, may, do agent certain such hearing, after a upon have inflicted him civil penalty may vary amount which from a sum nominal $25,000 far, for each such act or Thus omission. is legislative power. statute an exercise of the . . . Obviously, however, someone must determine the penalty amount to be in each inflicted case. application law, This which has been enacted Legislature, specific to the facts in a found case, penalty so to make the commensurate with agent question, the conduct is of the judicial power. . ..” essense 495-96,164 N. at S.E.2d at 274 C. 166-67.

I Judge put think that Moore it opinion well in his oral when he stated: great difficulty

“The Court finds characterizing being these anything functions as adjudicative less than in their nature.” “Certainly, damages award and the damages essentially, determination historically, traditionally judicial function.” I Judge regard. would affirm Moore in 93A-26(b) 93A-27(c) Regard

§§ and in to Terms.

Two-Year Lease 93A-26(b) 93A-27(c) require all leases and Sections for date of the Act be offered after the entered into effective years, cause exists of two unless a reasonable initial term years. offering an initial of other than two term —(5) 8-402(b)(4) formerly Article and Section — provides: Code Sections 7 and 8 “(4) Applicable; Time of To What Tenancies City; in Applicable Baltimore Notices Not County. Exception Montgomery in 8-402(b) [regarding Section “The quit] apply all cases of tenancies shall to notices and year year, the month from tenancies year year from the week. In case of tenancies tenancies), a notice (including tobacco farm writing given three months before shall be tenancy, year of the expiration of the current tenancies, the except farm that in case all other given months before shall be six notice tenancy; expiration year of the current weekly tenancies, writing notice in monthly may be, week, shall the case one month or one as apply, shall so given; proceeding and the so same entry be, forcible far as to cases of (4), far it relates This so as detainer. subsection Nothing City. notices, apply in Baltimore shall relating to landlord the laws contained preventing contracts shall be construed tenant writing, from parties, agreement than substituting longer quit notice to or shorter notice, all required waive such heretofore or to contract property such area, special taxing pertains is located County. Montgomery incorporated town of “(5) to Landlord Effect of from Tenant Notice City. Move; Exception as to Baltimore Intention to give “When the tenant by parole shall notice [parol] agent landlord or to his or representatives, at least one month before the expiration tenancy lease except or in all cases year year, cases of tenancies from and at least three notice in tenancy months’ all cases of from year (except tenancy, all cases of farm year_ months), shall be notice six of the intention of year the tenant to remove at the end that and to possession surrender property time, at that landlord, agent, representative and the his shall prove by the notice from the competent tenant testimony, necessary shall it not be for agent landlord, representative his provide [prove] a tenant, proof written notice to the but the of such notice from the tenant as shall aforesaid possession entitle his landlord to recover (5) property hereunder. This subsection shall not apply City.” in Baltimore 93A-26(b) 93A-27(c)

Judge Moore held and invalid §§ as being in above-quoted conflict with the provisions of the Maryland Code. He stated: secondly,

“We authorizing read Article tenancy sufferance, at will tenancy and at for specific periods time, up years. tenancies to three by permitted This is Article 53.

“In judgment requirement the Court’s here in (b) making mandatory they subsection it specific period time, years, offered for a two is a conflict of a direct nature.” my opinion, In Judge Moore was correct. year

Even though year, by tenancies from the month law, and the week existed at common Section 8-402(b)(4) predecessor statutes, recognize and their permit a provide statutory leases term and for definite procedure rights enforcing after a landlord proper given. quit existing notice to The tenancies at law pv^lic general common are thus law the State throughout This, my recognized permitted the State. purview our opinion, brings within the the matter v. Sitnick Mayor City Baltimore & statement in & Council of (1969). Sitnick, In 303, 317, A. 2d Firey, 254 Md. Maryland cases,

Judge Finan, stated: after a review of opinions have cited “A we distillation of the political thought leaves the residual may prohibit what the State subdivision permitted, general public law but it has expressly prohibit has not what the State original.) permitted.” (Emphasis in Judge regard I affirm in this also. would Moore Indicating Parts Dictum That Certain (APA), Maryland Code Procedure Act Administrative 2H-256A, Apply Appeals From the II, Article to Sections Montgomery County. Court Commission Circuit for holding penalty provision majority, the civil The after standards,5 guides and then unconstitutional for lack of extraordinary indicate the proceeds by a dictum to most — upon part but not all judicial based “standard of review” — majority 255(g) APA! The of § states: review of judicial connection, we note

“In this by ‘appeal be shall final actions of Commission County in Montgomery for Court to the Circuit Procedure Maryland Rules with accordance 93A-45. 93A-25 action.’ of such §§ for review required Adequate “guides are for 5. standards” legislative powers constitutionality delegation the General Assembly delegating Assembly to an would since otherwise the General only legislate” given body “power to the General administrative Maryland Assembly by Lankford, Bradshaw Article III of the Constitution. (1891). guides requirement adequate 428, 73 Md. 21 A. 66 attempted delegation judicial application and standards has no which cannot be having judicial powers — body body legislative delegated at all such a Vines, supra, delegate. ex rel. Lanier v. State 495, 164 at N. C. at S.E.2d 166. Undoubtedly, contemplated the Council that review of the Commission’s final action be in would Chapter accordance with 1100 of the Rules, B, regulating appeals Subtitle from agencies, authorizing administrative the court ‘affirm, modify appealed reverse or the action from, agency remand the case to the for further proceedings, appeal or dismiss the as now or provided by hereafter law.’ Rule B12. While neither the Act explicitly specify nor the Rules applied reviewing agency substantive test to be determinations, and the Administrative Procedure (APA), Maryland Code, Act §§ 244-256A, county applicable is not its terms agencies, administrative Urbana Civic v. Urbana Mobile, (1971), Md. A. 2d 628 we think the Council intended that the standard of review be reconciled with (g) that contained in 255§ (l)-(5), inclusive, County of the APA. See Fed. S. & Equitable L., L. v. S. & 261 Md. 274 A. 2d 363 (1971). 255(g), pertinent, Section insofar provides: may

‘The court affirm the decision of the agency or remand case further proceedings; modify or it reverse or if rights decision substantial petitioners may prejudiced have been because conclusions, findings, inferences, administrative or decisions are:

(1) provisions; In violation of constitutional or (2) statutory authority In excess of the or

jurisdiction agency; of the or (3) upon procedure; Made unlawful or (4) by law; Affected other error of or (5) Unsupported by material, competent,

substantial evidence in view of the entire submitted;....’” record as Omitted the “standard of review” under the from (7) (6), (8) APA, 255(g) subparagraphs are Act provide: “(6) competent, weight material Against in view the entire evidence and substantial including by agency and record, as submitted court; open or de evidence taken novo (7) record, by as Unsupported the entire including agency de novo by submitted court; or open evidence taken capricious.” Arbitrary or appellants the circuit court ill for

These omissions bode orders, particularly the awards and from the Commission’s — —(8) “arbitrary capricious” or subparagraph omission of previously that the majority had indicated inasmuch as the orders and find the Commission’s of the court to deny “arbitrary capricious” and thus to due awards to be were, sketchy appeal “saved,” process it law Act, my opinion) relying (improperly, in on by 472-74, Dishong, Md. Co. v. Coal Coke Johnstown & (1951), supra. 2dA. 849-50 Act which indicates that word in the There is not a it, appeals final actions APA, any part applies from 93A-45 the circuit court. Sections Commission “Appeals” states: entitled action of the “Any aggrieved a person final this Article rendered under

Commission County Montgomery appeal Court to the Circuit Maryland Rules of in accordance with (Emphasis action.” of such for a review Procedure supplied.) are court appeals to the circuit will be

It observed appeal and the action” the Commission from “final with the “person is to be in accordance aggrieved” Act, Maryland By provision of the Rules Procedure. relating Agencies B12, “Administrative B1 Rules provide for Appeal apply. These Rules do not From” they and, indeed, tried to if had judicial review” “standard of 474 this, attempt provide

do would have been an for matter, beyond legal substantive constitutional authority given IV, Court Section 18A adopt Constitution to Rules Procedure. As expect, one would B” “Subtitle Rules are concerned with “procedure” relating appeals from administrative agencies and, by of Rule B1 and b would applicable any appeal provided have been in the Act specifically whether or not mentioned the Act itself. majority B12, quotes provides The Rule that “[t]he affirm, Court shall modify appealed reverse or action from, case agency remand the proceedings, further appeal or dismiss the as now or law” hereafter added.) (Emphasis and then indicates that it thinks “the Council intended that the standard review be reconciled” with the standard contained Section only 255(g)(l)-(5) of the APA. — — majority recognizes it must that the APA 244(a) explicit application

its terms in its to State confines commissions, boards and exceptions. with certain We have properly apply agencies held that the APA not does political subdivisions the State. In Urbana Civic Ass’n v. Village, 458, (1971), Urbana Mobile 260 Md. 272 A. 2d 628 we Maryland Rules, appeals held that the B regulating from — — agencies, grant administrative cannot and do not and, right appeal further, Planning actions of the County County Commission of Frederick and of the County Commissioners of Frederick were reviewable Judge Digges, Court, under the APA. for a unanimous stated:

“Nor are these actions reviewable under Administrative county Procedure Act since agencies are provisions. not included within its Art. 41, Hyson Montgomery 255. County §§ Council, 55, 66, (1966); 242 Md. 217 A. 2d 578 Bernstein Education, v. Bd. 245 Md. (1967).” A. 2d 243 Md. at 272 A. 2d at 631. majority opinion, its Ass 'n is in the but Urbana Civic cited majority holding is followed. Neither is it overruled. The Savings upon County in Federal & Loan relies our decision 246, Ass’n, 274 Equitable Savings Loan 261 Md. Ass’n v. & (1971) agency when a is A. which indicated that State 2d — Building, Savings and in that case the Board of involved — Maryland B provisions Loan the of the Commissioners regard 161H appeals, in to of Article Section Rules Board, relating APA should appeals from and of the the “reconciled,” scope particular of the with reference to the appeal provided 161H. This is a de novo in Article Section “reconciling” indeed, provisions APA cry, far the of the from provisions especially when the with the Act nonexistent of all, the apply the APA itself do not at by Commission, the expressly provided in the APA and as prior sum, majority has In what of this the decisions Court! done, it, legislation” indulge “judicial I in as see is will, type, adding, you aggravated if a nonexistent most provision regard judicial review” to to the “standard of Act, which, my opinion, as would read 93A-45 of the County if Council: follows it had been done action, the Cir- “Upon review of such County may, pro- Montgomery as for cuit Court Vol.) Repl. (1957, vided in Code (5), 255(g)(1) through affirm the de- Section remand the case the Commission or cision of if the proceedings substantial it for further person aggrieved rights have been findings, prejudiced because the Commission’s (1) in inferences, conclusions, decisions are: or (2) in ex- provisions; of constitutional violation statutory authority jurisdiction or cess of the (3) procedure; agency; upon unlawful or made law; (5) un- affected other error material, competent, supported by and substantial in view of entire record submitted.” evidence “high watermark” This, suggest, perhaps is I example lurid “judicial legislation” a rather and is legislative exercise powers contrary this Court of express provisions of Article 8 Declaration of Rights it, As I Constitution. see the ma jority permitting to exercise Commission powers while legislative it exercises forbidden powers. pass “Ships night speak to each other passing,” as it were. extraordinary applicable I to the Act think to this addition Judge Prescott, by majority is the statement of Chief Court, Amalgamated Casualty Insurance Co. v. (1965): 529, Helms, Md. 212 A. 2d 315-16 239 course, statutory “Of the cardinal rule of carry true construction is out to seek and Legislature. Corp. Casey of the Devel. v. intention County, doing, Montgomery 212 Md. 138. And in so necessary, it sometimes becomes under unusual circumstances, spirit purpose to look to the and State, 403; an 42 Bickel enactment. v. Md. Cearfoss Nice, 1; Higinbothom, v. Smith v. 187 Md. Md. very Judge Marbury clearly pointed 115. But Chief Tawes, Md. that the rule out Clark prevail that real intent must intent is over literal adopted only say when the a literal words of statute something Legislature possibly that the not could repeatedly have meant. He said that this Court has general a stated that as rule a court legislative contrary plain a intention to the surmise statute, language a nor insert or omit words to express make the an intention not evidenced statute original See Pressman v. State Tax its also form. therein; Comm., 204 Md. 78 and cases cited And, State, Fowel v. 206 Md. 101. if a statute be plain ambiguity, application may and free from its enlarged not be or extended construction. State, (Emphasis supplied.) Grimm v. Md. 243.” Inn, Wayside Longfellow, Theologian’s 6. Tales “The Tale: Elizabeth IV.” grave County I also have doubts that the Council could have, itself, adopted the addition to 93A-45 of the Act in regard APA, majority supplied by which the has Assembly Inasmuch as the “construction.” General has specifically apply only held that APA to State should agencies, exceptions, with certain enactment County applicable part of the APA to be Council of appeals appear from final actions of the Commission would — to be in the teeth of the public of the APA a general law, beyond County Council XI-A, Express under the Powers See Article Section 3 Act. Maryland providing, part, the Constitution of that where “any passed by there is conflict said law between local [one legislative body county] aof chartered Public General Law now or hereafter enacted Public General Law Mayor City shall See Heubeck v. & control.” Council of (1954). Baltimore, 203,208-10, 107 99, 102-03 205Md. A. 2d above, question In addition to all of the below, passed “standard of review” was not raised upon court, argued or decided the lower briefed majority well, my before us. The have would done opinion, question not to have considered for the first majority opinion. time in the Rule 885. Judge Murphy, Court, put

Chief for the it well in Small v. Maryland, Secretary 267 Md. the State Personnel 532,536-37, 173, 175 stating: A. 2d question “Small the additional whether raises vague ‘as Article 64A is so and indefinite to make subject entire Statute unconstitutional or not argument construction.’ No whatsoever advanced point support was of the contention. Since below, it is not neither raised nor considered Maryland properly 885.” before us. Rule Letke, 110, 117, County 268 Md. We in Baltimore v. stated (1973): 2dA. appeal, County, the first time on “The questions regard attempted to raise possible of the terms of the contract indefiniteness authority Mr. did not Redmond have County points

bind the to the contract. not These having been raised or decided will not be below appeal. considered ns on Rule 885.” appellant appeal At least Letke the on raised argued questions they raised below were briefed indicated, regard before us. As not even this done was addition the Act of the “standard of review” This, part Athena, sprang via of 255 the APA. like full grown from the head of Zeus. Judge

I am authorized to state Smith concurs with expressed. the views herein HOWARD BOARD OF

VALENZIA ZONING COUNTY 87, September Term, [No. 1973.] Decided December 1973. notes welfare clause, granting general welfare or similar ‘A corporation, municipal extremely broad municipality wide liberally to accord construed power,’ police in the exercise discretion says: he cases, indeed, ‘The increasing reveal an inclination under such a clause to municipal accord to authorities wider discretion the reasonable and non-dis- criminatory exercise, good faith, police power public in the interest. While clause, under the guise it, or under the personal property rights recognized by general guaranteed law and organic unreasonably cannot restrained, uniformly regard courts ample clause as authority for a exercise, good reasonable faith, of broad municipal and varied activity to

Notes

cases cited in notes to 9.§ certainly proceeding Most involving the determination penalty, $1,000.00, exceeding of a of the amount not exceeding $1,000.00, is a action, damages tortious likely will proceeding” and most $500.00. “civil exceed jury right has have a these amounts citizen determine

Case Details

Case Name: County Council v. Investors Funding Corp.

Court Name: Court of Appeals of Maryland

Date Published: Dec 4, 1973

Citation: 312 A.2d 225

Docket Number: [No. 282, September Term, 1972.]

Court Abbreviation: Md.