72 Md. 548 | Md. | 1890
delivered the opinion of the Court.
By ordinance No. 17, of the year 1889, the Mayor and City Council of Baltimore, set apart a certain portion of “Centre Market,” particularly described in the ordinance, for a “wholesale market for the sale of fresh and
The appellee was indicted for selling without license; and a demurrer to the indictment was sustained on the ground that the fourth section of the ordinance was void, because the Judge of the Criminal Court of Baltimore, regarded the ordinance as intended to raise revenue for the city, and not to be in the exercise of its legitimate police power. The large license fee which is required by the ordinance was regarded by the Court as a clear indication of an effort to raise revenue under the guise of the exercise of its police power, and therefore falling within the condemnation of Vansant, Comptroller vs. Harlem Stage Company of Baltimore City, 59 Md., 334.
It is well established law that municipal authorities can exercise no powers which are not in express terms,
By section 611 of Art. IV, of the Public Local Laws (Code of 1888,) the Legislature has granted to the Mayor and City Council of Baltimore City, the “power to erect and regulate markets;” and by section 618 of the same Article it is enacted that “the Mayor and City Council may lease, sell, or dispose of the stalls and stands in any market in any manner, and for any term they may think proper.” A fair and reasonable construction of this power can only give to the city authorities, as the owners of the market houses, the power of selling and leasing the stalls in their buildings as they may judge best; and the power to regulate the markets which is given by section 611, can only beheld to intend to give reasonable police powers with reference thereto. The power to regulate markets, is, according to Mr. Dillon in his work on Municipal Corporations, nothing more than a police power. Dillon on Mun. Corp., 3rd Ed., sec. 141.
The taxing power belongs to the Legislature; and it will not be held as conferred on a municipal corporation
So far as this “Centre market” is concerned, by ordinance No. 18, of Art. 35, of the City Code of 1819, the city has provided for the renting, and the rates for the same, of the stalls in that market. That ordinance is not repealed, in terms, by ordinance No. 11, of the year 1889, nor by any subsequent ordinance that we can find; and, unless it be so repealed in whole or in part by this ordinance No. 11, by necessary implication, it is still in force, and must be presumed to be executed according to its terms. There is no repugnancy between the two ordinances to work such repeal, that we can discover. The ordinances have different objects in view. The first is the exercise of the power to lease, rent and dispose of their property as the Legislature had authorized and eriipowered them to do under section 618 of the Local Laws of Baltimore City, already referred to.. The other ordinance can only be understood as attempting to exercise their police power to regulate the markets, given by section 611 of the same Local Laws. There is not one word in the ordinance, No. 11, about leasing or renting the stalls. It does set apart certain portions of “Centre market” for the “wholesale fish and crab business;” but it does not profess to fix any rental value or charge for the use of particular locations, places, and stalls in that market; but by its fourth section imposes a license for everybody to pay before he shall engage in the fish trade in that market. The ingenious defence made by the counsel for the city that this is not a pure license of the business, but embraced also the rental charged of the licensees for the use of the stalls, finds no support, we
Judgment affirmed.