Montgomery Citizens League v. Greenhalgh

252 A.2d 242, 253 Md. 151, 1969 Md. LEXIS 952

• Court: Court of Appeals of Maryland
• Decided: April 8, 1969
• Docket: [No. 339, September Term, 1968.]
• Status: Published

Opinions

Hammond, C. J.,

delivered the majority opinion of the Court. Barnes, J., dissents. Dissenting opinion, filed April 29, 1969, at page 165, infra.

After the decision in Scull v. Montgomery Citizens League, 249 Md. 271, cited hereafter as Scull, which held that the County Council of Montgomery County could enact laws only when sitting in legislative session and, therefore, that a fair housing law enacted when the Council was sitting in executive session was invalid and of no effect, the Council, sitting in emergency legislative session, again enacted a fair housing law, hereinafter sometimes referred to as Bill No. 18. The appellants, various individuals who alleged that they would be adversely and injuriously affected by the impact and operation of the new law, filed a bill (later amended), which alleged its invalidity and sought to enjoin the County Council, the executive secretary of the County’s Human Relations Commission, the three members of the Commission’s Panel on Housing, and the County Attorney from enforcing it. Judge Clapp sustained a demurrer to the bill, and later a demurrer to the amended bill without leave to amend.

.Bill No. 18 ¡prohibits discrimination on the basis of color, religious creed, ancestry or national origin in the sale or rental of housing and in thé lending of money for the purchase, construction or repair of housing; it prohibits the practice commonly called “blockbusting,” including attempts to induce the sale of housing by representations as to the proximity of dwelling units occupied by persons of any particular race, color or creed and it establishes enforcement procedures such as the receipt and investigation of complaints by the executive secretary of the Human Relations Commission and the hearing and disposition of such complaints by the three members of the Commission’s Panel on Housing appointed by the Council.

Appellants raise and argue here only three contentions which we state in what to us is an appropriate and orderly sequence: (1) Bill No. 18 is invalid because the purported emergency session of the Council was not authorized by Art. XI-A of the Constitution of Maryland; (2) the Council did not declare a need for an emergency session on May 30, 1968, the day when Bill No. 18 was enacted; (3) the legislative powers delegated to the County Council did not embrace the power to pass a fair housing law.

When the Home Rule Amendment first became a part of the Constitution of Maryland in 1915, § 3 of Art. XI-A provided that in every home rule county there must be an elected legislative body “in which shall be vested the law-making power of said * * * County,” a body given,

“subject to the Constitution and Public General Laws of this State, * * * full power to enact local laws of said * * * County, including the power to repeal or amend local laws of said * * * County enacted by the General Assembly, upon all matters covered by the express powers granted as above provided * *

Section 3 went on to say:

“Provided, however, that the charters for the various Counties shall provide that the County Council of the Counties shall not sit more than one month in each year for the purpose of enacting legislation for such Counties, and all legislation shall be enacted during the month so designated for that purpose in the charter.”

In its first charter Montgomery County, obeying this constitutional mandate, named May as the legislative month. Although the Court of Appeals noted in Schneider v. Lansdale, 391 Md. 317, 327, that “Those who framed [Art. XI-A] were fearful of a lawmaking body in continuous session and therefore the new authority to legislate was carefully restricted,” the restriction imposed was found to be unduly confining and frustrating and this led to the practice of the County Council of Montgomery County of enacting legislation while sitting in executive session, a practice found illegal is Scull. The restriction also led the legislature in 1955 at the suggestion of the Baltimore County Charter Board to propose an amendment to Art. XI-A so that the County Council of Baltimore County could, under its proposed charter, meet at the call of the County Executive or any three councilmen on days other than those of the regular specified legislative session of the month of May.¹

The amendment was ratified by the voters at the general election of 1956, the year the Baltimore County Charter was adopted. Under it, Art. XI-A, § 3 reads in pertinent part:

“Provided, however, that the charters for the various Counties shall specify the number of days, not to exceed forty-five, which may but need not be consecutive, that the County Council of the Counties may sit in each year for the purpose of enacting legislation for such Counties, and all legislation shall be enacted at the times so designated in the charter ** *

In 1966 the Charter of Montgomery County was amended to read:

“For the enactment of legislation, the county council shall sit in legislative session from the 5th day of January through the 3rd day of February of each year.

“If the council by a resolution approved by a majority vote of its members declares a need for an emergency extra session or sessions, such extra session or sessions may be held in addition to the aforementioned legislative session for a total period which does not exceed fifteen days. The said fifteen days may or may not be consecutive and may consist of one or more sessions.”

It was under this charter provision that the emergency session which produced Bill No. 18 was called and we think permissibly so.

The new provision continued to forbid the legislative body of a chartered County to remain in session indefinitely. The 1956 amendment to Art. XI-A required specification in the charter only of the number of days (up to forty-five a year) to be devoted to lawmaking. These days could be particularized by pre-identification in the charter as Art. XI-A originally had required or, in conformance with the adage that that is certain which can be made certain, later could be made identifiable by following a procedure prescribed in the charter. Montgomery County and Baltimore County each availed itself of the more flexible alternative, Baltimore County by the mechanics of a call by the County Executive or three members of the Council for extra legislative sessions, and Montgomery County by using a resolution by a majority of the Council. It is not without significance that the interpretation we give to the language of the 1956 constitutional amendment was presented as the true meaning of that language by the Baltimore County Charter Board which proposed the amendment to the legislature and was made generally available to the voters who ratified it.

We see little substance and no merit to the argument that Bill No. 18 is invalid because there was no express separate declaration by a majority of the Council that May 30, 1968, was a legislative day. On April 30, 1968, the Council adopted a resolution that the public interest required an “emergency extra Legislative Session to commence at 7:30 o’clock p.m. on May 1, 1968.” Bill No. 18 was introduced after the emergency session began and was the subject of public hearings on May 22 and May 23 in sessions described by the Council as executive sessions. Judge Clapp, in rightly rejecting appellants’ contention on this point, noted that the allegations of the bill were that between May 1 when the bill was introduced and May 30 when it was passed the Council had adjourned its legislative session to six various future days and had so held such meetings, as well as other executive sessions, but that the legislative session that began May 1 was never adjourned sine die until May 31, but rather the legislative meetings held after May 1 were interim meetings adjourned from the original May 1 date. Bond v. Baltimore City, 111 Md. 364, 369-370, on which Judge Clapp relied, fully supports his holding. There the Court quoted with approval Roberts’ Rules of Order as follows:

“ ‘A session is a meeting which, though it may last for days, is virtually one meeting—as, for instance, a session of Congress, which meets for months. The only way to terminate a- session is to adjourn sine die, or without day. The .intermediate adjournments from day to day do not destroy the continuity of the meeting— they, in reality, constitute one session. An adjournment to meet again at some other time terminates the meeting, but not the session. The next meeting, in such a case as the one last mentioned, would be an adjourned meeting of the same session.’ ” [111 Md. at 369]

The Court held that:

“Other important legislation has been passed by the City Council in the same way this ordinance was, and as, in order to sustain it, it is only necessary to construe the charter to mean that the session of the City Council extends from its organization at the beginning of the first legislative year to the end of the second legislative year, during which the same members remain in office, and especially as we can find no valid reason for the contrary, we adopt that construction.” [111 Md. at 370]

See also 4 McQuillin, Municipal Corporations (3rd Ed.) § 13.39, and 4 Antieau, Local Government Law: County Law § 32.06.

Appellants’ argument that the Council lacked power to enact a fair housing or equal accommodation law, since it had not been delegated either the full police power of the State or a specifically enabling grant of such power, was found by Judge Clapp to be unsound. We agree.

The power of a political subdivision of this State to enact laws depends on the extent to which the General Assembly has delegated to it its legislative powers which “are plenary, except as limited by constitutional provisions,” Md. Committee v. Tawes, 228 Md. 412, 439, modified, 229 Md. 406, rev’d on other grounds, 377 U. S. 656, 12 L.Ed. 2d 595, and the intent of the General Assembly is to be determined from the purpose and language of its enactments.

Article XI-A, § 1, describes how a County becomes a chartered County so as to enjoy home rule. Section 2 provides that the General Assembly shall by a public general law “provide a grant of express powers for such County or Counties as may thereafter form a charter * * and § 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 requires of every charter that it establish an elective legislative body “in which shall be vested the law-making power of said * * * County.” 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* * *.”

By Ch. 456 of the Laws of 1918 the legislature added a new article to the Code titled “Chartered Counties of Maryland” to be codified as Art. 25A to provide a grant of express powers to chartered counties. Power was granted “to 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 * * *,”and as to County property, franchises and institutions, fiscal affairs, elections, courts, health and nuisances, roads and streets, livestock, taxes, borrowings and credit, county officials, and there followed what is now § 5 (S) of Art. 25A:

“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.”

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.”

Control and supervision of the sale and renting of housing to prevent discrimination offer nothing inconsistent with Art. 25A and, indeed, would seem to be a logical extension or supplementation of the specifically granted powers to legislate as to the use to be made of real property (§ T) and full power to zone (§ X). 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 reduce 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, p. 274 of 249 Md.

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 nondiscriminatory 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.”

See also Adams v. City of New Kensington (Pa.), 55 A. 2d 392; State v. Morrow (Minn.), 221 N. W. 423; Shepherd v. McElwee (Ky.), 202 S.W.2d 166. The broadest grant of powers customarily is to home rule Counties, as 4 Antieau, Local Government Law: County Law, § 31.05, above cited, points out, and cases holding that a delegation was restricted or narrow are concerned almost always with delegations to municipalities that do not enjoy home rule.

A fair housing or equal accommodation law currently must prima facie be regarded as a reasonable exercise in good faith of the police power to protect the peace and good order of the community and to promote its welfare and good government. While in Scull we went no further than to hold the fair housing law invalid and ineffective because not passed in legislative session, it was implicit in the discussion of the case and its background that we thought the County had the power to pass such a law if it did so according to the legislative processes imposed upon it by the General Assembly. Our predecessors seemingly would, were they here to do so, agree. See State v. Gurry, 121 Md. 534, in which the power of Baltimore City to pass a segregation ordinance under which a white person could not live in a block in which lived black persons and a black person could not live in a block in which lived white persons was involved. The Court held that the ordinance was within the power of the City to enact and was constitutional since it lent itself to the preservation of peace and the promotion of the general welfare. If a segregation ordinance promoted peace, the general welfare and good government when segregation was constitutional, it would be difficult if not impossible reasonably to conclude that an anti-segregation law would not promote peace, the general welfare and good government when segregation is unconstitutional.

The Supreme Court in District of Columbia v. John R. Thompson Co., 346 U. S. 100, 97 L. Ed. 1480, held that Congress could delegate to the District the same power it could to a territory which is the power to legislate as to all matters on which a state can legislate; that a state may fashion its basic law so as to grant home rule or self government to its municipal corporations for the reason that, in the words of Barnes v. District of Columbia, 91 U. S. 540, 544, 23 L. Ed. 440, 444:

“A municipal corporation, in the exercise of all of its duties, including those most strictly local or internal, is but a department of the State. The legislature may give it all the powers such a being is capable of receiving, making it a miniature State within its locality,”

and, therefore, the Thompson opinion continued :

“[D]ecision after decision has held that the delegated power of municipalities is as broad as the police power of the state, except as that power may be restricted by terms oí the grant or by the state constitution.” [346 U. S. at 108-109, 97 L. Ed. at 1489]

The holding of Thompson was that when Congress delegated to the legislative body of the District power to ordain as to the “rightful subjects of legislation” it had delegated a power as broad as the police power of a state “so as to include a law prohibiting discriminations against Negroes by the owners and managers of restaurants in the District of Columbia.” See Stevens v. City of Salisbury, 240 Md. 556. Recent State court decisions applying these same principles include: Porter v. City of Oberlin (Ohio), 205 N.E.2d 363; Filippo v. Real Estate Commission of District of Columbia (D.C. Ct. App.), 223 A. 2d ; Commonwealth v. Beasy (Ky.), 386 S.W.2d 444; City of New York v. Clafington, Inc. (Sup. Ct. N.Y. County), 243 N.Y.S.2d 437; Marshall v. Kansas City (Mo. En Banc), 355 S.W.2d 877, 93 A.L.R.2d 1012; Stanton Land Co. v. Pittsburgh (C.P. Allegheny County, Pa.), 8 Race Rel. L. Rep. 1580; Elsea v. Watts (Cir. Ct. Wayne County, Mich.), 11 Race Rel. L. Rep. 392; Note, Municipal Civil Rights Legislation— Is the Powder Conferred by the Grant of Home Rule, 53 Minn. L. Rev. 342 (1968). No doubt can remain as to the power of a state legislature to prohibit discrimination in public accommodations and housing.

In Jones v. Mayer Co., 392 U. S. 409, 20 L.Ed.2d 1189, the Supreme Court held that an 1866 federal statute (42 U.S.C. § 1982) that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property” bars “all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment.” See also Hunter v. Erickson, 393 U. S. 385, 21 L.Ed.2d 616, in which a negro citizen of Akron sued to compel city officials to enforce a municipal fair housing ordinance and to process his complaint of being unlawfully prevented from purchasing a house. The trial court had held the enforcement provisions invalid under Ohio law but the Supreme Court of Ohio had reversed. The trial court on remand held that the ordinance had been rendered ineffective by an amendment of the City charter providing that any ordinance of the City Council dealing with racial, religious or ancestral discrimination in housing was not to be effective unless approved by a majority of the City’s voters. The Ohio Supreme Court affirmed but the Supreme Court of the United States reversed, holding that the charter amendment discriminated against minorities and constituted a denial of equal protection of the laws under the Fourteenth Amendment.

These controlling constitutional and legal rules were recently applied by this Court in Barnes v. State, Ex Rel. Pinkney, 236 Md. 564, where we upheld the constitutionality of a statewide law which prohibited discrimination because of race, creed, color or national origin of any person by the owner or operator of a place of public accommodation. Judge Oppenheimer for the Court pointed out that at common law inns and common carriers were under a duty not to discriminate and that:

“What the Legislature has done in the public accommodations law is to extend that duty to carefully limited places of public accommodations which, while not public utilities, like them, are open to the general public for the supplying of necessities. Such an extension is within the legislative discretion, under the police power, to determine what measures are necessary or appropriate for the protection of the health, morals or welfare of the people. The courts will not interfere with the exercise of that power, if the regulation is not arbitrary, oppressive or unreasonable, even though its exercise may inconvenience individual citizens. See Davis v. State, 183 Md. 385, 396-98, 37 A. 2d 880 (1944).” [236 Md. at 576-577]

We sum up our views on this aspect of the case by a paraphrase of State v. Gurry, supra, at p. 541 of 121 Md., in which Judge Constable for the Court said:

“If then the Legislature could pass a statute under the police power of the State, providing for the segregation [or forbidding the segregation] of the races, as we think it could, there would seem to be no doubt that the Mayor and City Council of Baltimore [and Montgomery County] can pass a valid ordinance having the same end in view.”

No challenge has been made to specific provisions of Bill No. 18 and, as in Hammond v. Lancaster 194 Md. 462, we find no need at this time to rule on any of its particular provisions.

Order affirmed, with costs.

1 . See the notes of the reporter to the Baltimore County Charter Commission p. 90, to the effect that “It is the opinion of the Charter Board that the adoption of the Constitutional amendment * * * while perhaps not essential to good government under the Charter, will certainly make the proposed form of government more workable. It will protect the legislative acts of the County Council from attack on narrow technical grounds.