Bowie Inn, Inc. v. City of Bowie

Equity No. D-5035 (Md. Cir. Ct. December 17, 1971)

An ordinance passed by the city of Bowie requires a deposit of at least 5 cents to be paid on all soft drink and malt beverage containers sold in the city. The City Manager is empowered to enter stores to inspect for violations. The plaintiffs, soft drink bottling companies and liquor retailers, challenged the constitutionality of the ordinance. The court held that the ordinance, which had as one of its purposes combating litter, was within the delegated authority of a city council to enact. The City Manager's power to inspect, although stated in the ordinance to be universal, was limited to retail sellers of such beverages located within the city limits. The state's statutory authority to control deposits charged by manufacturers and wholesalers of beer on returnable containers does not conflict with this ordinance, nor has the state preempted the control of matters relating to alcoholic beverages. The ordinance adopts a reasonable classification, since the council could find that a certain class of litter was capable of being controlled by this deposit arrangement. The possible additional inconveniences to the retailers caused by this ordinance do not rise to the dignity of a burden on interstate commerce. Motion for summary judgment for the defendant city granted.

Counsel for Plaintiffs
Henry Leonnig
Sachs and Baron
1605 Mercantile Bank and Trust Bldg.
2 Hopkins Plaza
Baltimore, Maryland

Daniel I. Sherry
6796 Laurel-Bowie Road
Bowie, Maryland 20715

Counsel for Defendants
Daniel E. Sharpe
Walter G. Lohr, Jr.
Piper & Marbury
900 First National Bank Bldg.
Light and Redwood Streets
Baltimore, Maryland 21202

John E. Bryson
Natural Resources Defense Council
1600 20th Street, N.W.
Washington, D.C. 20036

[2 ELR 20056]

On March 8, 1971, the City Council of Bowie, Maryland (Council) passed Ordinance O-4-71. The Ordinance requires that a deposit of at least five cents be imposed by retailers on all soft drink and malt beverage containers sold within the city limits of Bowie. The deposit is to be refunded when the empty beverage containers are returned to the retail outlet. The Ordinance further provides that the City Manager or his designee has authority to enter and inspect retail establishments to determine if the retailer is in compliance with the provisions of the Ordinance. Violation of the Ordinance constitutes a misdemeanor, which may be punished by a fine not exceeding one hundred dollars or imprisonment for thirty days or both such fine and imprisonment. Each day's violation of the provisions of the Ordinance constitutes a separate offense.

The validity of the Ordinance has been challenged in two declaratory judgment actions. The various plaintiffs in these actions include soft drink bottling companies and liquor retailers. The cases have been consolidated for trial because they arise out of the same subject matter, viz. the Ordinance, and involve common questions of law and fact.

Motions for summary judgment r partial summary judgment were filed by plaintiffs Bowie Inn, Inc., et al, and by Prince George's County, one of the defendants.

Maryland Rule 610 provides that summary judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. In the Court's opinion, there is no dispute as to the material facts. For reasons which follow, we believe that the defendant's motion for summary judgment should be granted.

The essential contentions of the plaintiffs include (1) that the Ordinance is beyond the legislative authority or power of the Council, (2) that the inspection power conferred upon the city manager is beyond the competence of the Council, (3) that the Rodinance conflicts with Article XI-E, Section 6, of the Maryland Constitution; with Code, Article 33B (Environmental Service); (4) that the Ordinance creates a prohibited class of non returnable containers as being subject to the deposit regulation, which classification is arbitrary and discriminatory, contrary to and in violation of Section 1 of the 14th Amendment to the Federal Constitution, and (5) that the Ordinance constitutes an undue [2 ELR 20057] burden on interstate commerce in violation of the Federal Constitution.

Before reaching these five issues, we believe it would be helpful to mention some of the general considerations pertaining to judicial review of ordinances. In construing ordinances, the presumption that they are valid is favored by the Courts, and all reasonable doubts are to be resolved to that end if possible. Groh v. Washington County, 245 Md. 441, 446, 226 A 2d 264, (1966); B & O R.R. Co. v. Wright, 198 Md. 555, 84 A.2d 851 (1951); 62 CJS, Municipal Corporations, Section 442. In the Groh case, the Court of Appeals cited with approval McQuillin, Municipal Corporations, (3d Ed.), section 20:41:

"Ordinances are to be construed in light of, and in harmony with applicable provisions of charter, state law, constitution and public policy. A particular ordinance is to be construed with reference to the grant of power, in charter or statute, to enact it. Moreover, an ordinance enacted pursuant to a statute should be construed by reading it with the statute, and if the language of both are in substance alike the presumption is indulged that the ordinance was designed to follow the statute."

Ordinances must receive a reasonable construction, and application. The rules to be applied are the same as those applied in the construction of statutes enacted by the legislature. 56 Am Jur 2d, Municipal Corporations, Section 398.

It is now fairly well settled by decisions of the Supreme Court that municipal ordinances, and even legislative enactments, undertaking to regulate useful business enterprises, are subject to investigation in the courts with a view to determining whether the ordinance is a lawful exercise of the the police power or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with the constitutional right to carry on a lawful business, to make contracts, or to use and enjoy property. Spann v. Gaither, 152 Md. 1, (1926); State v. Hyman, 98 Md. 596, (1904); 56 Am Jr 2d, Municipal Corporations, Section 490.

The Legislative Power of the Council

The power of the Council to pass an ordinance must be determined by the authority conferred upon it by the Legislature, either by express grant or by fair and reasonable intendment. Sprigg v. Garrett Park, 89 Md. 409, 412, (1899). State v. Mott, 61 Md. 303, (1883). The legislature has an inherent right to prescribe, within constitutional limitations, reasonable regulations, which are necessary to protect the public health, comfort, order, safety, convenience, morals, and general welfare. This right may be delegated to the municipalities of the State. LaRoque v. County Commissioners of Prince George's County, 233 Md. 329; 196 A 2d 902 (1963); Stevens v. City of Salisbury, 240 Md. 556, 564, 214 A 2d 775 (1964). When restrictions 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. Pocomoke City v. Salisbury, 162 Md. 368, 376, 159 A. 902 (1932). LaRoque v. County Commissioners, supra.

An ordinance will be valid provided it be reasonable and consonant with the general powers and purposes of the corporation, and not inconsistent with the laws and policy of the State. Commissioners of Easton v. Covey, 74 Md. 262, 267, (1891).

Article XI-E of the Maryland Constitution, known as the Municipal Home Rule Amendment, was enacted and ratified in 1954. Section 3 of the Article provides:

"Any such municipal corporation, now existing or hereafer created, shall have the power and authority, (a) to amend or repeal an existing charter or local laws relating to the incorporation, organization, government or affairs of said municipal corporation heretofore enacted by the General Assembly of Maryland and (b) to adopt a new charter, and to amend or repeal any charter adopted under the provisions of this Article."

This Court has taken judicial notice of the Charter for the City of Bowie. Under the heading of "General Powers" the Charter provides as follows:

"18. (General Powers). The Council shall have the power to pass all such ordinances not contrary to the Constitution and laws of the State of Maryland or this Charter as it may deem necessary for the good government of the City; for the protection and preservation of the City's property, rights, and privileges; for the preservation of peace and good order; for securing persons and property from violence, danger, or destruction; and for the protection and promotion of the health, safety, comfort, convenience, welfare and happiness of the residents of the City and visitors thereto and sojourners therein.

19. (Exercise of Powers). For the purpose of carrying out the powers granted in this Charter, the Council may pass all necessary ordinances. All the powers of the City shall be exercised in the manner prescribed by this Charter, or if the manner be not prescribed, then in such manner as may be prescribed by ordinance."

The "General Powers" section of the Charter concludes by setting forth provisions for enforcement of ordinances.

One argument advanced by the plaintiffs focuses on Article 23 A, Section 2, (Code, 1966 Repl. Vol.) which sets forth thirty express powers of municipal corporations. Plaintiffs argue that since none of those powers authorize municipalities to enact an ordinance for the environmental best interest of such municipalities, the subject ordinance is beyond the Council's legislative power. We do not believe that Article 23 A, Section 2, is controlling in this controversy. Section 4 of the Article 23 A makes Section 2 inapplicable to several areas of the state, of which Prince George's County is one, and Bowie is located in Prince George's County.

Instead, we believe that the source of the Council's legislative power is the Bowie Charter enacted pursuant to the Home Rule Amendment of the Maryland Constitution. In Bostock v. Sams, 95 Md. 400, 412 (1902) the Court of Appeals stated that all the powers of a municipal corporation are derived from the law and its charter, and no ordinance of such corporation can enlarge, diminish, or vary its power. It is generally stated that the provisions of a charter adopted and approved in accordance with the provisions for home rule become the organic law of such municipality insofar as municipal affairs are concerned. Hudson Motor Car Co. v. Detroit, 282, Mich. 69, 275 N.W. 770, 113 ALR 1472, 56 Am Jur 2d, Municipal Corporations, Section 127.

Another contention of the plaintiffs is that the Council has no power to legislate with regard to environmental protection because the word environment, as defined by Webster's Dictionary, includes all conditions, circumstances, and influences surrounding an organism. Plaintiffs reason that because the Council can't regulate all conditions and circumstances surrounding its residents, the ordinance is beyond the Council's legislative power. We do not agree with his reasoning. The preamble of the ordinance states that the measure is enacted in the best interest of environmental protection. However, in determining whether the ordinance is within the Council's legislative power, we do not believe that we should focus only on the words "environmental protection", but rather must consider the ordinance in its entirety.

The primary and fundamental purposes in construing and interpreting a statute or ordinance are to ascertain, and to carry out, the true intention of the law. McKeon v. State for Use of Conrad, 211 Md. 437, 127 A 2d. 635 (1957). In Smith v. Higinbothom, 187 Md. 115, 126, 127, (1946), the Court stated:

"It is a cardinal rule of statutory construction that the intention of the Legislature should be sought in the first instance in the words of the statute. Where the language is clear and free from doubt, the Court has no power to evade it by forced and unreasonable construction in order to assert its own ideas or policy or morals. * * * However, as we have stated, * * * the meaning of the plainest words in a statute may be controlled by the context. If a word is fairly susceptible of more than one interpretation, the Court should seek the legislative intention by considering the cause or necessity of the enactment and the mischief it was intended to remedy, and adopt the meaning which will harmonize with the general scheme of the statute and assist in carrying out the legislative purpose. * * *

[2 ELR 20058]

The real intent, when ascertained, will always prevail over the literal sense of the language, because both the canons of verbal criticism and the rules of grammatical construction must alike yield to the manifest spirit and intent of an enactment. * * *"

The term "environmental protection" is a very broad one, and we cannot say that its meaning within the ordinance is clear. The City of Bowie has argued, both in its briefs and orally at the hearing, that the ordinance was enacted as a waste control measure. The object of the ordinance was allegedly that of reducing the volume of litter on the city's roads and public areas. It was apparently thought that reduction of that litter volume would have the attendant result of reducing the expense the City incurred in cleaning up and removing such litter.

It seems to us that if the ordinance proved to be successful, i.e., in reducing both roadside litter and costs to the City in disposing of such litter, that an esthetic incidental result would also be produced. By this we mean that the ordinance would have the incidental result of enhancing the appearance of the community.

We realize that esthetic conditions alone or as the main end are insufficient to support the invocation of the police power. Chicago Park District v. Canfield, 19 NE 2d 376, 380, 370 Ill. 447, 121 ALR 557. However, if a regulation finds a reasonable justification in serving a generally recognizable ground for exercise of that power, the fact that esthetic considerations play a part in its adoption does not affect its validity. Chicago Park District v. Canfield, supra. State v. Kievman, 116 Conn. 458, 165 A 601, 604, 88 ALR 962; Merced Dredging Co. v. Merced County, D.C. Cal., 67 F.S. 598. If the primary and substantive purpose of the legislation is such as justifies the act, considerations of taste and beauty may enter in, as auxiliary. Chicago Park District v. Canfield, supra, at 380.

The ordinance was ostensibly enacted to combat the mischief of substantial littering along city roads and public areas. We have no reason to believe that the primary purpose of the ordinance is other than that of waste control. We believe that a rational interpretation of the ordinance calls for the conclusion that the true and primary intention of the Council in enacting the Ordinance was that of controlling litter in the public places mentioned.

The language of Article XI-E, Section 3 of the Maryland Constitution is broad with respect to the power of municipal corporations to deal with their own affairs. As to what comprises municipal affairs, in 56 Am Jur 2d, Municipal Corporations, Section 128, it is said:

"It is very difficult to lay down any definite and comprehensive statement of what constitutes municipal affairs. * * * The term * * * is not a fixed quantity, but fluctuates with every change in the conditions upon which it is to operate. * * * The handling of the subject by the necessarily slow process of judicial inclusion and exclusion until some workable theory of local government can be developed has resulted in a long period of uncertainty and a multiplicity of legal questions and local quarrels over what is appropriate for the state, and what for municipal, regulation."

The concept of public welfare is broad and inclusive. Berman v. Parker, D.C., 75 Sup. Ct. 98, 348 U.S. 26, 99 L. Ed 27. Further, it is generally stated that broad police powers are to be liberally construed. In Montgomery County Citizens League v. Greenhalgh, 253 Md. 151, 252 A 2d 242, (1969), the Court of Appeals was presented with the question of whether legislative powers delegated to the County Council embraced the power to pass a fair housing law. In upholding the Council's action, Chief Judge Hammond said for the Court, at 161:

"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 powers clause,' 6 McQuillin, Mun. Corporations, (3d Ed)Sect. 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 U.S. Constitution, treaties and statutes, and the laws and policy of the State.'"

In Baltimore v. Employers' Ass'n., 162 Md. 124, 130, (1931), the Court of Appeals stated:

"The law is clear that the municipalities in general, possess and can exercise powers granted in express words; powers necessarily or fairly implied in or incident to the powers essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Dillon on Municipal Corporations, (4th Ed) p. 145, section 89. The same authority declares that 'any reasonable, fair doubt concerning the existence of such power is resolved against the corporation and the power is denied by the courts' (p. 146). 'Of every municipal corporation the charter or statute by which it is created is its organic act. Niether the corporation nor its officers can do any act or make any contract or incur any liability not authorized thereby, or by some legislation applicable thereto. All acts beyond the scope of the powers granted are void.' (p. 46)." Rossberg v. State, 111 Md. 394, 74 A 581 (1909); Rushe v. Hyattsville, 116 Md. 122, 81 A 278, (1911); Schultz v. State, 112 Md. 211, 76 A 592, (1910), Jones v. Breoning, 135 Md. 237, 108 A 785 (1919); St. Mary's School v. Brown, 45 Md. 310, 330-331, (1876).

Also in this regard see McRobie v. Town of Westernport, 260 Md. 464, 272, A 2d 655, (1971).

In deciding the question of constitutional power, courts will assume the existence of a state of facts giving validity to the legislation, unless the evidence is to the contrary, or unless facts of common knowledge or other matters which may be judicially known and noticed compel otherwise. Merced Dredging Co. v. Merced County, supra, at 605.

Upon our application of the principle of the foregoing authorities to the facts before us, we believe that the Council does have the authority to enact an ordinance of this nature. The Bowie Charter contains what we feel may rightly be called a general welfare or general grant of powers clause. Under this broad grant of power the Council passed the subject ordinance, which it apparently thought was necessary and beneficial to the city. We believe that waste control is consonant with the general powers and purposes of this municipal corporation as set forth in its charter.

But aside from the consideration of the Charter's grant of broad powers, we note that the charter contains the provision relating to the "maintenance of good order" within the community. We believe that waste control is fairly within the purview of "maintenance of good order".

There is no doubt but that the means established by the Ordinance to control waste are novel, but a technique chosen by the Legislature is not necessarily bad for that reason. Allied American Co. v. Commissioners, 219 Md. 607, 620, 150 A 2d 421 (1958).

The Inspection Power of the City Manager

The plaintiffs have challenged the "Section 3 — Inspection" Provision of the Ordinance as being beyond the legislative authority of the Council. That section states as follows:

"The City Manager, or his designee, shall have the authority to enter upon the premises of any firm, individual, corporation, partnership or vendor selling beverages and which is licensed to conduct a business under the laws of this State, for the purpose of performing inspections to determine if said firm, individual, corporation, partnership, or vendor is in compliance with the provisions of this Ordinance."

The plaintiffs argue that this inspection power is too broad, for it purports to give the city manager the power to inspect any licensed business of the State, wherever situate. While the Ordinance does not expressly limit the inspection power of the City Manager to the confines of the city limits of Bowie, we believe that this [2 ELR 20059] limitation is implicit. In Section 2 of the Ordinance "City" is defined as meaning the corporate limits of the City of Bowie. A reasonable construction of the Ordinance as a whole fairly indicates that the City Manager or his designee is empowered to conduct inspections only within the Bowie city limits. We feel it equally implicit that such inspections may be carried out only upon such licensed business of the city which sell the type of beverages comprising the subject matter of the ordinance.

The Alleged Conflict of the Ordinance with State and Federal Laws

Having determined that the City has the legislative power to enact legislation of this type, our inquiry here is whether the Ordinance conflicts with any public general law or with the State or Federal Constitutions. If there be an irreconcilable conflict, the ordinance must yield. Heubeck v. City of Baltimore, 205 Md. 203, 211, (1954).

The plaintiffs contend that the Bowie ordinance conflicts with Article XI-E, Section 6, of the Maryland Constitution, with Article 33 B (Environmental Service), and with Article 2 B (Alcoholic Beverages), Sections 185 and 186 of the Maryland Code of Laws.

The essence of Article XI-E, Section 6, is that local laws adopted pursuant to home rule charters shall be subject to applicable state law. We have examined the statutes in which a conflict with the ordinance is alleged, and have determined that no such conflict exists.

In Heubeck v. City of Baltimore, supra, at 209, the Court stated:

"A conflict [between an ordinance enacted under the police power of Baltimore City and a public general law] only exists when an ordinance prohibits something permitted by the Legislature or permits something prohibited by the Legislature. * * *

If a local law or ordinance conflicts in any manner with the Constitution or a Public General Law, then the local law is invalid. The test is concisely stated in Rossberg v. State, 111 Md. 394, 74 A. 581 * * * in which it was said that 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."

The crux of the plaintiffs' argument deals with Article 2B, Sections 185 and 186. Those sections read as follows:

"Sect. 185. Rules and regulations by Comptroller — Generally.

The Comptroller is hereby directed and empowered to make, amend, alter and publish rules and regulations for the proper enforcement of his duties under this article. He is authorized to adopt rules and regulations in regard to labeling and advertising similar to those adopted by the Federal Alcohol Administration; nature, form and capacity of all containers; credit sales; records to be kept by licensees and others engaged in the business; and such other subjects as may be deemed necessary for the proper administration of his duties under this article. * * *

"Sect. 186 Same — Deposit on returnable beer containers.

The Comptroller is hereby authorized and empowered to make, amend, alter and publish rules and regulations regarding the amount of deposit on returnable beer containers which shall be charged and collected by manufacturers and wholesalers of beer."

A comparison of the Bowie ordinance with the above statutes indicates that there is no conflict between them. Sect. 186, for example, speaks of deposits to be charged by manufacturers and wholesalers of beer on returnable containers. The ordinance deals with beer retailers, and with non-returnable containers.

Plaintiffs have raised the issue that the alcoholic beverage field has been pre-empted by the state and this results in the ouster of local power to legislate. In City of Baltimore v. Sitnick and Firey, 254 Md. 303, 255 A 2d 376, (1969) the Court of Appeals was confronted with the issue of the validity of a Baltimore City ordinance which imposed a higher minimum wage than was imposed by state law. In sustaining the ordinance, the Court reviewed numerous cases and said:

"A distillation of the opinions we have cited leaves the residual thought that a political subdivision may not prohibit what the state by general public law has permitted, but it may prohibit what the state has not expressly permitted. Stated another way, unless a general public law contains an express denial of the right to act by local authority, the State's prohibition of certain activity in a field does not impliedly guarantee that all other activity shall be free from local regulation and in such a situation the same field may thus be opened to supplemental local regulation." [Emphasis in original].

As we have said, we find no conflict as to the statutes mentioned. Absent an actual conflict of subject matter between ordinance and statute, it is unnecessary to decide the question of whether the Legislature has intended to bar local activity in a field or whether supplemental local regulation would be permissible.

The Question of Improper Classification

The plaintiffs allege that the ordinance is arbitrary and discriminatory in contravention of Section 1 of the 14th Amendment to the Federal Constitution. Their argument is that since litter from soft drink and beer containers comprises but a small percentage of all roadside litter, that to single out these containers as the subject of the ordinance is therefore discriminatory and arbitrary.

The equal protection clause of the 14th Amendment does not prohibit a municipality with properly delegated powers from enacting ordinances based on a reasonable classification of the objects of the legislation or of the persons whom it affects. 56 Am Jur 2d Municipal Corporations, Section 365. In Baltimore v. Hampton Court Co., 138 Md. 271, (1921), the Court of Appeals cited Barbier v. Conolly, 113 US 27, wherein petitioner sought the protection of the 14th Amendment, and said:

"Class legislation, discriminating among some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment."

In Connolly v. Union Sewer Pipe Co., 184 US 540, 22 S Ct. 431, 439, 46 LEd 679, it was said:

"This court has held that classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. * * * But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the 14th Amendment forbids this."

In Compensation Board v. Albrecht, 183 Md. 87, 93, (1944), it was said:

"However, to avoid unconstitutionality, a statute, which applies only to those persons who fall within a specified class, must be reasonable and not arbitrary in its classification, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, in order that all persons in similar circumstances will be treated alike. Godsol v. Michigan Unemployment Comp. Comm'n., 302 Mich. 5 N W 2d 519, 142 ACR 910."

In Dasch v. Jackson, 170 Md. 251, 265, (1936), Judge Offutt said for the Court:

"So, while the State has the power, for purposes of taxation, or for the legitimate protection or promotion of some substantial public interest, to classify the objectives upon which the power is exercised, the classification must have some rational basis, and the operation of the law upon persons or property within the class must be uniform and equal."

[2 ELR 20060]

The main object sought by the ordinance is that of reducing the volume of waste found along city roads and in public areas. Reducing the amount of this waste would allegedly reduce the expense to the city of removing trash from these areas. The Council has apparently found that a certain portion of roadside litter is comprised of non-returnable beer and soft drink containers. We think it is reasonable to assume that the Council was unable to "classify" other types of trash found on city property so as to subject this trash to a deposit regulation as well. Glass bottles and metal cans are largely indestructible unless subjected to physical stress, and accordingly these types of containers could be clearly singled out and identified from amid a mass of roadside litter. The Council is seeking to discourage the populace from throwing bottles and cans onto roads and public areas, and apparently believes that a deposit of at least five cents will be a sufficient financial deterrent.

It has been said that the courts, in reviewing municipal ordinances, have consistently proceeded on the premise that local municipal authorities are presumed to have, and do have knowledge of local conditions, and have been induced by competent reasons to take the action which has been so taken, so that their exercise of discretion with reference to the needs of the local community should be respected. 56 Am Jur 2d, Municipal Corporations, Section 391, citing Goreib v. Fox, 274 U.S. 603, 47 S. Ct. 675, 71 L. Ed 1228, 53 ALR 1210. Within the realm of the debatable, within the field where reasonable men may differ, the legislative will reigns — the representatives of the majority may have their way. Merced Drainage Co. v. Merced County, supra, at 610, citing Williams v. Mayor, 289 U.S. 36, 42, 53 Sup. Ct. 431, 77 L. Ed. 1105.

The plaintiffs advance the contention that the ordinance is based on a false premise if the Council believes a reduction in litter collection costs will be achieved. Plaintiffs argue that the City will have to pick up the same amount of refuse, irrespective of whether it picks up the bottles and cans from the roadsides or from the trash bins of the retailers to whom the bottles are returned for deposit refunds. We do not wish to speculate as to whether it is less expensive for the City to collect litter from trash bins than from the roadsides, or whether the same total amount of litter would be collected with the ordinance in effect as would be otherwise. We trust that the Council gave these matters ample consideration prior to the enactment of the ordinance. As we have said, municipal authorities are presumed to have knowledge of local conditions and that they have been induced by competent reasons to take the action so taken.

Plaintiffs have implied that the ordinance is not a feasible one, and is an irrational exercise of power. We feel no further comment along this line is necessary. The wisdom of the new policy is not for the court to consider. Taxi Association v. Yellow Cab Co., 192 Md. 551, 558, (1948).

We believe that by their very physical nature, non-returnable soft drink and beer bottles and cans comprise a clearly identifiable class of litter. We feel that the physical nature of these bottles and cans constitutes a reasonable ground of difference (from other trash) on which to base the classification. Further, all retailers of soft drinks and malt beverages are subject to the ordinance; hence, there is no discrimination as to the persons to whom the ordinance applies. It seems to us that the classification was not arbitrary, and that it was made on a rational basis with respect to the object of the ordinance.

The Question of Interference with Interstate Commerce

The plaintiffs contention in this regard is that the ordinance will have the effect of causing a loss of business to city retailers of soft drinks and malt beverages. They argue that customers will seek to avoid paying the five cent deposit on non-returnable containers by purchasing their beverages from competing retailers located outside of the city limits. It is also adduced that the ordinance will burden the retailers subject to the ordinance by causing them to incur additional labor expense to handle the refund aspect of the ordinance.

It is generally said that a statute amounting to a practical prohibition of a lawful business is invalid. State v. Caspare, 115 Md. 7, 80 A. 115 (1911). Further, the constitutionality and reasonableness of a law is to be tested not by what has been done under it, but by what may by its authority be done. Ullman v. Baltimore, 72 Md. 587, (1890), cited in State v. Hyman, 98 Md. 596, 607, (1903); Levering v. Park Commissioners, 134 Md. 48, 53, (1918).

In State v. Caspare, supra, at 26, the Court of Appeals said:

"To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police power is not final or conclusive but is subject to the supervision of the courts." [citing Lawton v. Steele, 152 US 133].

"If these factors or requirements do not appear, then any legislative enactment under the guise of protecting the public interest is repugnant to the 14th Amendment of the Constitution and is, therefore, void."

If the ordinance in question prohibited plaintiff from carrying on its business, it would be clear that the bounds of reason had been exceeded — that the legislative branch had arbitrarily gone beyond the necessities of the case. Merced Drainage Co. v. Merced County, supra, at 608.

It seems probable that the observance of the ordinance will indeed impose some additional burden on the retailers. They will undoubtedly have to issue customer receipts for the bottle deposits received, or mark the containers in some way so as to be able to identify containers purchased from them so that they will lose no money in refund transactions. It is also reasonably forseeable that some additional expenses of handling the bottles and cans will be involved. There may even be some loss of business. This notwithstanding, these burdens do not seem so substantial that we could classify them as unduly oppressive or unusually and unnecessarily restrictive as to constitute a practical prohibition upon the lawful occupation of being a soft drink or malt beverage retailer.

The general rule is that the courts will not hold that a statute violates the Federal or State Constitution unless the alleged violation is unmistakably clear and palpable. Kirkwood v. Provident Savings Bank of Baltimore, 205 Md. 48, 106 A 2d 103, (1954). Plaintiffs have alleged that the ordinance will have the practical effect of stopping that sale of beverages in non-returnable containers. Thus, they argue that a bar on interstate commerce will be imposed, since many suppliers of Bowie retailers are located in the District of Columbia.

We do not feel that it can be said with any reasonable certainty that the total effect of the ordinance will be to produce a situation of this gravity. Plaintiffs' fears seem to us to be quite speculative. We do not find that any clear and palpable constitutional violation results or is imminently certain to result from the ordinance's operation. Accordingly, we find that the issue of infringement of interstate commerce is uncertain and remote, and therefore not justiciable.

Assuming arguendo, however, that we were to view the interstate commerce question, as presently justiciable, we would hold that the ordinance imposes no prohibitive, unduly burdensome or material restraint, if in fact it imposed any restraint at all. In Southern Pacific Company v. Arizona, 325 U.S. 761, 89 L.Ed. 1915, 1925, it was said:

"There has thus been left to the states wide scope for the regulation of matters of local state concern, even though it in some measure affects the commerce, provided it does not materially restrict the free flow of commerce across state lines, or interfere with it in matters with respect to which uniformity of regulation is of predominant national concern."

In consideration of the foregoing, it is this 17th day of December, 1971, by the Circuit Court for Prince George's County, [2 ELR 20061] Maryland,

ADJUDGED, ORDERED AND DECREED, that the Defendant Prince George's County's Motion for Summary Judgment be and hereby is granted, and further

ADJUDGED, ORDERED AND DECREED, that Bowie City Council Ordinance 0-4-71 is valid, legal, and binding except as to the provisions of the Ordinance respecting the inspection powers of the City Manager or his designee. As to such inspection powers, we hold, as we have said, that the City Manager or his designee is empowered to conduct inspections only within the city limits of Bowie and further, that such inspections may be carried out only upon such licensed businesses which sell the type of beverages which comprise the subject matter of the Ordinance.