Opinion
[No. 134, September Term, 1963.]
Decided January 24, 1964.
DELEGATION OF POWER — Exception To Rule That Legislature May Not Delegate Law Making Power — Police Power May Be Delegated To Municipalities, Which May, In Turn, Delegate Administrative Duties. The general rule is that the Legislature of this State exercises the law-making power thereof, and cannot delegate such power. One of the exceptions to that rule, however, is that the police power of the State may be delegated to the municipalities; and when this power is lawfully delegated, the purely administrative duties incident thereto may in turn be delegated to others, even if they involve a certain amount of discretion. p. 335
DELEGATION OF POWER — Secs. 1069 And 464 (b), Code Of P.L.L. Of Prince George's County — As To Licensing, Regulation And Control Of Public Amusements — Held To Be Valid Delegation Of Police Power. Sec. 1069 of the Code of Public Local Laws of Prince George's County provides that no one may conduct a baseball or football game or motorcycle or automobile race for private gain without obtaining a license from the Board of County Commissioners, but prohibits issuance of such license for any place nearer than 500 feet from a church; and Sec. 464 (b) authorizes the Board, among other things, to provide for inspections and require notice of public hearings before issuing any license; provide for the regulation and control of public amusements; designate the kinds of amusements to be permitted; and enact any other ordinance for the safeguard of life, health and property and promotion of public safety and moral welfare. In the instant appeal from a denial of a writ of mandamus to compel the Board to issue a permit to operate a raceway for automobile and motorcycle drag racing, it was held that the above mentioned provisions of Secs. 1069 and 464 (b) (except the provision authorizing the Board to designate the kinds of amusements that may be permitted, which the Court did not find it necessary to pass upon) were proper delegations by the Legislature of the police power of the State, and did not violate either the Federal or the Maryland Constitution. Both statutes dealt with the same subject matter, public amusements, the regulation or restraint of which is squarely within the police power. In making a delegation of police power to a municipality, it is not necessary, as appellants contended, that the Legislature fix guides and standards for its exercise by the municipality. pp. 334, 336-337
POLICE POWER — Justification For Restrictions Upon Use Of Private Property — Principles Governing. Restrictions imposed by the State or some agency of the State upon the use of private property cannot be justified under the police power unless they are reasonably necessary for the adequate protection of the public welfare, safety, health, comfort or morals. Whether such restrictions are reasonable in fact is a judicial question; and when imposed by competent legislative authority the burden of proof in any such inquiry is upon him who challenges their validity. When they are reasonably necessary for the adequate protection of the public welfare, safety, health, morals, or comfort, such restrictions will be regarded as a valid exercise of the police power unless they contravene some express constitutional prohibition. To these settled principles may be added that, when a municipality acts directly under a lawful delegation of police power, it must exercise such power impartially and not arbitrarily or capriciously in a legal sense, but it is not necessary that the municipality first enact an ordinance pursuant to the statute granting it police power before it may proceed in cases where a permit is required. pp. 337-338
POLICE POWER — Denial Of Permit To Operate Drag Race Strip — Held Not To Be Arbitrary Or Capricious Exercise Of Police Power. The instant mandamus proceeding was to compel the Board of County Commissioners of Prince George's County to grant a permit to operate a raceway for automobile and motorcycle drag races, the petitioners contending, among other things that the Board's refusal to grant them a permit was arbitrary and capricious and, therefore, an improper exercise of police power. The Court held that it could not conclude that the Board's action was not reasonably necessary for the public welfare, safety and morals, or was partial in nature, or arbitrary or capricious. There was testimony to the effect that the subject property was one-half mile from a heavily travelled through highway, that a grandstand to seat 10,000 spectators was contemplated; that the usual crowds attracted by such races are not of the most desirable character and that traffic congestion problems would be serious. A police survey showed opposition by a large majority of people and other opposition evidence was offered by a State Police sergeant; Boys Village, an institution for delinquent boys, which feared that the attraction would tempt the youths to go astray; and the Department of Game and Inland Fish, which indicated that the additional traffic would be detrimental to its operations in the locality. There was a well-known drag strip already in operation about 15 miles away. The proponents' testimony, consisting primarily of statements that the proposed raceway would keep youngsters from drag racing on the public highways, fell far short of so far outweighing the opposing testimony as to make the Board's action arbitrary or capricious. pp. 338-339
T.G.B.
Decided January 24, 1964.
Appeal from the Circuit Court for Prince George's County (BOWIE, J.).
Mandamus proceeding by Thomas J. LaRoque and others to compel the Board of County Commissioners of Prince George's County to grant a permit for the operation of a raceway for automobile and motorcycle drag races, in which proceedings Aloysius Hall and other residents and property owners in the vicinity of the proposed raceway intervened. From an order denying their petition for a writ of mandamus, the petitioners appealed.
Order affirmed, with costs.
The cause was argued before HENDERSON, HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.
W. Byron Sorrell, with whom was Darrow Glaser on the brief, for appellants.
Russell W. Shipley, with whom were Robert B. Mathias, Lionell M. Lockhart and Joseph S. Casula on the brief, for the appellee Board of County Commissioners of Prince George's County.
Harry L. Durity for the remaining appellees, Aloysius Hall, et al.
After the trial court denied appellants' petition for a writ of mandamus to require the Board of County Commissioners to issue them a permit to operate an automobile and motorcycle raceway for drag racing, they appealed.
The parties agree upon the following facts:
Appellants, owners of a 30 acre tract of land located approximately one-half mile south of U.S. Route No. 301 in the vicinity of Cheltenham, sought to use their property for the purpose of an automobile and motorcycle raceway for drag racing and made application in proper form accompanied by the required fee to the Board of County Commissioners (Board) on February 27, 1963, for a permit to operate same pursuant to Section 1069 of the Code of P.L.L. of Prince George's County (the Section is set forth below).
A hearing on this application was held on March 19, 1963, before the Board. At this hearing, appellants established by uncontroverted evidence that the entrance to the raceway would be more than 500 yards from the nearest church building and the race track itself at its closest point would be more than 1000 yards from the nearest church building. Objections to granting the permit by property owners in the area and other interested parties, which will be set forth in more detail below, were heard by the Board. At the conclusion of the hearing, it refused to issue a permit to operate the proposed raceway.
On May 9, 1963, the appellants filed a petition for a writ of mandamus to compel the issuance of the permit, to which the appellee, Board, filed a demurrer. Thereafter, appellees, Aloysius Hall, et al, filed a motion to intervene alleging that they were residents and property owners in the vicinity of the proposed raceway and would be affected by the proceedings.
The Circuit Court, after a full hearing, held that mandamus was the proper procedure in the case; that Section 1069 was constitutional; and that, under its provisions and those of 464 (b) (pertinent portions of which are also set forth below) the Board had authority to deny the permit, and its action in so doing was not arbitrary nor capricious.
In addition to the facts agreed upon here, there was additional testimony taken, relevant portions of which will be stated in considering Question No. II.
The appellants subdivide their argument under several headings, but they may be determined by answering two questions: (1) Is Section 1069, or any of the portions set forth below of Section 464 (b) unconstitutional as violating the Fourteenth Amendment to the United States Constitution or Article 23 of our Declaration of Rights; and (2) Was the action of the Board in denying appellants application reasonably necessary for the protection of the public welfare, etc., impartial in nature and not arbitrary or capricious in a legal sense?
Section 1069, Code of P.L.L. of Prince George's County (Everstine 1953) provides:
"1069. No person, organization, association, corporation, partnership or group of individuals shall conduct a baseball game, football game, motorcycle race or automobile race, to which the public is invited or admitted with or without charge for such admission, operated for private gain, without first obtaining from the County Commissioners of Prince George's County a written permit therefor, the fee to be one dollar ($1.00) for each permit issued for any one time, which fee shall be used for the purpose of defraying the cost incurred, any excess to go into general county fund." It further provides that no such license shall be issued for any place nearer than 500 yards from any church, and for penalties for violating the provisions of the section.
Section 464 (b) states: "The Board * * * shall have all the power and authority now or hereafter granted to it by law, and in addition, may, by resolution, ordinance or other appropriate action:
* * *
"21. Provide for inspection and require notice of public hearing before issuance of any license, permit or other letters of authority * * *.
* * *
"25. Provide for the regulation and control of all public amusements. To designate the kinds and types of amusements that shall be permitted in Prince George's County. To require public hearings and inspection of locations before issuing any permit and fix all charges and fees connected with the issuance of such permits. Public amusements shall include but not be limited to meets, contests [naming numerous other amusements], motorcycle and automobile events and exhibitions * * *.
* * *
"33. Enact any other ordinance for the safeguard of life, health and property and for the promotion of public safety, and moral welfare."
I
The general rule, subject to exceptions, is that the Legislature of this State exercises the law-making power thereof and it cannot delegate such power. Pressman v. Barnes, 209 Md. 544, 121 A.2d 816; Md. Co-op. Milk Producers v. Miller, 170 Md. 81, 182 A.2d 432. However, one of the exceptions to that general rule is that the police power of the State may be delegated to the municipalities thereof. Bladensburg v. Berg, 216 Md. 292, 139 A.2d 703; Pocomoke City v. Oil Co., 162 Md. 368, 376, 159 A. 902; Cox v. Anne Arundel County, 181 Md. 428, 31 A.2d 179. Compare United R. E. Co. v. State Roads Com., 123 Md. 561, 586, 91 A. 552, dealing with Section 6 (24) of the Baltimore City charter, which grants to the Mayor City Council "all the power commonly known as the Police Power * * *." And when this power is lawfully delegated, the purely administrative duties incident thereto may in turn be again delegated to others (and this is true even though these latter delegated powers involve the exercise of a certain amount of discretion, not involved herein, Pressman v. Barnes, supra) or directly exercised by the first delegate, itself. Pocomoke City v. Oil Co., supra; Benner v. Tribbitt, 190 Md. 6, 57 A.2d 346; Engle v. City Comrs. of Cambridge, 180 Md. 82, 22 A.2d 922.
The appellants seem to concede the above, but argue that any such delegation of the police power must be restricted by reasonable guides and standards as to the exercise thereof, when it denies a property owner a lawful use of his property. In this contention, they rely most heavily upon Baltimore v. Radecke, 49 Md. 217, County Comm'rs v. Northwest Cemetery Co., Inc., 160 Md. 653, 154 A. 452, and State v. Greenberg, 221 Md. 471, 157 A.2d 420. These cases are readily distinguishable from the case at bar, and no extensive elaboration is needed to establish this fact.
In Radecke, a Baltimore City ordinance, dealing with the erection and building of a steam machinery, provided that all permits issued for steam boilers and steam engines could be revoked by the Mayor, alone. This Court noted that the ordinance committed "to the unrestrained will of a single public officer the power to notify every person who now employs a steam engine * * * to cease to do so," and held that it, therefore, did not fall "within the domain of law." In the Northwest Cemetery case, an act of the Legislature, which made it unlawful to establish or maintain a graveyard anywhere in Prince George's County without the written permission of the County Commissioners, was held to be invalid. The invalidity of the act was based upon the fact that it was not confined "to localities where it might have a clearly intended relation to the protection of the public health or other legitimate purpose of the police power," the Court specifically noting, "there is no suggestion in the bill of complaint [a demurrer to which had been sustained] that the cemetery of the appellee is objectionable from the standpoint of any public interest." Judge Urner wrote the opinion in this case and also that in Gordon v. Montgomery County, 164 Md. 210, 164 A. 676. In the latter, he upheld a statute regulating cemeteries under proper provisions relating to the police power, and distinguished Radecke and Northwest Cemetery. We will point out below that the instant case deals specifically with an exercise of the police power. Likewise in Greenberg, a statute was held to be invalid because the "authority delegated to the county commissioners * * * [was] not limited to matters falling within the scope of the police power, and [was] unreasonably broad in scope and effect."
An examination of the two statutes here involved reveals that they deal with the same subject matters (public amusements); hence, they should be considered together. We have held that the regulation or restraint of such amusements is "squarely within the ambit of the police power." Gonzales v. Ghinger, 218 Md. 132, 135, 145 A.2d 769, wherein a number of authorities are cited to support the statement. We think a reading of the statutes, as quoted above, leaves no doubt that the Legislature intended to grant, and did grant, to the Board, a portion of the police power of the State. And in making a delegation of police power to a municipality, it is not necessary that the Legislature fix guides and standards for its exercise by the municipality; however, this Court, in its decisions, has stated the test by which the validity, vel non, of the actions of the municipality, acting under such delegation, must be determined, which will be stated below. We hold, therefore, that Sections 1069 and all of the quoted provisions of Section 464 (b), with the exception noted below, are proper delegations by the Legislature of the police power of the State, and they do not violate either the Federal or the Maryland Constitution. Bladensburg v. Berg; Cox v. Anne Arundel County; Benner v. Tribbitt; Pocomoke City v. Oil Co., all supra.
We do not find it necessary, at this time, to pass upon the constitutionality of the sentence in Section 25, which authorizes the Board "To designate the kinds and types of amusements that shall be permitted in Prince George's County."
II
In Pocomoke City, supra, this Court, after a careful and thorough discussion and analysis of previous cases, stated that the following principles may be accepted as settled: "(1) That restrictions imposed by the State or some agency of the State upon the use of private property cannot be justified under the police power unless they are reasonably necessary for the adequate protection of the public welfare, safety, health, comfort, or morals [we held above that public amusements came squarely within the scope of the police power]; (2) that whether such restrictions are reasonable in fact is a judicial question; (3) that when imposed by competent legislative authority the burden of proof in any such inquiry is upon him who challenges their validity [citations]; and (4), when they are reasonably necessary for the adequate protection of the public welfare, safety, health, morals, or comfort, such restrictions will be regarded as a valid exercise of the police power unless they contravene some express constitutional prohibition." This language was quoted with approval in Benner v. Tribbitt, supra, and followed in several other cases. And to the above may be added that, when a municipality acts directly under a lawful delegation of police power, as described above, it must exercise such power impartially and not arbitrarily or capriciously in a legal sense ( Pocomoke City v. Oil Co.; Engle v. City Comrs. of Cambridge; Benner v. Tribbitt; all supra), but it is not necessary that the municipality first enact an ordinance pursuant to the statute granting it police power before it may proceed in cases where a permit is required. Engle v. City Comrs. of Cambridge, supra, and cases therein cited.
From what we have said above (including what we said under I), the remaining question for our determination is the one we stated as question No. II.
There is no direct statement in the record as to how "drag racing" is conducted. It seems, however, that the participants operate automobiles and motorcycles with "hopped up" engines, which permit the vehicles to proceed at a high rate of acceleration. From a standing start, the operator of a vehicle, which travels a prescribed distance in the shortest period of time (usually measured by an electric timer), wins the race. Cf. Wentworth Flexner, Dictionary of American Slang.
There was testimony before the Board to the following effect. The subject property is located some one-half mile from Route 301, a heavily traveled, through highway, with a maximum speed limit of sixty miles per hour. From Route 301, there is a thirty-two foot road to the proposed raceway, which crosses a railroad track before reaching it. The owners, if granted a permit, anticipated the construction of a grandstand to seat 10,000 spectators. The usual crowds attracted by this class of public amusement are not of the most desirable character. It was shown that three State Policemen are required to control the traffic at the Marlboro raceway, and witnesses stated that traffic congestion problems, if a permit were granted, would be serious, especially on Sundays. A police report was introduced stating that a canvass showed opposition by a "large majority of the people." A State Police sergeant, who made a study of the application, expressed opposition on the grounds that it would create "a greater problem than we already have on 301," and it would also create a problem "of the people on the drag strip itself — * * * it goes into the stands and encourages even spectators to violate the law." An article by the National Association of Police, which strenuously opposed drag strips and indicated they "serve no popular demands," was also introduced. Trains do not travel frequently upon the railroad track mentioned above, but there was testimony that someone would have to watch it.
In addition, Boys' Village, a State agency operated on property located on the connecting road, also opposed the granting of the permit on the ground that its some 361 delinquent boys (chiefly 13 and 14 year old youths), who were on the "honor system" would be tempted to go astray with an amusement of the proposed nature so close by. And the Department of Game and Inland Fish, which anticipated obtaining property on both sides of the connecting road, likewise expressed opposition, on the ground that the additional traffic thereon would be detrimental to the successful conduct of its operations in that locality.
The testimony further disclosed that a well-known and well-attended drag strip was already operating in Prince George's County, about fifteen miles from the subject property.
With this testimony before the Board, we are unable to conclude that its action in denying the permit was not reasonably necessary for the protection of the public welfare, safety and morals, that it was partial in nature, or that it was arbitrary or capricious. We have found it unnecessary to set forth the proponents' testimony in detail. It consisted, principally, of the statements of one of the owners and a garage operator (who "hopped up" engines for drag racing) to the effect that the proposed operation would keep youngsters from drag racing on the public highways, and a petition of 137 names, not included in the record extract. Suffice it to say, it fell short of so far outweighing the testimony of the opponents, as to make the Board's action arbitrary or capricious.
We also find it unnecessary to rule upon appellees' contention that mandamus was improper in a proceeding of this nature. For the purposes of the case, we have assumed, without deciding, that mandamus was proper.
Order affirmed, with costs.