State v. Stewart , 152 Md. 419 ( 1927 )

On July 16th, 1926, the appellee was indicted by the grand jury of Baltimore City for violation of the parking regulations made and promulgated by the police commissioner of Baltimore City, with the approval of the mayor, said regulations having been made under the authority of chapter 436 of the Acts of 1924 of the General Assembly of Maryland. A demurrer was interposed to the indictment and sustained by the lower court. From this action the appeal is taken.

The indictment alleges that Charles D. Gaither, being then the police commissioner of Baltimore City, did, in pursuance of the power conferred upon him by law, and particularly by chapter 436 of the Acts of 1924, authorizing, empowering, and directing the said police commissioner to make rules and regulations for the control and conduct of all vehicles and vehicular traffic on the streets, avenues, alleys, and highways within the City of Baltimore, make certain rules and regulations, one of which being known as section 8 of article 1, and providing:

"Except on streets as mentioned in sections 3, 4, 6 and 11 of this article, vehicles will be permitted to park within the central business district between the hours of nine-thirty (9:30) A.M. and six (6:00) P.M., provided they do not stand for a longer time than two (2) hours continuously in any one block; and provided further that on Sundays, legal holidays, and Saturdays after two (2:00) P.M., unlimited parking will be allowed except on streets described in section 11 of this article; and provided further that parking at night shall be subject to restrictions as mentioned in section 5, article 2 of these regulations."

"And that David Stewart, late of said city, on the seventh day of June, in the year of our Lord nineteen hundred and twenty-six, at the city aforesaid, in violation of the rule and regulation aforesaid, unlawfully did permit to be parked and to stand within the central business district between the hours of nine-thirty A.M. and six P.M. for a longer time than two hours continuously, to wit, six hours, in a certain block, to wit, Mulberry Street, between Calvert Street and Saint Paul Place, in said city the said seventh day of June in said year not being then and there a Sunday, legal holiday, or Saturday, contrary to the rule and regulation aforesaid, contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State."

By the demurrer to the indictment the constitutionality of chapter 436 of the Acts of the General Assembly of Maryland of 1924 was attacked, and three reasons were assigned for the unconstitutionality of this act: First, that it is in conflict with article 11A of the Constitution of Maryland; second, because chapter 436 of the Acts of 1924 is an unconstitutional delegation of legislative power to the police commissioner and mayor, and, third, because the said act is in conflict with the Constitution of this State, and with that clause of the Fourteenth Amendment to the Constitution of the United States, which provides that no state shall deny to any person within its jurisdiction equal protection of the laws, in that said act confers arbitrary and unlimited powers on the police commissioner with the approval of the mayor, and permits said police commissioner with the approval of the mayor to prohibit the parking of automobiles arbitrarily and upon his mere whim and without fixing any standards by which such action is to be guided.

The trial court sustained the demurrer upon the first ground, to wit, that the Act of 1924, chapter 436, is in conflict with article 11A of the Constitution of Maryland. Having reached a conclusion in harmony with that decision, which necessitates the striking down as unconstitutional of the act of the legislature in question, it is unnecessary to pass upon the other grounds urged by the appellee for its invalidity.

Article 11A of the Constitution of Maryland, known as the Home Rule Amendment, was adopted by a vote of the people of the state in November, 1915, pursuant to the provisions of chapter 416 of the Acts of the General Assembly of 1914. The wisdom of incorporating in the organic law of the state such provisions as are contained in this article had been urged for a number of years prior to its adoption, the reasons assigned by its proponents being that a larger measure of home rule be secured to the people of the respective political subdivisions of the state in matters of purely local concern, in order that there should be the fullest measure of local self-government, and that these local questions should thus be withdrawn from consideration by the General Assembly, leaving that body more time to consider and pass upon general legislation, and to prevent the passage of such legislation from being influenced by what is popularly known as "log-rolling"; that is, by influencing the attitude and vote of members of the General Assembly upon proposed general laws by threatening the defeat or promising the support of local legislation in which a particular member might be peculiarly interested. The portions of this amendment affecting this controversy are found in sections 2 and 4 of article 11A, which are:

"Section 2: The General Assembly at its first session after the adoption of this amendment shall by public general law provide a grant of express powers for such county or counties as may thereafter form a charter under the provisions of this article. Such express powers granted to the counties and the powers heretofore granted to the City of Baltimore, as set forth in article 4, section 6, Public Local Laws of Maryland, shall not be enlarged or extended by any charter formed under the provisions of this article, but such powers may be extended, modified, amended or repealed by the General Assembly."

"Section 4: From and after the adoption of a charter under the provisions of this article by the City of Baltimore or any county of this state, no public local law shall be enacted by the General Assembly for said city or county on any subject covered by express powers granted as above provided. Any law so drawn as to apply to two or more of the geographical subdivisions of this state shall not be deemed a local law, within the meaning of this act. The term `geographical subdivision' herein used shall be taken to mean the City of Baltimore or any of the counties of this state."

From an examination of these sections it is apparent that the powers granted by the Legislature to the City of Baltimore, contained in article 4, section 6, of the Public Local Laws of Maryland, under this amendment are to be exercised by the City of Baltimore, and that there is an express prohibition in section 4 against the enactment by the General Assembly of a public local law on any subject covered by express powers granted to Baltimore City. This article empowers the General Assembly to designate the subjects in respect to which the city or counties may legislate locally. In other words, this article of the Constitution itself does not grant the power to Baltimore City to legislate locally on all subjects, but only in respect to such subjects as are delegated to it in the legislative grant of powers. That is to say, the General Assembly has full power to designate the subjects in respect to which the power of legislation is delegated to the local authorities, but reserving to the Legislature the power and authority to enlarge, repeal or change the grant of powers theretofore made. While the Legislature has its reserved right to enlarge, diminish or change the grant of powers, so long as the granted powers remain unchanged, the field of local legislation in respect to those subjects defined in the grant of powers is exclusively in the local authorities, and the Legislature is forbidden to enact public local laws upon such subjects. If the General Assembly, in its grant of powers to Baltimore City, subsequently concludes that the grant of powers contained a subject upon which the General Assembly should have authority to legislate, and not the city authorities, it can only accomplish this by amending or repealing the act granting and delineating the powers. The Legislature has the power to describe the field within which the local authorities may legislate, but having once done this, it cannot restrict or limit this field of legislation without changing its boundaries. The legislation in respect to the subjects contained in the granted powers is therefore committed exclusively to the local authorities and denied to the General Assembly, so long as the grant of powers remained unchanged. Any other interpretation would render the provisions of article 11A meaningless, and result in nullifying the purpose sought to be accomplished by its adoption. If the Legislature could change the grant of power by the simple expedient of passing an act in conflict with the legislation of the local authorities, it would result in the complete frustration of the object of the amendment. The grant of powers committed by the General Assembly to the Mayor and City Council of Baltimore City is contained in article 4 of the Public Local Laws, now the charter of Baltimore City. It is admitted that at the time of the passage of the act now under consideration, subsection 26g of section 6 of the city charter was in full force and effect, and that this section conferred upon the Mayor and City Council power "to regulate the use of streets, highways, roads, public places and sidewalks by foot passengers, animals, vehicles, cars, motors and locomotives, and prevent encroachment thereon and obstruction to the same." This being true, it is clear that by chapter 436 of the Acts of 1924 the Legislature was attempting to legislate upon a subject contained in the special grant of powers to the city. This is also admitted, but it is contended by the appellant that, under the provisions of section 2 of article 11A, whereby the General Assembly is given the power to extend, modify, amend, or repeal the special grant of powers, the Act of 1924 is, in effect, a repeal of the power before granted to the city, contained in subsection 26g of section 6 of the city charter. For the reasons already given, we are of the opinion that this contention is unsound. The position is also taken that chapter 436, now under consideration, is not a public local law. But in our opinion this contention is likewise untenable. It is true that the act purports to add a new section to article 56 of the Public General Laws, title "Licenses," subtitle "Motor Vehicles," and that its provisions authorize, empower and direct the police commissioner, who is appointed by the Governor, to make rules and regulations for the control and conduct of all vehicles and vehicular traffic on the streets, avenues, alleys and highways within the City of Baltimore. This, however, does not constitute the act a public general rather than a public local law. The subject-matter is exclusively local to Baltimore City, and the mere form which the enactment has taken, that of an amendment to a public general law, is not controlling. It is the subject-matter and substance, rather than its designation or form, which is conclusive. Otherwise any law could be removed from the domain of public local laws by the mere act of the Legislature in calling it an amendment to a public general law. If such could be done in the present case, the Legislature could, by such a device, evade the constitutional prohibition in respect to local legislation. Bradshaw v. Langford, 73 Md. 428;Gaither v. Jackson, 147 Md. 655. In the latter case this Court said: "That the mere designation of a law as a local law or its treatment as such by the General Assembly does not make it a local law for all purposes, is illustrated in the case ofBradshaw v. Langford, 73 Md. 428."

Neither does the delegation of the authority and power to make these regulations, to an officer appointed by the Governor, change its status as a public local law. The enforcement of the laws local to Baltimore City is committed to the police commissioner, in the execution of the police power enjoyed by the city, and the mere fact that the designation of its chief police officer is made by the Governor of the state, rather than by the city authorities, does not change the character of the law providing for the regulation of the traffic upon the streets and highways of the city, so as to make it a general rather than a local law.

In the case of State, ex rel. Webster, v. CountyCommissioners, 29 Md. 516, this Court, speaking through Judge Alvey, said: "The special laws contemplated by the Constitution are those that provide for individual cases. Local laws * * * on the other hand, are applicable to all persons and are distinguished from the public general laws only in this, that they are confined in their operation to certain prescribed or definite territorial limits, and the violation must, in the nature of things, be local."

The above is true, without regard to whether the individual who is to execute and enforce the law is appointed by the Governor or by the local authorities. The operation of the regulations, authorized by this act to be made by the police commissioner, is confined and limited by the territorial boundaries of Baltimore City, and only those who have occasion to use the streets and highways of the city are subject to its provisions, and then only during such time as they are so using them; and the fact that citizens of other parts of the state, or outside of the state, are subjected to these regulations while using the streets and highways of Baltimore City, does not change its status as a local law.

Entertaining the views herein expressed, we hold that chapter 436 of the Acts of the General Assembly of 1924 is in conflict with the provisions of article 11A of the State Constitution, and therefore void.

Judgment affirmed, with costs.