County Council v. Investors Funding Corp.

312 A.2d 225, 270 Md. 403, 1973 Md. LEXIS 697

Opinions

Murphy, C. J.,

delivered the opinion of the Court. Barnes and Smith, JJ., concur in part and dissent in part and Barnes, J., filed an opinion concurring in part and dissenting in part in which Smith, J., concurs at page 446 infra.

This appeal draws into question the legality of Chapter 93A of the Montgomery County Code (1965, as amended), entitled “Fair Landlord-Tenant Relations.” * Enacted as Bill 19-71 by the County Council for Montgomery County (the Council) on June 13, 1972, Chapter 93A (the Act) undertakes in four separate articles to comprehensively regulate the apartment rental business and its concomitant landlord-tenant relationships and activities in Montgomery County. Investors Funding Corporation, together with a number of other corporations and individuals engaged in the business of renting dwelling units in Montgomery County (the landlords), sought a declaratory decree in the Circuit Court for Montgomery County that the Act was null, void and of no effect because in a number of designated particulars, it violated the state and federal constitutions, and was otherwise beyond the power of the Council to enact. The court (Moore, J.) concluded in an extensive oral opinion that while the Council possessed the basic power under the County’s Home Rule Charter to enact Chapter 93A, various of its provisions were illegal, unconstitutional or otherwise nugatory as being in conflict with the public general laws of the State. From a decree so declaring, both the landlords and the Council appealed.

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

“(i) to simplify and clarify the law governing the rental of dwelling units;

(ii) to encourage landlords and tenants to maintain and improve the quality of housing in this County;

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

(iv) to revise and modernize the law of landlord and tenant to serve more realistically the needs of an urban society developing within Montgomery County, Maryland.”

Section 93A-3 provides that, subject to the public general laws of the State, the Act “shall regulate and determine legal rights, remedies and obligations of the parties and beneficiaries of any rental agreement, concerning any multi-family structure containing two or more rental dwelling units within this County wherever executed.”

The Office of Landlord-Tenant Affairs is created by § 93A-6 of Article II of the Act and placed under the immediate supervision of an Executive Director; the Office is designated as a principal office of the executive branch of the Montgomery County government, and is vested with primary authority for implementing the Act’s provisions. The Executive Director is empowered by § 93A-7 “to initiate, investigate and conciliate any violations of this Chapter or any complaints filed hereunder, and to investigate, grant, deny, revoke, suspend, refuse or renew licenses hereunder.” A Commission on Landlord-Tenant Affairs is created by § 93A-8 of Article II; it is comprised of nine members appointed by the County Executive, three of whom are to be selected from nominations made by organizations representing landlords; three from nominations made by organizations representing tenants; and three members of the public at large who are neither tenants nor landlords. The Commission’s powers are delineated in § 93A-9; among them is the power to enforce the provisions of the Act “through any appropriate means; including but not limited to . . . (ii) the imposition of a civil penalty, not in excess of $1,000, for the violation of any provision of this Chapter, (iii) the imposition of an award of money damages against a landlord or tenant for the benefit of either as may be provided for in this Chapter, (iv) the ordering of repairs by a landlord or tenant, and (v) the investigation and conciliation of any violations of this Chapter or any complaints filed hereunder and the investigation of any matter relating to any license to conduct or operate a rental facility.”

Article III of the Act, entitled “Licensing of Rental Facilities,” provides in § 93A-16 that after the Act’s effective date (September 19,1972), “it shall be unlawful to conduct or operate within Montgomery County a rental facility without having first applied for or obtained a license to operate or conduct said rental facility . ...” ¹ Failure to comply with the licensing requirements is declared a misdemeanor by § 93A-17, punishable by a fine not to exceed $1,000 and costs for each offense. Landlords of rental facilities are required by § 93A-18 to apply to the Office of Landlord-Tenant Affairs for licenses within twenty days after the Act’s effective date. Provision is made for the issuance of temporary and conditional licenses pending inspection of rental facilities and compliance with all applicable laws; and the Executive Director is vested with authority to determine whether the rental facility for which licensure is sought conforms with the governing law. Section 93A-19 provides that an annual license fee per dwelling unit shall be established by the County Executive by written regulation “in an amount sufficient to pay the costs incidental to the administration of this Chapter and to make this Chapter self-sustaining.” Section 93A-21 authorizes the Executive Director to cause biennial inspections to be made of licensed rental facilities to determine whether they comply with all applicable laws; if the rental facility fails so to comply, the license “may be subject to revocation or other remedial action as determined by the Executive Director.” Section 93A-24 authorizes the Executive Director to revoke, deny or suspend licenses for failure to eliminate violations of applicable laws; persons aggrieved by the action of the Executive Director may file an appeal to the Commission which is required “by order, [to] either reverse, modify or affirm the action appealed and shall issue its findings, opinion, and order in writing and provide a copy thereof to the person aggrieved.” The Commission’s “final action” is appealable to the Circuit Court for Montgomery County. § 93A-25.

Article IV of the Act is entitled “Landlord-Tenant Obligations.” Section 93A-26 mandates that all leases or agreements for the occupancy of a dwelling unit in a rental facility located in Montgomery County must comply with a number of specified “[l]ease requirements”; included among such requirements is that leases be executed in duplicate (and thus be in writing); that they be for two-year initial terms, at the tenant’s option; that they contain no authorization for confession of judgment for rent due; and that such leases provide a guarantee that no retaliatory action will be taken by the landlord for any bona fide complaints made by the tenant to designated persons and agencies. Sections 93A-29 and 30 outline a number of “obligations” with which tenants and landlords are required to comply. Sections 93A-31 through 33 deal with complaints filed with the Executive Director of “defective tenancies” ² and lease agreement violations. The Executive Director is required by § 93A-34 to investigate all such complaints to determine “whether a violation of this Chapter has occurred or a defective tenancy exists”; if he makes an affirmative finding, he is required by § 93A-36 to undertake conciliation of the complaint, and to notify the Commission if his efforts are not successful. Section 93A-40 deals with hearings before the Commission to determine whether the provisions of the Article have been violated. Where the Commission finds that the landlord has caused a defective tenancy, § 93A-43(b) specifies that “all affected tenants” may be entitled to immediate termination of their leases, to return of their security deposits and of certain rental monies previously paid to the landlord, to an award of damages from the landlord sustained as a result of the defective tenancy, not to exceed $1000, and to an amount to be paid by the landlord equivalent to a reasonable expenditure adequate to obtain temporary substitute rental housing in the area. Where the Commission finds that a tenant has caused a defective tenancy, the landlord, by § 93A-43(c), may be entitled to terminate the lease, and to an award of damages from the tenant sustained as a result of the defective tenancy, not exceeding $1000. The Commission’s award of damages may be enforced by the landlord or tenant “in any court of competent jurisdiction, and any such court is authorized to grant judgment for such monies plus interest from the date of the award.” § 93A-43(c)(ii). Failure to comply with “any Commission order or summons” is made a misdemeanor, punishable by a fine up to $1000. § 93A-44(a). An appeal to the Circuit Court for Montgomery County from a “final action” of the Commission rendered under the Article is authorized by § 93A-45.³

In holding that the Council had the basic authority under its Home Rule Charter to enact local legislation regulatory of the apartment rental business and landlord-tenant relationships and activities within the County, the lower court placed reliance upon our decision in Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 252 A. 2d 242 (1969). That case, as here, involved an enactment of the County Council for Montgomery County under its Home Rule Charter, and we there extensively reviewed the history and purpose of Article XI-A of The Constitution of Maryland (the Home Rule Amendment) and the Express Powers Act, Maryland Code (1957, 1973 Repl. Vol.), Article 25A, and particularly § 5 thereof. We noted that § 2 of Article XI-A provides that the General Assembly, by public general law, shall “provide a grant of express powers for such County or Counties as may thereafter form a charter . . . ,” and that § 4 provides that after the adoption of a charter by any County, no public local law shall be enacted by the General Assembly for that County on any subject covered by the express powers granted as provided in § 2. Section 3 provides that after the adoption of a charter, a County Council:

“subject to the Constitution and Public General Laws of this State, shall have full power to enact local laws of said . . . County including the power to repeal or amend local laws of said . . . County . . . , upon all matters covered by the express powers granted . . ..”

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

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

Provided, that the powers herein granted shall only be exercised to the extent that the same are not provided for by public general law; provided, however, that no power to legislate shall be given with reference to licensing, regulating, prohibiting or submitting to local option, the manufacture or sale of malt or spirituous liquors.”

Summarizing the powers granted to the Council, we said in Greenhalgh, supra, 253 Md. at 160-62, 252 A. 2d at 246-47:

“The Council, having been given ‘full’ legislative power as specified by Art. XI-A, is also given statutory power to pass ‘all’ ordinances it deems expedient under the police power and the only limit on its powers is stated to be that such an ordinance cannot be inconsistent with the provisions of Art. 25A or the laws of the State, and the further provisos ‘that the powers herein granted shall only be exercised to the extent that the same are not provided for by public general law’ and that ‘no power to legislate shall be given with reference to licensing, regulating, prohibiting or submitting to local option, the manufacture or sale of malt or spirituous liquors.’

The purpose and intent of the legislature in supplying the implementation called for by Art. XI-A by the passage of the express powers act was to take from the legislature and give to the County the exclusive power to enact local laws, and the reasons for this delegation of power, commonly called home rule, were first to see as far as possible the log jam of unacted on measures in the late days of the legislative session in Annapolis which had caused passage of laws that had not received careful scrutiny or due consideration and, second, ‘to permit local legislation to be enacted solely by those directly affected by it without interference from representatives of other sections of the State.’ Scull. . . [v. Montgomery Citizens League, 249 Md. 271, 274, 239 A. 2d 92, 94 (1968).]

Gratification would not be afforded the purposes of home rule or the reasons which prompted it if the language of § 5 (S) of Art. 25A were not to be construed as a broad grant of power to legislate on matters not specifically enumerated in Art. 25A and the language of that section clearly indicates that such a construction is sound. See 4 Antieau, Local Government Law: County Law, § 31.05. Similar power had been given Montgomery County in 1945 by Ch. 947 of the Laws of 1945 which survived the adoption of the charter and now in general substance is § 2-23 of the Montgomery County Code (1965). See, Scull, pp. 283-284 of 249 Md.

A grant of power to pass laws for the peace, good government, health and welfare of the community is sometimes referred to as ‘a general welfare or general grant of power clause,’ 6 McQuillin, Municipal Corporations (3rd Ed.), § 24.43, and:

‘Under it ordinances may be passed which are necessary and beneficial, and they will be adjudged valid by the courts, provided they are reasonable and consonant with the general powers and purposes of the local corporation, and not inconsistent with the United States Constitution, treaties and statutes, and the laws and policy of the state.’

It is true, as McQuillin points out in § 24.45 that a number of courts have taken the view that a general grant of power to a municipal corporation authorizes only the carrying out of the specific powers delegated to it, but even if it be assumed that such a point of view is sound in the abstract the language of § 5 (S) negates the idea that this was its intent, for not only does it empower legislative action designed to carry out, exercise and implement enumerated powers,, it goes further to add that power is given ‘as well’ to ordain for the maintenance of peace, good government, health and welfare of the County. McQuillin notes in § 24.44 that ‘A general welfare or similar clause, granting extremely broad power to a municipal corporation, is liberally construed to accord a municipality wide discretion in the exercise of the police power,’ and he says:

‘The cases, indeed, reveal an increasing judicial inclination under such a clause to accord to municipal authorities wider discretion in the reasonable and non-discriminatory exercise, in good faith, of the police power in the public interest. While under the clause, or under the guise of it, personal and property rights recognized by general law and guaranteed by organic provisions cannot unreasonably be restrained, courts uniformly regard the clause as ample authority for a reasonable exercise, in good faith, of broad and varied municipal activity to protect the health, morals, peace and good order of the community, to promote its welfare in trade, commerce, industry and manufacture, and to carry out every appropriate object contemplated in the creation of the municipal corporation.’ ”

Our recognition in Greenhalgh of the expansive nature of the legislative powers conferred upon the Council by Article 25A, § 5 (S), coupled with our holding that, pursuant to such power, the Council could enact a fair housing law prohibiting racial and religious discrimination in the sale or rental of housing in the County is, we think, clear authority for the lower court’s ruling that the Council was empowered to enact local legislation regulatory of the apartment rental business and landlord-tenant relationships in Montgomery County. See also, McBriety v. City of Baltimore, 219 Md. 223, 232-233, 148 A. 2d 408, 414 (1959). Indeed, the landlords do not directly challenge the basic power of the Council to legislate in this field; they maintain, instead, that in enacting Chapter 93A, the Council has illegally exercised its power in a number of instances.⁴

I.

The Power of the Council to Change the Common Law

Contending that the Council does not possess the power to revise, amend or repeal the common law of Maryland, the landlords seek to invalidate those provisions of the Act which are concededly in derogation of the common law, viz.:

(1) that all leases be executed in duplicate, and a copy provided to the tenant;

(2) that all leases be offered for an initial two-year term at the tenant’s option, unless a reasonable cause exists for offering a different initial term;

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

(4) that all leases guarantee a tenant reasonably attempting to enforce his rights protection from retaliatory action by the landlord;

(5) that no lease authorize the landlord to take possession of the premises or the tenant’s personal property therein without formal legal process;

(6) that all leases permit the tenant to terminate the lease, on thirty days’ written notice and payment of a reasonable charge not to exceed two months’ rent, due to an involuntary change of employment from the Washington metropolitan area or for other reasonable cause beyond the tenant’s control;

(7) that the County Attorney may, on referral of a complaint by the Commission, bring an action to preserve the status quo pending resolution of the complaint.

The landlords reason that Article 5 of the Maryland Declaration of Rights expressly guarantees to the inhabitants of this State the common law of England, subject to revision, amendment or repeal only by the State Legislature; that the Declaration of Rights and the Maryland Constitution are to be interpreted as one instrument; that Article XI-A, § 3 of the Maryland Constitution grants charter home rule counties the power to enact local laws, subject to the Constitution; that the Council’s power to enact local laws is, therefore, subject to the limitation that such local laws may not amend, revise or repeal the common law, that power expressly being reserved to the State Legislature.

Article 5 of the Declaration of Rights provides in pertinent part:

“That the Inhabitants of Maryland are entitled to the Common Law of England . . . and to the benefit of such of the English statutes as existed on the Fourth day of July, . . . [1776] . . . except such as . . . may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.. . .”

We have previously considered the intent of the framers in adopting the common law as a part of the law of this State. In Lickle v. Boone, 187 Md. 579, 582, 51 A. 2d 162, 163 (1947), we noted:

“In 1776 the framers of the Constitution of Maryland adopted the common law as a part of the law of this State. The provision in the Declaration of Rights ‘that inhabitants of Maryland are entitled to the Common Law of England’ referred to the mass of the common law as it existed in England at that time, or as it prevailed in Maryland either practically or potentially, except such portions thereof as were inconsistent with the spirit of the Constitution and the nature of our new political institutions. Md. Declaration of Rights, Art. 5; State v. Buchanan, 5 Har. & J. 317, 358, 9 Am. Dec. 534.”

Apparent from our previous discussion of Article XI-A of the Constitution is our conclusion that its underlying purpose is to share with the counties, within well delineated limits, the legislative powers formerly reserved to the General Assembly.⁵ That purpose would be substantially frustrated by the construction urged by the landlords. The body of English common law referred to in Article 5 of the Declaration of Rights undoubtedly impinges on many areas now recognized by the Express Powers Act as proper subjects of local legislation.⁶ The General Assembly has the power to revise the common law but no power to enact local legislation within the area delegated by the Express Powers Act to charter home rule counties. Article XI-A, § 4. If, conversely, charter home rule counties have the power to enact local legislation, but no power to revise the common law, local legislation which necessitated any revision of the common law would be impossible. As indicated, the purpose of home rule was to share the legislative power with the counties, not to diminish or extinguish it. The construction proposed by the landlords, so obviously contrary to the intent of the Constitutional drafters, must be rejected. We think implicit within the grant of “full power” to chartered counties contained in § 3 of Article XI-A is the grant of the power formerly reserved by the Declaration of Rights to the State Legislature, to alter, revise, or amend the English common law within the express powers granted. To the extent that such a grant by the Constitution is inconsistent with Article 5 of the Declaration of Rights, the Constitution must prevail. Baltimore v. State, 15 Md. 376 (1860); Anderson v. Baker, 23 Md. 531 (1865).

We thus conclude that the Council had the authority, within the limits of the powers granted to it by Article XI-A and the Express Powers Act, to enact Chapter 93A containing provisions in derogation of the common law. In so holding, we have considered the case of Genusa v. City of Houston, Tex. Civ. App., 10 S.W.2d 772 (1928), relied upon by the landlords; we do not, however, find it persuasive and decline to follow it in this State.

II.

Conflict Between Chapter 93A and the Public General Laws of the State

The lower court, in applying the constitutional mandate of Article XI-A, §3 — “that in case of any conflict between said local law and any Public General Law now or hereafter enacted the Public General Law shall control” — held that several provisions of Chapter 93A were in conflict with State law and were, therefore, null, void and of no effect. Invalidated on these grounds were provisions concerning retaliatory eviction, written leases, two-year lease terms, and judgments by confession.

The express language of the Constitution, Article XI-A, § 3, is clear and unambiguous; its proper application, however, has often proved difficult. In City of Baltimore v. Sitnick & Firey, 254 Md. 303, 317, 255 A. 2d 376, 382 (1969), Judge Finan, for the Court, comprehensively reviewed our previous decisions on the question of conflict between a local law and a public general law within the meaning of Article XI-A, giving this succinct summary:

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

In Sitnick, we reasoned that Baltimore City, under the powers granted it under Article XI-A, could “supplement” the Statewide minimum wage law by a city ordinance establishing minimum wage standards higher than those set by state legislation and could include within the provisions of the ordinance businesses exempted from the state legislation. We noted, 254 Md. at 324-25, 255 A. 2d at 386, that:

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

'fhe situation before us, unlike Sitnick, (and many of the cases discussed therein) does not involve the direct conflict inherent in a dual regulatory scheme, since in the instant case, Montgomery County has attempted to comprehensively regulate the apartment rental business and landlord-tenant affairs, but the State has not. The theory of permissible “supplementation” of State law by local ordinance is, therefore, inapposite.

Manifestly, whether a conflict exists between Chapter 93A and the public general law concerning real property can only be determined by reviewing the provisions of each in light of the controlling precedents.

(a) Retaliatory Eviction

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

The lower court held that § 93A-26(o) was not in conflict with any public general law. However, it invalidated §§ 93yL-28 and 93A-39 as in conflict with the “summary eviction” law contained in Article 53 of the Maryland Code, and further decreed § 93A-41, authorizing the County Attorney to institute a civil action to preserve the status quo during the pendency of a complaint, “invalid to the extent that it purports to permit (a) any intervention in, or defense to any possessory action brought under the provisions of Article 53 ... ; or (b) an action to enjoin, prohibit, or otherwise interfere with any such possessory action.”

The summary action for repossession claimed to invalidate these provisions is now contained in Maryland Code (1957, 1973 Repl. Vol.), Article 21, § 8-402(b).⁸ It provides, in essence, that the District Court shall order restitution of leased premises to the landlord if it finds that the tenant, after receiving the notice, refused to vacate at the expiration of the lease.

The landlords, relying heavily upon Heubeck v. City of Baltimore, 205 Md. 203, 107 A. 2d 99 (1954), maintain that Article 21, § 8-402(b), a general public law, expressly permits a landlord, whatever his motives, to evict a tenant after due notice and the expiration of the lease; that Chapter 93A, a local law, prohibits such eviction where it can be shown to be retaliatory; and that, therefore, a conflict exists within the meaning of the Home Rule Amendment and all sections of Chapter 93A dealing with retaliatory eviction must fall.

The Council seeks to avoid the clear conflict posited by the landlords, accepting the landlord’s interpretation of the summary eviction law, but proffering a different interpretation of Chapter 93A. Sections 93A-28 and 93A-39, it maintains, merely create a “local cause of action” exposing a landlord to administrative, and ultimately, criminal sanctions if such eviction is later found by the Commission to be in retaliation for the tenant’s exercise of a legal right. In the alternative, the Council argues that the summary eviction statute is procedural and not in conflict with a local law granting substantive rights, citing Warren v. City of Philadelphia, 382 Pa. 380, 115 A. 2d 218 (1955) and Wagner v. Mayor and Municipal Council, 42 N. J. Super. 193, 126 A. 2d 71 (1956), rev’d on other grounds, 24 N. J. 467, 132 A. 2d 794 (1957). Lastly, the Council seeks to bolster the validity of the retaliatory eviction provisions by reference*' to Maryland Code Article 21, § 8-213.1, effective July 1, 1973, expressly prohibiting retaliatory evictions in Montgomery County.

We think the issue was substantially settled by our decision in Heubeck, supra. That case invalidated a Baltimore City rent control ordinance which provided that so long as a tenant remained in possession and paid the maximum rent permitted under the ordinance, a landlord could not seek to recover possession of the premises even if the lease had expired. We there held, 205 Md. at 210-11, 107 A. 2d at 103:

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

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

Nor can we agree that the summary eviction statute is merely procedural. The summary eviction statute, which has been in force and relied upon in Maryland for over a century, Messall v. Merlands Clubs, Inc., 244 Md. 18, 222 A. 2d 627 (1966) has during that time provided some procedural details, Darling Shaps Delaware Corp. v. Baltimore Center Corp., 191 Md. 289, 60 A. 2d 669 (1948), Benton v. Stokes, 109 Md. 117, 71 A. 532 (1908), but it also, we think, insures the substantive right to such a remedy. It, therefore, cannot be modified by a conflicting local law. This reasoning is implicit in our holding in Heubeck.

Nor do we think that a contrary result is mandated by Article 21, § 8-213.1, effective July 1, 1973, expressly prohibiting retaliatory evictions in Montgomery County. That section, applicable only in Montgomery County, does not purport to amend or modify the summary eviction procedure contained in § 8-204(b) so as to obviate a conflict between the latter section and the local ordinance.⁹

We, therefore, affirm that part of the lower court’s decree invalidating §§ 93A-28 and 93A-39. Since the public general laws as we have interpreted them, grant a landlord a legal right to evict, whether in retaliation or otherwise, the County may not require him to agree not to do so. Therefore, § 93A-26(o) is also invalid.

(b) Two-Year Lease Terms

Sections 93A-26(b) and 93A-27(c) require that all leases entered into after the effective date of Chapter 93A be offered for an initial term of two years, at the tenant’s option, unless a reasonable cause exists for offering an initial term other than two years. The lower court invalidated these two sections, noting in its opinion:

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

In the Court’s judgment the requirement here in subsection (b) making it mandatory that they be offered for a specific period of time, two years, is a conflict of a direct nature.”

After a careful reading of the provisions referred to (now contained in Article 21, § 8-402(b)(l), (4), and (5), see n. 8, supra), we disagree. Article 21 provides a procedure whereby a landlord may recover possession of property leased “for any definite term or at will.” It does not create the different types of tenancies, but merely recognizes those created by common law. As noted supra, Part I, the Council may alter the common law and a conflict with the common law will not invalidate otherwise proper local legislation. Unlike the retaliatory eviction provisions, nothing in Chapter 93A conflicts with the procedure established by Article 21, § 8-402(b), nor deprives anyone of a right intended to be secured by that public general law. We think something more than the mere mention of the different types of leaseholds is required to show the intent of the General Assembly to establish each of those tenancies beyond further regulation by local governments.

(c) Written Leases

The lower court also declared invalid, as conflicting with State law, § 93A-26(a) which requires that leases be executed in duplicate and a copy provided to the tenant at the time of execution. Again, in our opinion, the lower court was correct. This provision is in conflict with the provisions of Art. 21, §§ 2-101 and 2-102 of the recently adopted Statute of Frauds, which provides:

“Section 2-101 — Certain estates created by parol are estates at will.

“All corporeal estates, leasehold or freehold, or incorporeal interests in land made or created by parol and not in writing and signed by the party so making or creating the same, or his agent lawfully authorized by writing, shall have the force and effect of estates or interests at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect.”

“Section 2-102 — Three-year exception.

“Section 2-101 above is not applicable to leasehold estates not exceeding the term of three years from the making thereof.”

It is clear to us that oral leases, valid at common law, are recognized and permitted by the public general law and hence may not be prohibited by the Council in view of Sitnick and Heubeck, supra.

(d) Confessed Judgment for Rent Due

Section 93A-26(g) provides that a lease shall “contain no authorization for confession of judgment for rent due.” The lower court found this provision in conflict with Article 52, § 52 of the Maryland Code; the matter is now controlled by Maryland District Rule (MDR) 645.¹⁰

MDR 645 details the procedure by which the clerk of the District Court may enter a judgment by confession. That rule, pursuant to the authority vested in us by § 18A of Article IV of the Constitution, was duly approved and adopted by this Court on June 28, 1971; subsequent amendments to MDR 645 were approved and adopted on May 8, 1972. It is clearly a rule of procedure having “the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.” Article IV, § 18A. See also, Maryland Code (1957,1973 Repl. Vol.), Article 26, § 25.

We need not decide whether MDR 645 is the equivalent of a general public law within the meaning of the Home Rule Amendment, for, assuming arguendo that it is, we do not perceive a conflict. That Rule merely details the procedure applicable when a confessed judgment is properly consented to by the defendant. We see nothing in the Rule to deprive home rule counties of the right to regulate the areas in which such consent can be validly given.

III.

Exercise of Judicial Power by an Administrative Agency

The landlords contend that the lower court was correct in finding certain provisions of Chapter 93A unconstitutional as vesting in an administrative body judicial powers reserved exclusively to the courts by Article IV, § 1 of the Maryland Constitution, which provides in pertinent part:

“The Judicial power of this State shall be vested in a Court of Appeals, and such intermediate courts of appeal, as shall be provided by law by the General Assembly, Circuit Courts, Orphans’ Courts, such Courts for the City of Baltimore, as are hereinafter provided for, and a District Court; all said Courts shall be Courts of Record,. . ..”

The powers conferred on the Commission found by the lower court to be violative of Article IV, § 1 were these:

(1) to impose a civil penalty not exceeding $1,000;

(2) to award money damages not exceeding $1,000;

(3) to award payments for temporary substitute housing;

(4) to terminate leases;

(5) to order repairs;

(6) to order the return of security deposits and rental monies paid.¹¹

The Council contends that these powers are not judicial powers reserved to the Courts, but rather are adjudicatory and quasi-judicial functions which constitutionally can be delegated to an administrative agency. The difference between the position of the Council and that of the landlords is more than a mere semantic one; it involves concepts that go to the essence of the still developing law of administrative agencies.

Seldom has the precise issue now before us — ie., the limits of adjudicatory powers which can, within the Maryland Constitution, be conferred on an administrative agency — been adjudicated in this State. In Solvuca v. Ryan & Reilly Co., 131 Md. 265, 101 A. 710 (1917), we upheld the then newly enacted Workmen’s Compensation Act. The basic scheme of that Act created a commission to hold hearings, with the power to compel the appearance of witnesses and the production of documents (enforceable by the Circuit Court) and determine compensation for injured workmen in certain circumstances according to the schedule contained in the Act. Employers were required to secure the payment of compensation, as provided in the Act, in one of three ways: (!) by insuring through the state accident fund; (2) insuring through an authorized insurance company; (3) furnishing the commission with satisfactory proof of ability to pay such compensation and depositing a sufficient amount with the commission. Appeal was allowed to the circuit courts and then to the Court of Appeals. In finding no constitutionally impermissible delegation of judicial power, we quoted with approval from Borgnis v. Falk Co., 147 Wis. 327, 358, 133 N. W. 209, 219 (1911):

“. . . [the Commission administering the Workmen’s Compensation law] is an administrative body or arm of the government, which in the course of its administration of a law is empowered to ascertain some questions of fact and apply the existing law thereto, and in so doing acts quasi-judicially; but it is not thereby vested with judicial power in the constitutional sense.”

We then adopted a similar position, holding, 131 Md. at 284, 101 A. at 716:

“The Workmen’s Compensation Law, which was passed in the exercise of the police power of this State, creates a commission known as the State Industrial Accident Commission to administer the provisions of the Act. In the discharge of its duties and the exertion, of its powers it is required to exercise judgment and discretion, and to apply the law to the facts in each particular case, but it is clear that the Legislature never intended to constitute the Commission a Court, or to confer upon it the judicial power of the State within the meaning of the constitutional provision referred to".

In Mattare v. Cunningham, 148 Md. 309, 129 A. 654 (1925), we reiterated our holding in Solvuca that the Workmen’s Compensation Act did not violate Article IV, § 1, further noting that the Commission created thereunder had no power to enforce its awards.

Subsequent cases have involved less direct challenges to the exercise of administrative power, by questioning the consequences which flow from granting “quasi judicial” powers to various boards. In Dal Maso v. Board of County Commissioners, 182 Md. 200, 34 A. 2d 464, 466 (1943), in the course of deciding that the actions of the Montgomery County Commissioners sitting as the District Council, were not res judicata, we noted:

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

Cases subsequent to Dal Maso have tempered but not overruled that holding. In Hecht v. Crook, 184 Md. 271, 277, 40 A. 2d 673, 675 (1945), decided two years after Dal Maso, we said:

“This court pointed out in the recent case of Dal Maso v. County Comm's, 182 Md. 200, 34 A. 2d 464, that the latter term [(quasi judicial)] does not imply any power in the Legislature to clothe administrative boards with judicial authority. Nevertheless, the fact remains that innumerable controversies are decided today, by boards of legislative creation, of a character that traditionally fell within the scope of judicial inquiry.”

Heaps v. Cobb, 185 Md. 372, 379, 45 A. 2d 73, 76 (1945) noted in a similar vein:

“Administrative boards in general may be said to act in a quasi judicial capacity insofar as they have the duty to hear and determine facts and, based on them, to make decisions. . . . the boards, however, are not clothed with judicial authority, which the legislature has no power to confer upon them, Article 4, Md. Constitution; Dal Maso v. Board, etc., 182 Md. 200, 34 A. 2d 464, and their decisions, when they impair personal or property rights, are not irreviewable. The legislature is without authority to divest the judicial branch of the government of its inherent power to review actions of the administrative boards shown to be arbitrary, illegal or capricious, and to impair personal or property rights; but the courts are likewise without authority to interfere with any exercise of the legislative prerogative within constitutional limits, or with the lawful exercise of administrative authority or discretion.”

These and other cases led the court in Schultze Montgomery County Planning Board, 230 Md. 76, 80, 185 2d 502, 504 (1962) to conclude that the Planning Board’s í> tí duties of determining facts necessitated its exercising a quasi-judicial function, and to note: “Many cases since Dal Maso v. County Comm’rs, 182 Md. 200, 34 A. 2d 464 (1943), have made it clear that notwithstanding anything therein said, administrative bodies or officers may exercise such power.” The holding in Schultze was approved in Hyson v. Montgomery County Council, 242 Md. 55, 64, 217 A. 2d 578, 584-85 (1966), that case identifying the quasi-judicial function as . . resolv[ing] disputed questions of adjudicative facts (as contradistinguished from legislative facts or judicial action) concerning particular parties.” By the time of Public Service Commission v. Hahn Transportation, Inc., 253 Md. 571, 253 A. 2d 845 (1969), we no longer found it necessary to distinguish Dal Maso, saying at 253 Md. at 580, 253 A. 2d at 850:

“Beyond question the Public Service Commission exercises quasi-judicial functions when on a record before it, consisting of pleadings, . . . exhibits and testimony which later may undergo judicial scrutiny, it must after oral and written arguments determine adjudicative facts and choose the applicable law to produce a decision.”

This gradual relaxation of the tension between Article IV, § 1 and the practical exigencies of administrative bodies has been largely justified by reservation of ultimate authority in the courts. In Burke v. Fidelity Trust Co., 202 Md. 178, 187-89, 96 A. 2d 254, 260 (1953), we rejected the contention that the Bank Commissioner, empowered in certain bank mergers to effect a final and binding valuation of dissenting stockholders’ shares (a function previously reserved to the courts), was thereby vested with judicial power. We there noted: “The substitution of compulsory arbitration and administrative review for a judicial valuation is not beyond the constitutional power of the legislature, so long as there is an opportunity for court review to pass on the legality and due process aspects of the award.” This theory is more fully explained in the historical development of administrative law so eloquently articulated by Chief Judge Hammond in State Insurance Commissioner v. National Bureau of Casualty Underwriters, 248 Md. 292, 298-300, 236 A. 2d 282, 285-87 (1967):

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

‘In several states, as many as sixty or seventy independent agencies make rules and adjudicate contested cases affecting in varied ways the lives, health, fortunes, safety, labor, and the business of millions of citizens. At a conservative estimate [as of 1965], more than 2000 state administrative agencies are exercising legislative and judicial functions.’ ”

Judge Hammond then pinpointed the essential concern of those disturbed by the power delegated to administrative agencies:

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

The checks on administrative power have been supplied. 1 Davis, op. cit. § 1.09, pp. 68-69, says that in the establishment and control of administrative agencies in recent decades:

‘* * * the principle that has guided us is the principle of check, not the principle of separation of powers. We have had little or no concern for avoiding a mixture of three or more kinds of power in the same agency; we have had much more concern for avoiding or minimizing unchecked power. The very identifying badge of the modern admin istrative agency has become the combination of judicial power (adjudication) with legislative power (rule making). But we have taken pains to see that the agencies report to and draw their funds from our legislative bodies, that the personnel of the agencies are appointed and reappointed by the executive, and that the residual power of check remains in the judiciary.’ ”

Judge Hammond then noted the response of this Court to the exercise of quasi-judicial power by administrative agencies:

“The courts have been alert to exercise their residual power to restrain improper exercises of administrative powers whether judicial or legislative in nature. If the legislature has not expressly provided for judicial review, a court will ordinarily utilize its inherent powers to prevent illegal, unreasonable, arbitrary or capricious administrative action. In Heaps v. Cobb, 185 Md. 372, 379, this Court said: ‘The legislature is without authority to divest the judicial branch of the government of its inherent power to review actions of administrative boards shown to be arbitrary, illegal or capricious, and to impair personal or property rights; * * and then quoted the opinion in Hecht v. Crook, 184 Md. 271, 280:

‘Courts have the inherent power, through the writ of mandamus, by injunction, or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion * * ”

Relying upon the clear rationale of the State Insurance Commissioner case, the Council contends that Montgomery

County properly determined that the well-being of all its citizens would best be served by an administrative forum which, within certain limits regulates the apartment rental business and landlord-tenant relationships within the County. It was recognized, the Council asserts, that the problems currently existing in the field could within the precise language employed by us in State Insurance Commissioner, “be solved or settled more expeditiously, effectively, cheaply and simply by administrative processes than by traditional executive, legislative and judicial processes, because the blending of powers in one agency. . . produces an expertise and a superior ability both correctly to evaluate specialized questions and to supply correct answers . . .” 248 Md. at 299, 236 A. 2d at 286. The constitutional doctrine of separation of powers is, generally speaking, not applicable to local government, Barranca v. Prince George’s County, 264 Md. 562, 287 A. 2d 286 (1972) and as the Maryland cases now indicate, the existence of that doctrine does not itself inhibit the delegation to an administrative agency of a blend of executive or legislative powers with powers judicial in nature; the determining factor is not so much the specific powers granted to the administrative agency, but rather the relationship of the courts to the exercise of that power. See Davis, Administrative Law § 2.13 (1970 Supp.); Brown, “Administrative Commissions and the Judicial Power,” 19 Minn. L. Rev. 261 (1935); 1 Am. Jur. 2d Administrative Law § 154 (1962).

Despite the preservation of judicial powers in the courts through the “theory of checks,” as adopted by this Court in the State Insurance Commissioner case, the landlords contend that the Commission has been delegated judicial power to effect the remedies expressly provided in the Act. They refer to five factors as indicia of judicial power: (1) the power to make a final rather than an initial determination; (2) the power to make binding judgments; (3) the power to affect the personal or property rights of private persons; (4) the exercise of power formerly held by a court; and (5) the fashioning of remedies which are judicial in nature.

As to the first of these objections, it is clear that the Commission’s determinations are not final, but always open to judicial review by an aggrieved party. In Johnstown Coal & Coke Co. v. Dishong, 198 Md. 467, 472-74, 84 A. 2d 847, 850 (1951), we held that “[t]he law is settled that. . . questions of fact may be finally determined by an administrative agency” so long as the courts retain their inherent power to assess the sufficiency of evidence to support such factual conclusions and to review the actions of administrative agencies which are illegal, arbitrary, unreasonable or which impair personal or property rights. Clearly, with the exception hereinafter noted, the provisions for judicial review provided in Chapter 93A are sufficient under the Dishong standard.¹²

Second, the Commission does not make “binding judgments” of the kind that denote strictly judicial power, see, 1 Am. Jur. 2d Administrative Law §§ 170, 173 (1962); the Commission has no power to force compliance with its orders. Court action, instituted by the County Attorney or the parties before the Commission, is always required.

Third, while the Commission obviously has the power to affect property rights of private persons, both landlords and tenants, such power is delegated on the basis of the declared public interest in landlord-tenant relationships. 1 Am. Jur. 2d Administrative Law § 171 (1962). Section 93A-1 contains the legislative finding of public interest similar to that which justified the initiation of an administrative procedure affecting the rights of private employers and employees (the Workmen’s Compensation Act) approved by us in Branch v. Indemnity Insurance Co., supra.

Fourth, the fact that the administrative procedure created by Chapter 93A permits the agency to adjudicate some matters formerly decided by the courts is not determinative. Indeed, this was in effect the situation approved by us in Burke v. Fidelity Trust Co., supra, and in Solvuca v. Ryan & Reilly Co., supra, and is consistent with powers granted innumerable administrative agencies functioning in this State.

Fifth, and most strenuously pressed by the landlords, is the asserted fact that the remedies entrusted to the Commission’s discretion are remedies exclusively reserved to the courts. Consistent with our decisions, hereinbefore set forth, we think the power to fashion such remedies, viewed in the context of Chapter 93A, is more properly classified as quasi-judicial, or as described in Hyson v. Montgomery County Council, supra, 242 Md. at 62, 217 A. 2d at 583, a power “not purely and completely judicial... in nature, but havfing] qualities or incidents resembling . . . [such power].”

Courts in other jurisdictions have recognized that administrative agencies, if they are to effectively fulfill the purposes for which they were created, may constitutionally be vested with broad remedial powers. In Jackson v. Concord Co., 54 N. J. 113, 126, 253 A. 2d 793, 800 (1969), involving an administrative agency charged with enforcement of the State’s antidiscrimination law, the court sustained the agency’s award of compensatory damages for the economic loss suffered by the person discriminated against, stating:

“Initially, we may say that, at this advanced date in the development of administrative law, we see no constitutional objection to legislative authorization to an administrative agency, to award, as incidental relief in connection with a subject delegable to it, money damages, ultimate judicial review thereof being available.”

In Massachusetts Commission Against Discrimination v. Franzaroli, 357 Mass. 112, 256 N.E.2d 311 (1970), a statutory provision in an antidiscrimination law was approved which empowered the administrative agency to award damages not exceeding $1,000 for expenses incurred by the complainant for obtaining alternative housing or space, for storage of goods and effects, for moving and for other costs actually incurred by him. To like effect, see Williams v. Joyce, 4 Or. App. 482, 479 P. 2d 513 (1971) and Zahorian v. Russell Fitt Real Estate Agency, 62 N. J. 399, 301 A. 2d 754 (1973). In State v. Bergeron, 290 Minn. 351, 187 N.W.2d 680 (1971), the court approved an administrative order which compelled cancellation of a transfer of property made in violation of the State’s antidiscrimination statute and required that the property be offered for sale to the complainant. The Supreme Court of Washington, in Rody v. Hollis, 81 Wash. 2d 88, 500 P. 2d 97 (1972), upheld an administrative award of damages for discrimination in a housing transaction; in approving the granting of administrative discretion to fix the amount of the award up to $1,000, the court said:

"All that can, and should, be done is to define the conduct sought to be punished, or the injury to be compensated, set out the normally acceptable limits of punishment or compensation, and then allow the adjudicative body to determine* the appropriate punishment or compensation by applying general principles of morality and traditional concepts of justice.” (500 P. 2d at 100).

In Ford v. Environmental Protection Agency, 9 Ill. App. 3d 711, 292 N.E.2d 540 (1973), the court approved an order of the Pollution Control Board assessing a $1,000 civil penalty against the owner of a solid refuse disposal site found to be in violation of statute and the rules of the agency. There, the law' authorized the Board to impose such monetary penalties not to exceed $10,000. In rejecting the argument that the power to impose such a civil penalty was a judicial power which could not be conferred upon an administrative agency, the court stated, 292 N.E.2d at 544 that “an administrative officer or agency may penalize, without offending the constitution when the penal function is incidental to the duty of administering the law.” The court said:

“Although the essentially legislative and judicial powers cannot be delegated, we believe it implicit in the authorities that where direct or immediate judicial action is inexpedient or impractical, quasi-judicial functions may be conferred upon and exercised by an administrative agency, provided the laws conferring such powers are complete in their content; are designed to serve a general public purpose; are such as to require a consistent and immediate administration; and further provided that all administrative actions are subject to judicial review.” (292 N.E.2d at 543-44).

While administrative impositions of civil penalties are commonplace within the State and Federal government structures (see 1 Davis, Administrative Law, § 2.13 (1959), the 1970 Supplement thereto, and cases cited) not all states agree that administrative agencies may constitutionally be empowered to impose civil monetary penalties for violations of law or of the rules of the agency. See, for example, State ex rel. Lanier v. Vines, 274 N. C. 486, 164 S.E.2d 161 (1968) holding unconstitutional, as a delegation of judicial power, authority vested in the Commissioner of Insurance to determine the amount of a civil monetary penalty; and Broadhead v. Monaghan, 238 Miss. 239, 117 So. 2d 881 (1960), holding that in the absence of a definite legislative standard, an administrative agency could not constitutionally be vested with discretionary power to impose a tax delinquency penalty of not less than 10% nor more than 25% of the delinquent amount. Compare Wycoff Co. v. Public Service Commission, 13 Utah 2d 123, 369 P. 2d 283 (1962), upholding the imposition of a civil penalty assessed by the Public Service Commission under a statute authorizing a penalty of not less than $500 nor more than $2,000 for each statutory violation. See also 1 Am. Jur. 2d Administrative Law, 8 173.¹³

We think the grant of remedial powers to the Commission to award money damages, terminate leases, order repairs and the return of security deposits and rental monies paid, and to award funds for temporary substitute housing does not constitute an invalid delegation of judicial power to an administrative agency in violation of the Maryland Constitution. As to the granting of these powers, we are in full agreement with the Council’s observation that “(T)he pivotal point in determining the permissible extent of delegable adjudicatory functions is not merely their inherent nature but the context of the regulatory scheme and the enforcement procedure provided by the administrative process.” VVe think it plain that the function of the Commission is primarily administrative and the power vested in it to hear and determine controversies involving landlords and tenants is granted only as an incident to its administrative duty; in other words, the Commission’s function is not primarily to decide questions of legal rights between private parties, but is merely incidental, although reasonably necessary, to its regulatory powers. See 1 Am. Jur. 2d Administrative Law § 160.

The power vested in the Commission by § 93A-9(c) to enforce the provisions of the Act by imposing a civil penalty not exceeding $1,000 “for the violation of any provision of this Chapter” is far more elastic than its power to award money damages to a landlord or tenant for actual loss suffered by reason of the Commission’s finding of a defective tenancy. Indeed, it is readily apparent that the Commission has unrestricted, unbridled discretion in fixing the amount of the penalty, within broad limits, up to $1,000 without regard to the nature or gravity of the violation. While we conclude that the authority to impose a civil monetary penalty is not a power beyond constitutional delegation to an administrative agency, we think the discretion vested in the Commission to fix the amount of the penalty in any amount up to $1,000, for any violation of the Act, in the total absence of any legislative safeguards or standards to guide it in exercising its discretion, constitutes an invalid delegation of legislative powers and otherwise violates due process of law requirements. See Theatrical Corp. v. Brennan, 180 Md. 377, 24 A. 2d 911 (1942), involving a statute which prohibited the holding of various types of public entertainment in Baltimore City without first paying a fee between $5 and $100 as set by the Police Commissioner; we there held the statute invalid because it did not provide any standard to control the Commissioner’s discretion, there being nothing in the nature of the various types of public entertainment to provide meaningful guidance to the Commissioner or a means of reviewing alleged abuses of his discretion. See Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1, 6-7. We recognize, of course, that the trend of cases is toward greater liberality in permitting grants of discretion to administrative officials, particularly in the fields of public health and safety, in order to facilitate the administration of the laws as the complexity of governmental and economic conditions increase. Marek v. Board of Appeals, 218 Md. 351, 146 A. 2d 875 (1958); Pressman v. Barnes, 209 Md. 544, 121 A. 2d 816 (1956); Givner v. Commissioner of Health, 207 Md. 184, 113 A. 2d 899 (1954). We hold here that because of the complete lack of any legislative safeguards or standards, the grant of unlimited discretion to the Commission to fix civil penalties in any amount up to $1,000 is illegal. No meaningful judicial review of the Commission’s assessment of such penalties would appear possible in light of the unrestricted nature of the discretion sought to be vested in the Commission. In this connection, we note that judicial review of final actions of the Commission shall be by “appeal to the Circuit Court for Montgomery County in accordance with the Maryland Rules of Procedure for a review of such action.” §§ 93A-25 and 93A-45. Undoubtedly, the Council contemplated that review of the Commission’s final action would be in accordance with Chapter 1100 of the Maryland Rules, Subtitle B, regulating appeals from administrative agencies, and authorizing the court to “affirm, reverse or modify the action appealed from, remand the case to the agency for further proceedings, or dismiss the appeal as now or hereafter provided by law.” Rule B12. While neither the Act nor the Rules explicitly specify the substantive test to be applied in reviewing agency determinations, and the Administrative Procedure Act (APA), Maryland Code, Article 41, §§ 244-256A, is not by its terms applicable to county administrative agencies, Urbana Civic v. Urbana Mobile, 260 Md. 458, 272 A. 2d 628 (1971), we think the Council intended that the standard of judicial review be reconciled with that contained in § 255 (g) (l)-(5), inclusive, of the APA. See County Fed. S. & L. v. Equitable S. & L., 261 Md. 246, 274 A. 2d 363 (1971). Section 255(g), insofar as pertinent, provides:

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

(1) In violation of constitutional provisions; or

(2) In excess of the statutory authority or jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted;. . . .”

We thus Conclude that, with the exception of the power to impose civil monetary penalties, all the remedial powers vested in the Commission by Chapter 93A are legal and constitutional.¹⁴

IV.

Due Process

(a) Hearing

The lower court, by its order of October 6, 1972, voided § 93A-24(c) which provided that in the event the Executive Director revoked, denied or suspended a license to operate a rental facility, the aggrieved party could appeal to the Commission on Landlord-Tenant Affairs, and further provided that upon such appeal, the Commission may hold a hearing. Relying upon Albert v. Public Service Commission, 209 Md. 27, 120 A. 2d 346 (1956), the lower court voided § 93A-24(c), and related provisions, noting:

“The Court considers that the requirements of procedural due process are violated by this section of the statute. We consider that it is an important element of our law that there be afforded procedural due process in connection with the revocation of a license involving, in this case a property right; namely, the right of the landlord to operate an apartment facility.”

By the court’s further order of October 17, 1972, made after consideration of the parties’ stipulation as to severability, it was decreed that Article III of Chapter 93A (“Licensing of Rental Facilities”) was void in its entirety, “the licensing procedures and functions contained therein being wholly ineffective without the provisions of Section 93A-24” which the court previously declared void.

Subsequent to the lower court’s order, and prior to the briefing of this appeal, Chapter 93A was amended, effective November 28, 1972. Among the provisions amended was § 93A-24(c); as amended, the section now provides that upon an appeal from the Executive Director to the Commission, “the Commission shall conduct a hearing at which time an opportunity to be heard shall be given to the person aggrieved.”

It is, of course, well settled that “a change in the law after a decision below and before final decision by the appellate Court will be applied by that Court unless vested or accrued substantive rights would be disturbed or unless the legislature shows a contrary intent.” Yorkdale v. Powell, 237 Md. 121, 205 A. 2d 269 (1964). Section 93A-24(c), as amended, making the right to a hearing absolute, and not discretionary with the Commission, fully comports with procedural due process requirements. The landlords make no contention to the contrary, and accordingly, we shall vacate that part of the lower court’s decree invalidating Article III in its entirety.

(b) Landlord’s Right of Entry

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

“contain a provision requiring that the landlord exercise his right to access to any dwelling unit, after due notice to the tenant, and without objection from the tenant, in order to make necessary repairs, decorations, alterations, or improvements, supply services only by mutual agreement during normal business hours except in an emergency; to exhibit the dwelling unit to prospective purchasers, mortgagees, or tenants only during normal business hours, including weekends, except as otherwise may be agreed upon by the parties; and providing that nothing in this subsection shall prevent the landlord from entering any leased premises in an emergency situation or, after due notice, when the landlord has good cause to believe the tenant may have damaged the premises or may be in violation of this Chapter.”

The lower court refused to invalidate this section, and, in its opinion, noted that it did not consider the provision arbitrary and capricious. Nor do we.

The landlords’ objection to the section appears to be that they should not be forced to wait until emergency conditions exist before entering an apartment to make necessary repairs without the consent of the tenant; and (2) that a landlord should be able to make routine inspections, whether or not he has cause to believe that damage has been done or that violations of Chapter 93A exist.

The objections of the landlords are more properly addressed to the legislative body. The wisdom of § 93A-26(s) is not, of course, a matter of our concern, and we find nothing in the section requiring its invalidation on the ground that it is arbitrary or capricious.

Decree vacated; case remanded for the entry of a decree consistent with this opinion; costs to be paid one-half by the County Council for Montgomery County and one-half by Investors Funding Corporation et al.

Footnotes

*

This Chapter was recently recodified as Montgomery County Code (1972), Chapter 29; consistent with the citations in the lower court’s decision, we shall refer to the Act as originally codified.

1

. A rental facility is defined in § 93A-4(m) to mean: “any structure, or combination of related structures and appurtenances, operated as a single entity in which the operator thereof provides for a consideration two or more dwelling units; but shall not be construed to mean any transient facilities such as boarding houses, tourist homes, inns, motels, hotels, school dormitory, hospitals or medical facilities; and any facilities operated for religious or eleemosynary purposes.”

2

. A “defective tenancy” is defined in § 93A-4(e) to mean: “any condition in a rental facility which constitutes a violation of the terms of the lease or any provision of this Chapter or constitutes a violation of any law, regulation or code.”

3

. The Council held extensive public hearings over a four-day period before enacting Chapter 93A; in addition, it held twelve public work sessions attended by representatives of landlords and tenants who participated in the drafting of the Act. The Act purports to be a legislative reflection of the Council’s recognition that, demographically, Montgomery County is burgeoning, and that there is an imperative need to provide limited local regulation and control of the apartment rental business and its concomitant landlord-tenant relationship. Evidence adduced before the Council, and included in the record before us, shows that in 1940, the County’s population was 83,912, but by 1960, it had grown to 340,928. From 1950 to 1960, the County’s population growth was 107.4 per cent. Between 1960 and 1966, an additional 97,952 persons were added to the County’s population. By 1970, the population of the County had grown to 522,809 people; by 1985, the County’s population is projected to reach 763,000. The record discloses that, in 1970, there were 50,315 apartments in the County; the increase in apartment housing in the County from 1960 to 1970 amounted to 205.3 per cent. Of approximately 87,000 building permits issued between 1960 and the first six months of 1970, almost two-thirds were for apartment units: garden apartments, elevator buildings and townhouses. Statistical projections indicate that by 1985, it will be necessary to increase the number of apartments in the County by 38,450 and that to accommodate the future population of the County, approximately 75,000 acres of land will be needed.

4

. On appeal, the landlords have abandoned their contention, made in the lower court, that the provisions of Acts of 1971, ch. 649, § 12, expressly-revoked the power of the Council to enact legislation on the subject of landlord-tenant affairs.

5

. See also, Moser, “County Home Rule — Sharing the State’s Legislative Power with Maryland Counties,” 28 Md. L. Rev. 327 (1968).

6

. The landlords concede that home rule counties in Maryland “have for years been repealing, amending, and revising the Common Law,” as indeed they inevitably must if they are to pass local legislation. For example, Article 25A; § 5 (X) specifically grants local power to regulate zoning; such regulation is admittedly in derogation of the common law right to use private property so as to realize its highest utility. See, Aspen Hill Venture v. Montgomery County, 265 Md. 303, 313-14, 289 A. 2d 303, 308 (1972). The ordinance which we approved in Greenhalgh (prohibiting racial discrimination in housing sales and rentals) clearly repealed the common law principles whereby the owner of real property had the absolute right to rent or sell to whomever he pleased.

8

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

9

. The validity of § 8-213.1 is not before us and we make no comment thereon.

10

. Chapter 181, Acts of 1972, repealed Article 52 of the Code in its entirety. The provision referred to by the lower court is now covered by Maryland District Court Rule 645 and we decide the issue on the basis of the latter, see n. 8 supra.

11

. The enforcement powers of the Commission, as detailed in § § 93A-9(c) and 93A-43, are, in pertinent part, as follows:

93A-91C): "The Commission shall be empowered to enforce the provisions of this Chapter through any appropriate means; including but not limited to . . . (iii the imposition of a civil penalty, not in excess of $1,000 for the violation of any provision of this Chapter, (iii) the imposition of an award of money damages against a landlord or tenant for the benefit of either as may be provided for in this Chapter, (ivi the ordering oi repairs by a landlord or tenant. . . .”

93A-43: Commission action; violation of Chapter or defective tenancy found.

“(a) If, at the conclusion of the hearing, the Commission determines, upon the preponderance of the evidence of record, that a violation of this Chapter has occurred or a defective tenancy exists, the Commission shall state its findings and issue an order. Such order shall require the respondent to cease and desist from such unlawful conduct and to take such appropriate action as will effectuate the purposes of this Chapter. The order shall also contain a notice that if the Commission determines that the respondent has not, after fifteen (15) calendar days following service of the Commission’s order, made a bona fide effort to comply with the order, the Commission will refer the matter to the County Attorney for enforcement

(b) Where the Commission finds that a landlord has caused a defective tenancy, all affected tenants may be entitled to one or more or all or part of the following remedies as ordered by the Commission:

(i) immediate termination of their leases, and return of their security deposits and all rental monies already paid to the landlord from the period the landlord was notified of the said condition, and relief from any and all future obligations under the terms of the lease. Where the termination of a lease is ordered, the dwelling unit shall be vacated within a reasonable period of timé.

(ii) an award of damages to be paid by the landlord sustained as a result of the defective tenancy, such damages being determined as the actual damage or loss. In the case of loss of services, such damage shall be proportionate to the amenity lost. In the case of damages to persons or property, an award for damages shall not exceed One Thousand Dollars ($1(100.00) per affected dwelling unit.

(iiii an amount to be paid by the landlord equivalent to a reasonable expenditure adequate to obtain temporary substitute rental housing in the area.

(c) Where the Commission finds that a tenant has caused a defective tenancy, the landlord may be entitled to one or more or all or part of the following remedies as ordered by the Commission:

(ii the landlord may immediately terminate the lease and gain possession in accordance with the provisions of Article 53 of the Annotated Code of Maryland. Other remedies available to the landlord shall be as provided by State law.

(iii an award of damages to be paid by the tenant to the landlord sustained as a result of a defective tenancy, such damages being determined as the actual damage or loss but not exceeding One Thousand Dollars ($1,000.00) with a credit for any damages which may have been deducted from the security deposit. Any award of damages or money under this section not paid within thirty (30) days from such award may be enforced by the landlord or tenant to whom the award was granted in any court of competent jurisdiction, and any such court is authorized To grant judgment for such monies plus interest from the date of the award.”

12

. That no provision is made for a de novo trial on appeal from the final action of the Commission does not constitute a deprivation of the right to a jury trial in violation of the Constitution of Maryland. See Branch Indemnity Insurance Co., 156 Md. 482, 144 A. 696 (1929) and Petillo v. Stein, 184 Md. 644, 42 A. 2d 675 (1945); Thomas v. Penn. R. Co., 162 Md. 509, 160 A. 793 (1932).

13

. The power of adjudication to determine guilt or innocence in criminal cases cannot constitutionally be conferred upon administrative agencies because the criminal defendant is entitled to special procedural protection of a kind not given in civil proceedings in court or in proceedings before administrative agencies. Helvering v. Mitchell, 303 U. S. 391, 58 S. Ct. 630, 82 L. Ed. 917 (1938).

14

. In view of our conclusion, we find it unnecessary to give detailed consideration to the Council’s alternate position that since the Act does not create a ‘'court of record” within the contemplation of Article IV, § 1 of the Maryland Constitution, the delegation of judicial or quasi-judicial powers to the Commission could in no event be unconstitutional. We think the argument, on its face, is completely without merit since all judicial power is vested in the courts designated in the cited provision of the Maryland Constitution.