Rossberg v. State

74 A. 581, 111 Md. 394, 1909 Md. LEXIS 130

• Court: Court of Appeals of Maryland
• Decided: November 12, 1909
• Status: Published

Opinion

Pearce, J.,

delivered the opinion of the Court.

The appellant, William Rossberg, indicted by the Grand Jury for the City of Baltimore for the violation of an ordinance of the Mayor and Ciy Council of Balimore known as the “Cocaine Ordinance,” approved June 19th, 1908, which prohibits the sale, furnishing, giving away, or having in possession, cocaine and kindred substances, or compounds thereof, except upon certain conditions provided in said ordinance, and which provides certain penalties for its violation. At the time of the passage of this ordinance there was in force a State law, being Chapter 607 of 1904, as amended by Chapter 523 of 1906, which forbid the selling, furnishing, or giving away of cocaine and of the same substances and compounds mentioned in said ordinance, except upon the same conditions substantially as provided in said ordinance, and which provided certain penalties for violation of said statute.

The penalty provided by the ordinance is a fine of not less than one hundred, nor more than five hundred dollars, with imprisonment in jail for not less than six, nor more than twelve months, and if a licensed pharmacist, physician, dentist or veterinary surgeon, the forfeiture of his license.

The penalty provided by the State law is a fine of from $25 to $50 for the first offence; $50 to $100 for the second offence, and $100 to $200, with imprisonment in jail for not more than six months, for the third and subsequent offenses. The State law does not, as the ordinance does, make the mere possession of the drags mentioned a misdemeanor, nor does it provide at all, as the ordinance does, for the revocation of the offender’s license. The latter, therefore, is somewhat broader in scope, and its penalties are heavier. The indictment contained nine counts, covering selling, furnishing and giving away cocaine, and having the same in his possession, the traverser being a licensed pharmacist. He demurred to the indictment and to each count, contending that the ordinance was invalid because of the existence of the State law dealing with and punishing the same offence dealt with by the ordinance. The case was heard by Judges Haklah, Stockbkidge and Riles, who overruled the demurrer, whereupon the traverser submitted under plea of non cul, and a verdict of guilty was rendered on the eighth count, charging a sale of cocaine to one Howard Nelson, and a fine of $100 and imprisonment in jail for one day was imposed, from which judgment the appeal was taken. While sustaining the demurrer, the lower Court, however, held that part of the penalty, which required the revocation of the license, to be unusual and oppressive, and therefore inoperative and void, but that its elimination as part of the penalty did not operate to destroy the general plan and intent of the ordinance, and left the rest of the ordinance in full operation and effect.

The first inquiry is as to the power of the municipal government of the City of Baltimore to pass the ordinance in question, or, in other words, whether such power has been delegated to it by the Legislature of the State. The powers thus vested in the city are broad and sweeping, and are expressed in terms which indicate a liberal view of the need of broad powers for effective local government of a great city. They are contained in thirty-one sections of the City Charter as it appears in the Baltimore City Code of 1906, and cover twenty-seven pages of that volume. Section 18, entitled “Police Power,” is as follows:

“The Mayor and City Council of Baltimore shall have full power and authority: To pass ordinances for preserving order, and securing property and persons from violence, danger and destruction, protecting the public and city property, rights and privileges from waste or encroachment, and for- promoting the great interests and insuring the good government of the city. To have and exercise within the limits of the City of Baltimore all the power commonly known as the Police Power, to the same extent as the State has or could exercise said power within said limits. But no ordinance heretofore passed, or that shall hereafter be passed by the Mayor and City Council of Baltimore, shall hereafter conflict or interfere with the powers or the exercise of the powers of the Board of Police of the City of Baltimore, heretofore created, nor shall the said city, or any officer or agent of the city, or .of the Mayor thereof, in any manner impede, obstruct, hinder or interfere with the said Board of Police, or any officer, agent or servant thereof or thereunder.”

Section 31, entitled “Welfare and other Powers,” is as follows:

“The foregoing or other enumeration of powers in this article shall not be held to limit the power of the Mayor and City Council of Baltimore, in addition thereto, to pass all ordinances, not inconsistent with the provisions of this article or the laws of the State, as may he proper in executing any of the powers either express or implied, enumerated in this section and elsewhere in this article, as well as such ordinances as it may deem expedient in maintaining the peace, good government, health and welfare of the City of Baltimore; and it may provide for the enforcement of all such ordinances by such penalties and imprisonments as may he prescribed by ordinance; hut no fine shall exceed five hundred dollars, nor imprisonment exceed twelve months for any offense.” We have not been referred to, nor have we discovered, any other provisions in the charter of the city which relate to the questions involved in this case.

Broader or more comprehensive police powers could not he conferred under any general grant of police power, for the purposes mentioned in see. 18, than those granted in that section, and when we consider the “Welfare Clause” of the charter, sec. 31, greater emphasis could not he laid upon the implied powers of the city for the maintenance of the peace, good government, health and welfare of the city, than is there laid. That section expressly declares that, no enumeration of powers in that article shall be deemed to limit the power of the city, in addition thereto, to pass-all ordinances, not inconsistent with that article, or the laws of the State, as may be proper in executing any of the enumerated powers, express or implied, contained anywhere in said article. The able argument of the appellants practically ignores the existence of any implied powers, and apparently proceeds upon the theory that where there is a State law dealing generally with a specific evil, then, unless specific power is conferred upon the city to deal by ordinance with that specific evil, an ordinance attempting to deal with that evil is unauthorized and void. The primary question in the case is therefore thus clearly and sharply defined.

Eo adjudication to this effect was produced, and we believe none can be, nor, does the suggestion find support in. any text writer quoted or referred to in argument. Judge Cooley, speaking of the powers of municipal corporations, says: “The powers of these corporations are either express or implied. The former are those which the legislative act under which they exist confers in express terms; the latter are such as are necessary in order to carry into effect those expressly granted, and which must therefore be presumed to have been within the intention of the legislative grant.” Cooley Const. Lim., 5th ed., page 233. In the present case, the legislative grant is not merely one of power to pass ordinances relating to specified police powers, regarded as a pari only of the general police power, but the grant is of “all the power commonly known as the Police Power, to the same extent as the State has or could exercise said power within said limits.” The implication therefore is a necessary one, that notwithstanding the preceding clause of that section of the, charter enumerated certain purposes for which ordinances might be passed, the Legislature intended the city to have, in addition, the power to pass ordinances for any and all purposes relating to the exercise of the police power. If there fore the power to pass the ordinance in question can be considered as an implied power, it is well within the definition of an implied power given by Judge Cooley, since the whole police power cannot be exercised if the exercise of any part of such power is to be withheld because such part is not expressly granted. But we regard the power here in question as an express power, and this is so whether we look, in the construction of the charter, either to one or both of the sections heretofore reproduced. The grant of all the police power is an express grant, and every part of the whole is therefore derived by express grant in sec. 18. If there could be any doubt of this, such doubt is set at rest by sec. 31, which, as we have said, expressly declares that the power to pass any ordinance not inconsistent with that article or with the laws of the State, shall not be limited by any enumeration of powers, anywhere in said article. We regard the legislative intent therefore to be clear, whether the power be viewed either as express or implied. We did not understand the appellant to deny that this powér can be delegated by the State to a municipal corporation. It is true as a general proposition that the Legislature cannot delegate its power to make laws, but as expressed in 28 Cyc. 693: “After repeated challenge of municipal authority to exercise the police power, on the ground that it is a sovereign power, and therefore nondelegable, the doctrine is firmly established and now well recognized that the Legislature may expressly or by implication delegate to municipal corporations the lawful exercise of police power within their boundaries. * * * It may be full or partial, regular or summary; but it is never exclusive, as the Legislature has no authority to divest itself of any of its sovereign functions or powers.” And Judge Cooley says on page 229, of Const. Lim.: “The Legislature in such cases is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State; and when it interferes, as sometimes it must, to restrain and control the local action, there should be reasons of State policy or dangers of local abuse to warrant the interposition.” But passing from this consideration the real and substantial contention of the appellant is two fold: 1st. That a penal ordinance punishing the same act as .that punished by State law, is invalid and void; and 2nd, that even if this cannot be sustained as broadly stated, that such an ordinance is invalid where it is inconsistent with the laws of the -State upon the same subject, and' that in this ease the ordinance in question is inconsistent with the State law punishing the same act punished by the ordinance.

In Cooley’s Constitutional Limitations, 5th Ed., page 241, the author says: “The State law and the by-law may both stand together if not inconsistent. Indeed, an act may be a penal offence under the laws of the State, and further penalties, under proper legislative authority,, be imposed for its commission by municipal by-laws, and the enforcement of .the one would not preclude the enforcement of the other. Such is the clear weight of authority, though the decisions are not uniform.”

In McQuillan on Municipal Ordinances, a recent elaborate text-book, it is said: “It is entirely competent for the Legislature to confer in express terms such powers as will enable the local corporation to declare by ordinance any given act an offense against its authority, notwithstanding such act has been made by statute a public? offense and a crime against the State * * * and further penalties may he -imposed for its commission or omission by municipal ordinance.”

In 28 Cyc. 697, it is said: “Unless it is prohibited by some express constitutional or statutory provision, by the great weight of authority, municipal corporations may, by ordinance, prohibit and punish acts which are also prohibited and punishable as misdemeanors under the general statutes of the State or which may involve a common law offense; * * * such ordinances after much strenuous'contention are now generally recognized as valid.”

This statement of the law is supported by an overwhelming array of decided cases, collected in the notes to the works above cited, many of which we. have laboriously examined, but we do not deem it necessary to review them here, The view taken in these cases is tersely expressed in Monroe v. Hardy, 46 La. An. 1232, which was a prosecution by the Mayor of a city for a fine imposed by ordinance upon crap-shooting, which was prohibited also by the State law, and the Court said: “In certain classes of offenses there may be concurrent powers in the State and in municpal authorities to prohibit them. The decisions on this point have been so numerous and uniform in upholding this doctrine that it has passed into an elementary principle in the textbooks.”

It cannot be said that the question now under consideration has been decided in any reported case in this State, but as said in the opinion of the lower Court in this case, the rule above laid down “seems to have been recognized as the law of Maryland in a dictum in Shafer v. Mumma, 17 Md. 331, even where the same tribunal has jurisdiction of a State statute and a -municipal ordinance.” The question actually decided in that case was that in trying and fining the female appellee the Mayor of Hagerstown was exercising the police power as contradistinguished from the judicial power of the State, but in the course of the opinion Chief Justice LeGbaetd said: “She was punished for an offense against the decency and morals of Hagerstown, and not against those of the State; she offended within the corporate limits, and for such offense she was made to answer. This did not wipe out all responsibility for the offense to the dignity and sovereignty of the State.” Though a dictum, this recognition of the rule by such distinguished „judges as LeGrand, Tuck and Babtol must have great weight with their successors, especially when shown to be in harmony with the decisions of other Courts of high repute.

It follows from what we have thus far said that municipal authorities may be given concurrent power with the State to punish certain classes of offenses, and that which .first obtains jurisdiction of the person of the accused may punish to the extent of its power; and further that the ordinance is not- made invalid by the mere fact that the State law and the ordinance provide in terms for distinct prosecutions for the same act. The lower Court, in this case, expressed this view so clearly that we reproduce and adopt the following passage from the opinion set out in full in the record: “But it is not necessary in the present case to decide whether a conviction or acquittal on a charge of the violation of a State statute could properly he pleaded to an indictment for the violation, by the same act, of a municipal ordinance. That question could be raised by a plea in bar on a second prosecution, and the Court now is only required to determine upon this demurrer whether the possible condition above mentioned invalidates the entire ordinance, so that no indictment whatever can be sustained under it. And the Court is clearly of opinion that the ordinance cannot be held invalid upon such ground.”

But the appellant further contends that this ordinance is invalid under the express terms of the legislative grant, because it is inconsistent with the law of the State, and this supposed inconsistency is found in the fact that the penalties prescribed in the State law are different from those of the ordinance, the latter being heavier, and not distinguishing, as the State law does, between first, second and third offenses.

But all the text-writers already cited herein unite in declaring that further and additional penalties may he imposed by ordinance, without creating inconsistency. The true doctrine, in our opinion, is concisely stated in 28 Cyc. 701, as follows: “Such ordinances must not directly or indirectly contravene the general law. Hence ordinances which assume directly or indirectly to permit acts or occupations which the State statutes prohibit, or to prohibit acts permitted by statute or Constitution, are under the familiar rule for validity of ordinances uniformly declared to be null and void. Additional regulation by the ordinance does not render it 'void.” And when their validity is challenged such ordinances will receive favorable construction, and be sustained by the Court, unless their invalidity clearly appears. Wyse v. Jersey City Police Commrs., 68 N. J. L. 127.

The reason for this rule is well stated in Van Buren v. Wells, 53 Ark. 368, as follows: “Municipal corporations are in some respects local governments, established by law to assist in the civil government of the country. They are founded in part upon the idea that the needs of the localities for which they are organized, 'by reason of the density of population, or other circumstances, are. more extensive and urgent than those of the general public in the same particulars.’ Many acts are often far more injurious, while the temptation to do them is much greater, in such localities than in the State generally. When done in such localities they are not only wrongs to the public at large, but are additional wrongs to the corporation. To suppress them when it can be done, and when there is a failure to do so, to punish the guilty parties, in many cases forms a part of the duties of such corporation. Many of them can, and ought to, be made penal by incorporated cities and towns, although already made so by the statute. It sometimes becomes- necessary for them to do so in order to accomplish the objects of their organization.” This language is especially applicable to. the nefarious sale, and having in possesson for unrestricted sale, of cocaine and other deadly drugs, so largely used in this day as a substitute for ordinary stimulants or intoxicants, and a good example of the application of the principles above stated is found in Mon Luck v. Sears, 32 L. R. A. 738.

There are abundant adjiidications upon the point now under consideration.

In Ex parte Hong Shen, 98 Cal. 681, the Court said: “Whenever a municipal by-law comes in conflict with the State law, the by-law must give way. It is contended there is such conflict because the ordinance makes another and different regulation for the sale of an article of commerce than that made by the State statute. The soundness of this contention we cannot admit. There may he different regulations, without conflict

In State v. Ludwig, 21 Minn. 202, a State law forbid keeping open any place of business on Sunday under penalty of $2, while the city ordinance forbid the opening of a saloon under penalty of $25. The Court said: “There is no State law authorizing the acts made penal by this ordinance. On the contrary, the State law makes them unlawful. The Legislature’ may authorize a municipal government to impose new and additional penalties for acts already made penal by laws of the State,” and although the charter forbid the passage of any ordinance repugnant to State laws, there was held to be no conflict in that case.

In McPherson v. Chebanse, 114 Ill. 51, in a similar case, the Court said: “The ordinance does not prohibit what the statute'permits. There is no repugnancy between them.”

In Linneus v. Dusky, 19 Mo. Ap. 20, the ordinance forbid all persons, except certain officials, from carrying concealed weapons, under certain penalties. The State law allowed one whose life had been threatened to carry such weapon, but the ordinance made no such exception. It was held there was no repugnancy and that the ordinance was valid.

In Com. v. Goodnow, 117 Mass. 114, an old Act of 1799 forbid the projection of any bow window in Boston more than one foot, under the penalty of $1.00 for each day after notice to remove. The Act of 1854 authorized the city to make all heedful and salutary ordinances not inconsistent with the laws of the Commonwealth, under penalties not exceeding $50. An ordinance passed under this authority forbid projecting bow-windows beyond a certain distance under a penalty from $4 to $50 and it was contended the ordinance was void because in conflict with the Act of 1799, but the Court upheld the ordinance.

These illustrations will suffice without further multiplying them.

This brings us to the final question of the reasonableness of the provision of the ordinance for the forfeiture of the license of the person convicted, if he he a licensed pharmacist, physician, dentist or veterinary surgeon. The Court below held that “this part of the penalty in the ordinance is so unusual and oppressive as to be unreasonable and should be condemned for that reason.” Without entering into a discussion of that question, we are not prepared to say where a pharmacist, physician, dentist or veterinary surgeon, in violation of the restrictions of this ordinance, deliberately or recklessly sells the prohibited drugs, or keeps them in his possession for the purpose of such sale, that the forfeiture of his license is so oppressive as to be unreasonable. Indeed we are disposed to believe that both with regard to the depravity of the offender, and to the protection of the public against the evil at which the ordinance is aimed, forfeiture of license is the only fully adequate penalty, but we concur in the condemnation of that provision of the ordinance upon another ground.

Our examination of the matter leads us to the conclusion that under its charter the City of Baltimore has no power to declare any forfeiture.

In a note to Cooley’s Constitutional Limitations, page 249, 5th Ed., the author says: “Municipal by-laws may impose penalties on parties guilty of a violation thereof, but they cannot impose forfeiture of property or rights without express legislative authority,” citing State v. Ferguson, 33 N. H. 424, and Phillips v. Allen, 41 Pa. St. 481. Judge Dillon states the law in the same way, in his work on Municipal Corporations, Vol. 1, sec. 336. And McQuillan on Ordinances, sec. 170, says the general rule is that an ordinance cannot create a forfeiture, in the absence of express power so to do,” citing Kirk v. Nowell, 1 Tenn. Rep. 118; and he adds in the same section: “The American Courts have generally followed the early English rule, and have held that in the absence of express power given an ordinance cannot be enforced by forfeiture.” It was so held in White v. Tallman, 26 N. J. L. 67; N. Y. v. Ordrenan, 1 2 John. 122; Varden v. Mount, 78 Ky. 86; Barter v. Com., 3 Pa. Penrose and Watts, per Chief Justice Gibson, Kneedler v. Norristown, 100 Pa. St. 368, and State ex rel Heise v. Columbia in which the Court held there was no distinction between forfeiture of goods and of license. Also in Carey v. Washington, 5 Fed. Cases, 2404, the Court said, “a corporation cannot restrain or prohibit any person from the full exercise of all his rights under the law of the land unless such power is expressly given by the charter, or necessarily results from some given express power. This is a rule applicable to all corporations acting under a charter.” Ho authority is required to show that unless the elimination of forfeiture of license as part of the penalty would operate to destroy the general intent of the ordinance, the rest of the ordinance remains in full force and effect.

Finding no error in the judgment of the Oourt, it will be affirmed.

Judgment affirmed with costs to the appellee above and below.