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had thereby been rendered unsound, unclean, unwholesome, and unfit for human food. This ordinance did not provide any more definite formula than that contained in the phrase "unfit for human food" by which the wholesomeness of meat could be determined, but, on the contrary, it directed the health commissioner to have inspections made by experts in sanitation so that he could acquire the necessary information about the places in which meat was prepared or offered for sale, and it amounted, in effect, to delegating to the health commissioner the power to condemn and prohibit the sale of meat or meat products which would injure the public health. The inspectors are specifically directed to consider whether the meats contain dyes, chemicals, preservatives, or other injurious ingredients, just as in the ordinance now before us the zoning commission is required to consider the matters set out in § 3, but general authority to condemn meats found to be "unfit for human food" (that is, "detrimental to the public health") is given in the meat ordinance just as authority is given in Ordinance No. 552 to prohibit the erection of buildings or uses of them which would menace the public security, health, or morals.

In Osborne v. Grauel, 136 Md. 88, 110 Atl. 199, the court declined to compel by mandamus the issuing by the building inspector of a permit for a garage; it appearing that the permit had been disapproved by the mayor under the authority of an ordinance of Baltimore city requiring him to investigate all applications for garages and to approve them before a permit could be granted. The validity of this delegation of power to the mayor seems to have been conceded in the case; the chief point raised being as to the validity of the reasons assigned by him in disapproving the permit. In Creaghan v. Baltimore, 132 Md. 442, 104 Atl. 180, this court sustained as valid an ordinance authorizing the commissioner of health of

133 Atl. 465.)

Baltimore city to prohibit the sale of milk within the city if the producers of the milk did not store, keep, and distribute it in accordance with such regulations as the commissioner might adopt to insure its being safe for human consumption, and also authorizing him to prohibit its sale, if in his "opinion" it was kept, stored, or distributed under such conditions as to render it unsuitable for human food.

In Mutual Film Corp. v. Industrial Commission, 236 U. S. 230, 59 L. ed. 552, 35 Sup. Ct. Rep. 387, Ann. Cas. 1916C, 296, the Supreme Court upheld as valid a statute which delegated to the board of moving picture censors the power to prohibit the exhibition of moving picture films which were not, "in the judgment and discretion of the board of censors of a moral, educational, or amusing tional, or amusing or harmless character."

In United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480, an act of Congress giving the Secretary of Agriculture the power to provide rules governing forest reservations, and making the violation of such rules a criminal offense, was held valid.

In Wilson v. Eureka City, 173 U. S. 32, 43 L. ed. 603, 19 Sup. Ct. Rep. 317, an ordinance requiring the written permission of the mayor of a town before any person was allowed to move a building along the streets was upheld.

In Blue v. Beach, 155 Ind. 121, 50 L.R.A. 64, 80 Am. St. Rep. 195, 56 N. E. 89, it was held that under a general statutory authority to prevent the spread of contagious and

infectious diseases, a rule of the state board of health upon the subject of vaccination was not legislative. And to the same general effect see Boehm v. Baltimore, 61 Md.

259; Downs v. Swann, 111 Md. 53, 23 L.R.A. (N.S.) 739, 134 Am. St.

Rep. 586, 73 Atl. 653; State ex rel.

Ebert v. Loden, 117 Md. 384, 40
L.R.A. (N.S.) 193, 83 Atl. 564, Ann.
Cas. 1913E, 1300; Scholle v. State,
90 Md. 729, 50 L.R.A. 411, 46 Atl.

326; State v. Broadbelt, 89 Md. 565, 45 L.R.A. 433, 73 Am. St. Rep. 201, 43 Atl. 771; Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541, 45 Am. St. Rep. 339, 30 Atl. 648; Isenhour v. State, 157 Ind. 517, 87 Am. St. Rep. 228, 62 N. E. 40; State v. Normand, 76 N. H. 541, 85 Atl. 899, Ann. Cas. 1913E, 996; Train v. Boston Disinfecting Co. 144 Mass. 523, 59 Am. Rep. 113, 11 N. E. 929; Newark & S. O. Horse Car R. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. 697; Mahler v. Eby, 264 U. S. 32, 40, 68 L. ed. 549, 554, 44 Sup. Ct. Rep. 283; Union Bridge Co. v. United States, 204 U. S. 364, 387, 51 L. ed. 523, 534, 27 Sup. Ct. Rep. 367; Marshall Field & Co. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495; Buttfield v. Stranahan, 192 U. S. 470, 48 L. ed. 525, 24 Sup. Ct. Rep. 349; Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. ed. 570, 32 Sup. Ct. Rep. 340.

-delegation of

powervalidity.

The foregoing authorities seem to us to establish conclusively the validity of the delegation of power contained in Ordinance No. 522. It may be that the language used in some of the earlier decisions of this and other American courts is at variance with this conclusion, but certainly the more modern decisions amply and specifically sustain it. The change, if there has been any, is due to the constantly increasing complexity of modern society, and the consequent multiplicity of matters which require the state's attention. The field has become so vast, and the things to be considered so enlarged in number, and so interrelated with one another, that it has been found practically impossible to provide in laws and ordinances specific rules and standards by which every conceivable situation can be measured and determined. The result has been that we have turned more and more to the plan of providing in our laws and ordinances general rules and standards, and leaving to administrative boards and agencies the task of acquiring information,

working out the details, and applying these rules and standards to specific cases. specific cases. This is not considered a delegation of legislative authority, though it probably does represent an expansion of administrative power. We think the ordinance now under consideration is one of this class, and that the rules and standards which it provides for the regulation of the zoning commissioner furnish a sufficient limitation upon the discretion it vests in him.

Such ordinances represent no change in principle. They merely indicate that the courts, faced by at least an apparent necessity, have relaxed to some extent the particularity with which they formerly required the laws and ordinances to set out the rules and standards by which the delegated power was to be limited, and whatever may be said of the wisdom of this relaxation no doubt can now be entertained as to its sanction by the great weight of authority in this country. See cases cited supra.

The cases of Baltimore v. Radecke, 49 Md. 230, 33 Am. Rep. 239, and Hagerstown v. Baltimore & O. R. Co. 107 Md. 178, 126 Am. St. Rep. 382, 68 Atl. 490, have been so often explained and distinguished in prior decisions from cases like the present one that we do not think it would serve any useful purpose to again discuss them, and so we will not do so. And because of a similar frequency of discussion and citation we have also refrained from commenting on the cases of Easton v. Covey, 74 Md. 262, 22 Atl. 266, and Farmers & P. Co. v. Salisbury, 136 Md. 617, 111 Atl. 112.

This brings us to a consideration of that part of Ordinance No. 522 which provides for an appeal from the zoning commissioner to the board of zoning appeals, and from that body to the Baltimore city court. The ordinance provides that on this last-mentioned appeal "the court shall decide whether the order, decision, or determination complained of is arbitrary, unreason

(Md. - 133 Atl. 465.)

able, unwarranted, or unlawful," and the court is also given authority to remand the case for the taking of additional testimony. Section 28 of article 4 of the Maryland Constitution gives the Baltimore city court exclusive jurisdiction of appeals arising under the ordinances of the mayor and city council of Baltimore, and, so far as we are advised, no one has ever seriously questioned the right of the city, under this constitutional provision, to provide in its ordinances for appeals to the Baltimore city court, and such provisions have been made in numerous instances. See ordinances of mayor and city council of Baltimore.

In State ex rel. Baltimore v. Rutherford, 145 Md. 363, 369, 125 Atl. 725, the provisions for an appeal from the board of zoning appeals to the Baltimore city court in Ordinance No. 922 of Baltimore city (subsequently held void on other grounds in Goldman v. Crowther, 147 Md. 293, 38 A.L.R. 1455, 128 Atl. 55), were apparently conceded to be valid, and were so treated by the court. In the case last mentioned the court again intimated, though it expressly refrained from deciding, that these same provisions

132

were valid. And in Baltimore v. Bloecher & Schaff, 149 Md. Atl. 160, we expressly held that the provisions for an appeal from the health commissioner to the Baltimore city court contained in Ordinance No. 431 of the mayor and city council of Baltimore (commonly called the "Meat" Ordinance) were valid; the court saying: "The Baltimore city court having been designated by the Constitution as the tribunal to hear all appeals arising under the ordinances of the mayor and city council of Baltimore, it was

larged or changed its jurisdiction.
And while it provided for no appeal
from the decisions of such agencies
upon issues of facts, nevertheless
persons aggrieved thereby would
not be injured because, if such deci-
sions were unreasonable, arbitrary,
or oppressive, they could be re-
viewed and corrected upon applica-
tion to a court of chancery."

We think these authorities amply
sustain the validity of the provision
for an appeal to
the Baltimore city Constitutional
court, contained in of ordinance-
the ordinance now
before us. Under

case

law-validity

fixing court of
appeal.

these provisions the board of zoning appeals must furnish the court with "all papers, documents, and memoranda" relating to the case appealed. The court is authorized to determine whether the action appealed from was "arbitrary, unreasonable, unwarranted, or unlawful." It is given "power to remand the for the taking of additional testimony, and to pass any order which it may deem proper in the premises," and, finally, it is authorized "to reverse, affirm, or modify the order, decision, or determination complained of." provisions are more ample than the appeal provisions contained in the ordinance approved in Baltimore v. Bloecher & Schaff, supra, and apparently confer a wider jurisdiction than do those provisions. In fact, they seem practically to amount to authorizing a trial de novo on appeal, as did the ordinance considered in State ex rel. Baltimore v. ion, there is nothing in them which Rutherford, supra, and, in our opincould in any way be held to render Ordinance No. 522 invalid.

These

Nor does the failure of the ordinance to provide

to

within the power of that municipal- for an appeal to allow appeal ity, in order to secure uniformity this court render it to highest

in the administration of the law, to provide for an appeal from the determination by administrative or executive agencies of questions of law to that court, and we do not understand that in doing that it en

invalid. There is

court-effect.

nothing in the Constitution requir

ing such a provision, and there
is ample authority sustaining the
validity of laws under which there
is no appeal to the court of appeals,

1

but which nevertheless concern rights just as well established and important as are those involved in this ordinance. Dolfield v. Western Maryland R. Co. 107 Md. 584, 69 Atl. 582; New York Min. Co. v. Midland Min. Co. 99 Md. 506, 58 Atl. 217; Hopkins v. Philadelphia, W. & B. R. Co. 94 Md. 263, 51 Atl. 404; Moores v. Bel-Air Water & Light Co. 79 Md. 391, 29 Atl. 1033; Francis v. Weaver, 76 Md. 457, 25 Atl. 413; Greenland v. Harford County, 68 Md. 59, 11 Atl. 581; Hendrick v. State, 115 Md. 552, 81 Atl. 18; Rayner v. State, 52 Md.

368; Judefind v. State, 78 Md. 510, 22 L.R.A. 721, 28 Atl. 405; Green v. State, 113 Md. 451, 77 Atl. 677.

Without further prolonging this opinion, it is sufficient to say that, for the reasons heretofore given, we think Ordinance No. 522 of the mayor and city council of Baltimore is valid, and we will accordingly affirm the action of the learned court below in overruling the petitioner's demurrer to the defendant's answer, and rendering a judgment for the defendant.

Judgment affirmed, with costs.
Digges and Parke, JJ., dissent.

ANNOTATION.

Delegation by municipality of its powers as to building regulations. [Municipal Corporations, § 49.]

Introductory.

The present annotation is supplemental to that in 43 A.L.R. 834, where the earlier cases may be found. Delegation to private individual.

(Supplementing annotation in 43 A.L.R. 834.)

Zoning ordinance, which makes no division of city into districts, but delegates to the owners of four fifths of the street frontage on any block the power to determine the structures to be erected or altered in that block, is void, as unlawful delegation of governmental power. Glens Falls Standard Oil Co. (1926) 127 Misc. 104, 215 N. Y. Supp. 354. See also Utica v. Hanna (1922) 202 App. Div. 610, 195 N. Y. Supp. 225, cited therein.

Delegation to public official.

V.

(Supplementing annotation in 43 A.L.R. 836.)

Ordinance authorizing zoning commissioner to prohibit the erection or use of buildings or structures, if proposed buildings or use "would menace public security, health, or morals," is not an unconstitutional delegation of power, especially in view of the fact that the ordinance does not vest an unlimited discretion in the zoning commissioner, but requires him to secure information about, and give consideration to, various matters (as to

which see the opinion), and in view of the further fact that in determining what buildings, or the use thereof, would menace the public security, health, or morals, he would be bound by numerous decisions of the highest court of the state, with right of appeal to the injured party, should these limitations be disregarded, to the board of zoning appeals, and thence to the city court. TIGHE V. OSBORNE (reported herewith) ante, 80.

While zoning commissioner can disregard limitations upon his powers, it is not to be presumed that he will do so, nor is such a possibility a proper ground for declaring the ordinance invalid. Ibid.

The reported case (TIGHE V. OSBORNE) it is to be noted, was between the same parties as Tighe v. Osborne (1925) 148 Md. -, 131 Atl. 801, reported in 43 A.L.R. 819 (to which the original annotation was appended), the only difference to be found being in the two ordinances involved. The earlier case involved an ordinance of similar import to that involved in the later case, except that therein the zoning commissioner was given the additional power to prohibit the erection of any building (other than a residence) the use or location of which, in his judgment, "would, in any way,

menace the public welfare;" the effect of the decision in that case being merely to hold that the city could not delegate to anyone the power to decide what was detrimental to the "public welfare." In the case now under consideration there was no such delegation, the authority of the zoning commissioner being limited to prohibiting structures, or uses of them, which would menace the public security, health, or morals: the words "in his judgment," with respect to his power, being also omitted.

Ordinance providing that, before proceeding with the erection or alteration of any building, etc., a permit shall be obtained from the inspector of buildings, is not open to the charge that it is a grant of arbitrary power. Andrew v. Hendryx Co. v. New Haven (1926) 104 Conn. 632, 134 Atl. 77.

Ordinance providing that no permit shall be granted for the erection of a wooden building within fire limits nearer than 110 feet to the outer edge of street pavement is not invalid as conferring arbitrary power or affording opportunity to discriminate between those similarly situated, since it prescribes a standard by which the discretion of the town council is to be controlled. Lovell v. Mt. Vernon (1926) Ky., 284 S. W. 1025.

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Upon the principle that an ordinance which leaves to an executive officer the definition of the thing to which such ordinance applies, such definition not being commonly known, is an unwarranted and void delegation of legislative power to an executive officer, it has been held that an ordinance requiring permit from commissioner of buildings to convert apartment buildings (as defined by the ordinance) into buildings of another

class, including "rooming houses," is invalid, as an unwarranted delegation of legislative authority to an executive officer, because not defining the term "rooming house," that term not being one of generally accepted definition. Chicago v. Matthies (1926) 320 III. 352, 151 N. E. 248. (Generally, as to validity of statute, or ordinance vesting discretion in a public official without prescribing a rule of action, see annotation in 12 A.L.R. 1435.)

In several cases, ordinances conferring powers upon public bodies or officials have been declared invalid, because of the arbitrary power invested under the particular ordinance; these, however, do not discuss the question under consideration, but proceed rather upon the theory that the municipality is itself without arbitrary power in the matter. Generally, such cases are beyond the scope of the present annotation. See, for example, the following recent cases: Ingham v. Brooks (1920) 95 Conn. 317, 111 Atl. 209; Julian v. Golden Rule Oil Co. (1923) 112 Kan. 671, 212 Pac. 884 (city commissioners given arbitrary power with respect to permits); Com. v. House (1917) 177 Ky. 829, 198 S. W. 218 (board of council given arbitrary power to discriminate between citizens); Bloomfield v. Bayne (1924) 206 Ky. 68, 266 S. W. 885 (town board given arbitrary power to discriminate between citizens); Slaughter v. Post (1926) 214 Ky. 175, 282 S. W. 1091 (mayor and general council given arbitrary power); South Orange v. Heller (1921) 92 N. J. Eq. 505, 113 Atl. 677 (board of trustees given too great discretionary powers); Keavey v. Randall (1923) - N. J. L. 122 Atl. 379 (town council given arbitrary power to refuse permits). L. S. E.

DESSA HILLMAN, Admrx., etc., of W. A. Hillman, Deceased, Appt.,

V.

CITY OF ANNISTON.

Alabama Supreme Court - May 6, 1926.

(214 Ala. 522, 108 So. 539.)

Municipal corporations, § 303- liability for injury to convict.

1. A municipal corporation is liable for injury to or death of a prisoner

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