132 Md. 442 | Md. | 1918
delivered the opinion of the Court.
This appeal is from a decree of the Circuit Court of Baltimore City sustaining a demurrer to and dismissing the bill of complaint filed by the appellants against the Mayor and City Council of Baltimore and John D. Blake, Commissioner of Health, to have Ordinance No. 262 of the Mayor and City Council of Baltimore declared null and void, and for an injunction restraining the enforcement of the same.
The bill alleges that the plaintiff, Thomas J. Creaghan, was a resident and taxpayer of Baltimore City, and at the time of the filing of the bill, and for twenty-eight years prior
The bill further alleges that on the first day of Tune, 19 IT, the Mayor and City Council of Baltimore passed an ordinance, known as Ordinance Ho. 262, which provided, in Section 6, that it should take effect five months after the date of its passage; that there was no statute of the State authorizing the ordinance, and that the same is “unconstitutional and in contravention of the twenty-third paragraph of the Bill of Eights of the State of Maryland and the Fourteenth Amendment of the Constitution of the United States, in that it deprives citizens of Baltimore City and non-residents of Baltimore City of their property without due process of law, and without any warrant or authority whatsoever; and interferes with their personal liberties”; that “many portions of said ordinance are void in that it attempts to empower said Commissioner of Health to use unlimited
The bill then prayed that the ordinance referred to, “and each and every part thereof,” be declared null and void, and that the defendants he enjoined from enforcing or attempting to enforce it.
The ordinance, which was filed as an exhibit with the bill, is entitled: “An ordinance to repeal Sections 55A, 56A, 56B and 59 of Article 14 of the Baltimore City Code of 1906, title ‘Health,’ sub-title ‘Food, Food Products and Milk,’ as amended by Ordinance 103, approved May 6, 1908, and to reordain said sections with amendments, and to add twelve new sections to said article, to be designated Sections 55E, 59A, 59B, 590, 59D, 59E, 59E, 59G, 59H, 59 I, 59 J and 59K, and to further regulate the production, manufacture, handling, sale and distribution of milk and cream products in Baltimore City.”
Notwithstanding the ordinance itself covers more than twenty-six printed pages, and is an amendment of and an addition to Article 14 of the Baltimore City Code of 1906, as amended by Ordinance 103 of May 6, 1908, containing many other provisions dealing with the same subject-matter, the plaintiffs nowhere in their bill refer to the particular sec
While the enforcement of a void ordinance may be enjoined at the instance of a party whose interests will be injuriously affected by its execution (Page v. Baltimore, 34 Md. 558; Deems v. M. & C. C. of Baltimore, 80 Md. 164), the well established rule in this State is that a statute may be valid in part and void in part, even where the two parts are contained in the same section, “provided that the valid part is independent of, and severable from, that which is void.” Steenken v. State, 88 Md. 708; Welch v. Coglan, 126 Md. 1. And the same rule applies to ordinances. Field v. Malster, 88 Md. 691. As we have said, the bill alleges that “many portions of said ordinance are void,” without specifying the particular provisions or sections objected to, while the prayer of the hill is that the “ordinance and each and every part thereof” be declared null and void. Where an ordinance contains many sections and provisions, and is an amendment of and an addition to an article of the Code containing numerous other sections and provisions dealing with the same subject-matter, in connection with which the ordinance must be construed, good pleading would at least require the plaintiff to point out the sections and provisions claimed to be unconstitutional, with sufficient averments to show that his interests would be injuriously affected by their enforcement.
The main objections urged against the ordinance in question, as gathered from the very general allegations of the bill, are:
1. That the Mayor and City Council of Baltimore had no authority to pass it.
2. That it is unconstitutional in that it deprives the plaintiffs of their property without due process of law.
4. That it fails to provide “for proper notice, and hearing or appeal from the results of the exercise of such discretion.”
5. That it attempts to delegate legislative power to the Commissioner of Health, “in that it attempts to empower him to make regulations for the sale of milk,” etc.
1. The Baltimore City Charter (Act of 1898, Chapter 123) expressly authorizes the Mayor and City Council of Baltimore “To provide hy ordinance for the proper inspection of milk or any and all other food products offered for sale in the City of Baltimore or intended for consumption therein,” and further declares that the city shall “have and exercise within the limits of the City of Baltimore all the power commonly known as the police power to the same extent as the State has or could exercise said power within said limits.” The ordinance in question was passed in the exercise of the police power thus expressly conferred upon the Mayor and City Council, and can not therefore he said to be without legislative sanction and authority. Deems v. Balto., supra.
2. All of the other objections, as we have enumerated them above, are fully covered and disposed of hy the decisions of this Court.
In the case of Boehm v. Baltimore, 61 Md. 259, Judge Millek, speaking for the Court, said: “Under the power To pass ordinances to preserve the health of the city, to prevent and remove nuisances, and to prevent the introduction of contagious diseases,’ the Mayor and City Council of Baltimore enacted, among others, two ordinances * * *. By the first of these ordinances it is provided that no person shall remove the contents of any privy, well or sink, within the limits of the city, without having first obtained a license so to do, and every person who may obtain such license ‘’shall be
In Deems v. M. & C. C. of Balto., supra, the Court had under consideration an ordinance of the Mayor and City Council of Baltimore making it unlawful for any person to sell or offer for sale any impure, adulterated, sophisticated or unwholesome milk or other food products; and providing that only pure, unadulterated, unsophisticated and wholesome milk should be sold, and that such article should be understood to be the natural product of healthy cows which had not been deprived of any part of its cream, and to which no additional liquid or solid preservative had been added, and having the specific gravity therein mentioned. It also provided for the appointment of a competent chemist, who should make such chemical and microscopical examinations as might be required under the ordinance, and for the appointment also of three inspectors of foods, and by section 6 further provided: “And milk or food products in the possession of the person or persons so violating, disobeying, refusing or neglecting to comply with the provisions of this ordinance may be confiscated and destroyed by the inspector examining the same.” The bill was filed by a dairyman, who conducted a retail'business for the sale of milk, and alleged that a certain inspector, etc., without making any chemical or microscophical examination thereof, and without due process, of law, poured his milk out. upon the streets, and down the gutters of the city, thereby wasting and destroying the same. It further alleged that the ordinance, and particularly section 6 thereof, was void, and prayed for an injunction restraining the Mayor and City Council and the other defendants “from taking and destroying, without chemical or microscophical examination first made', and without due process of law first had, any milk or other dairy product, the property of the complainant.” It was urged by counsel in that ease that a municipal corporation could not impose a forfeiture of prop
In the case of State v. Broadbelt, 89 Md. 565, the appellee, a dairyman engaged in supplying milk to- cities-, towns and villages within this State, was indicted under the Act of 1898, Chapter 306, for failing, neglecting and refusing to register his herd of cattle with the Live Stock Sanitary Board, and he demurred to the indictment upon the ground that the statute was unconstitutional in that it deprived “the individual of the due process- of law secured by” the Fourteenth Amendment to the Federal Constitution, and by Article 23 of the Maryland Declaration of Rights, etc. In disposing of. the case, Chief Judge Mo Sherry, after stating that the entire Act was strictly a police regulation, enacted for the purpose of preserving the public health, and after referring to the danger arising from the use of impure milk, said: “Thorough inspections- of cattle and dairies may reduce the frequency of infection. The preservation of the public health by preventing the sale of infected milk, or of milk that may come from infected sources, when milk by reason of its almost universal use in one form or another as an article of food is especially likely to spread disease, is one of the most imperative duties of the State, and obviously one most incontestably within the scope of the police power. As a means to that end—the preservation of the- public health—
In M. & C. C. of Balto. v. Wollman, 123 Md. 310, this Court, speaking through Judge Briscoe, said: “The right to delegate power by municipal authorities rests upon the same principle and is controlled in the same way as the delegation of the legislative power by the State. * * * We
In the case of State v. Normand, 85 Atl. 899, the Supreme Court of New Hampshire, dealing with a provision authorizing the State Board of Health “to- make all necessary rules and regulations for the enforcement of the provisions of” an Act forbidding “The existence or maintenance of any unclean, unhealthy or unsanitary condition or practice in any establishment or place where food is produced, manufactured, or stored or sold, or any ear or vehicle used for the transportation or distribution thereof,” said: “The delegation of said power is not unusual. The State Board of Cattle Commissioners is authorized to make such ‘regulations as the board deems necessary to exclude or arrest’ diseases in cattle. Each board of medical examiners ‘may make any by-laws and rules not inconsistent with law, necessary in performing its duties.’ * -x- -x- inspector of steamboats may make rules and regulations. * * * Similar power is given to. the commissioner of pilotage. * * * And numerous other instances, might be cited of powers given to> public administrative authorities to make rules for the enforcement of specific laws. If such rules are not unreasonable, and if they are not repugnant to the laws of the State or the Constitution, they are usually upheld as the exercise of power specially conferred by the Legislature for the more efficient enforcement of the statutes to which they relate. ‘As the possessor of the lawmaking power,’ the Legislature may confer authority and impose duties upon others and regulate the exercise of their several functions. It may pass general laws for that purpose, giving them expressly or by necessary implication an incidental discretion to employ the proper means to fill up and replace the details for themselves and subordinates, though the exercise of that discretion be quasirjudücial. * * * It can not be said that every grant of power to executive or administrative
Without attempting to refer to the various sections of the ordinance, or the many provisions contained therein, a reference to Section 55A will serve to show the general character of the provisions made by the ordinance and of the powers conferred upon the Commissioner of Health. Section 55D, as ordained by Ordinance Ho. 103 of 1908, declares:
“The Commissioner of Health shall have power to adopt such regulations as may be deemed proper and necessary to insure all milk and cream intended for consumption in Baltimore City being produced, transported, stored, kept, distributed, retailed and delivered under conditions rendering them suitable for consumption as human food, and to compel perfect hygienic and suitable conditions of all cow stables, creameries*460 and dairies from which milk and cream so intended for consumption in Baltimore City are produced; such regulations not to be inconsistent with existing laws or ordinances, and copies of the same to be printed and kept for free distribution to the public; and said Commissioner of Health shall have power to prohibit the sale within the corporate limits of Baltimore City of milk or cream produced, transported, stored, kept or distributed, retailed or delivered contrary to such regulations, whether such milk or cream be produced within or outside of the corporate limits of the City of Baltimore; and to the end that said regulations may be enforced in cases of milk or cream produced outside of the corporate limits of the City of Baltimore, but intended for consumption therein, said Commissioner of Health may require such of the city milk inspectors as he may designate for the purpose to make inspections at such intervals and times as he may deem expedient of all dairy farms, stables and other places outside of thé City of Baltimore from which milk or cream are shipped for consumption in Baltimore City.
In case full access to such premises or full opportunity to investigate all the conditions under which milk is there produced or kept shall be denied said inspectors, or in case upon such inspection the conditions are found such as in the opinion of the said Commissioner of Health render such milk or cream unsuitable or unsafe for human food and warrant the exclusion of said milk or cream from sale in Baltimore City, said Commissioner of Health shall have power to absolutely prohibit the sale thereof at any place in Baltimore City until such time as the reason for their ex- - elusion shall in his opinion have ceased, and he shall adopt such means of identifying such milk or cream as to him may seem proper and expedient,” etc.
And Section -5 5A of the Ordinance in question in this case provides:
■ “Every person or corporation desiring to bottle or handle for sale, or to offer or expose for sale, or to*461 sell, dispose of, exchange or deliver milk or cream (the words ‘milk or cream’ as heroin used being intended to mean milk, cream, skimmed milk, buttermilk or other fermented milk) or to manufacture for sale ice cream or butter, in the City of Baltimore, shall make application to the Commissioner of Health for a permit so to do.”
It provides that the application shall be made on a printed form to be furnished by the Commissioner of Health, and what the application shall contain, and then provides:
“The Commissioner of Health, upon receipt of such application, shall cause to he investigated the place of business described in such application and the wagons or other vehicles, if any, intended to be used by such applicant. If such places of business and such wagons and other vehicles are found, upon such investigation, to he in a sanitary condition and fit for the uses and purposes for which they are intended to be put, said Commissioner of Health shall forthwith register said applicant in a proper record to he kept for the purpose, and issue a permit authorizing such applicant to carry on, engage in and conduct the business applied for in Baltimore City at the place designated in such application. Such permits shall specify the kind or kinds of business to be conducted. All permits granted pursuant to this ordinance may at any time be revoked by the Commissioner of Health for the persistent, repeated or willful violation of any law or ordinance, or for any regulations of the Commissioner of Health, governing the handling or sale of milk or cream, or the manufacture for sale of ice cream or butter in Baltimore City; provided, however, that no such permit shall, at any time, bo revoked by the Commissioner of Health unless he shall first have given the holder of the same not less than ten days’ notice in writing of his intention to revoke such permit, and an opportunity to be heard by him as to why such should not be done, this proviso not to be taken to*462 apply to cases where the sale of milk or cream or the manufacture for sale of ice cream or butter may be temporarily prohibited by the Commissioner of Health because of disease^ temporary unsanitary conditions or similar causes.”
This section further provides that the permits shall not be transferable, and if the person or corporation having the permit shall chango the location of his place of business, notice of such proposed change shall be given to the Commissioner of Health, and also provides that any person who sells or offers for sale milk, etc., in Baltimore City, without having a permit to do so, shall be subject to a fine of not less than five nor more than one hundred dollars for each offense.
It would seem clear that the provisions of this section are entirely within the reasonable exercise of the powers conferred upon the Mayor and City Council of Baltimore. The permits provided for are issued to those complying with its provisions, and whose places of business, wagons, e'tc., are found, upon investigation, to be in a, sanitary condition and fit for the purposes for which they are intended, and are revocable by the Commissioner of Health for the persistent, repeated or willful violation of any law or ordinance, or any regulation of the Commissioner of Health, governing the handling or sale of milk or cream, or the manufacture for sale of any ice-cream or butter in Baltimore City, after notice to the holder of the permit, and after he has had an opportunity to be heard. The ordinance does not attempt to delegate legislative power to the Commissioner of Health, but authorizes him to exact compliance with the provisions thereof and with such regulations as he has adopted for their enforcement, and gives him only such discretion as is necessary in the proper execution of a law or regulation designed to prevent the introduction and sale of impure milk, etc., in Baltimore City.
Radecke’s case, 49 Md. 217; State v. Mott, 61 Md. 297; Bostock v. Sams, 95 Md. 400, and Hagerstown v. B. & O. R. R. Co., 107 Md. 178, upon which the appellants largely rely, deal with ordinances entirely unlike the one now under consideration. Radecke’s case was referred to by Judge Miller, in Easton v. Covey, supra, as not in conflict with the latter decision, and in Hagerstown v. B. & O. R. R. Co., supra, Judqe Briscoe, after observing that Easton v. Covey, supra, was unlike that case, said: “And in holding this ordinance void and invalid for the reasons stated, we contravene no decision in our own State, and impose no unnecessary restraints upon the action of municipal bodies within proper and constitutional limitations.”
The cases from which we have quoted have not been overruled by the later decisions of this Court, and they fully sustain the provisions of the ordinance in question.
Decree affirmed, with costs.