O'DONNELL, J., delivered the opinion of the Court.
In 1935 the Legislature by Chapter 282 enacted twenty-six new sections to Article 43 [§§ 395-420 inclusive] of the Annotated Code under the title "Health", Sub-title "Hairdressers and Beauty Culturists."
Included among those enactments was a section captioned "Student Practice Upon the Public for Pay" which prohibited any school of beauty culture from making any charge "whatsoever for treatment by its students or for materials used in such treatment."
In 1947 the Legislature authorized clinical work by students, after the student had completed 500 hours of fundamental training. The section prohibiting any charge "whatsoever" for treatment by students in schools of beauty culture — the section here in controversy was amended to read as follows: "No school of beauty culture shall, directly or indirectly, charge any money whatsoever for treatment by its students and may charge only for the actual cost of materials used in such treatments, but no charge shall be made for service supplie[s] (sic)."
At the same session, in supplementation of the prohibition against such schools of beauty culture charging "any money whatsoever for treatment by its students," the General Assembly enacted a new section [Art. 43, § 537 (b), Ann. Code (1971 Repl. Vol.)] which provides:
Despite this legislative history and revision no steps were apparently taken to enforce Art. 43, § 537 (a) until March 6, 1962, when the members of a newly-constituted Board of Cosmetology, by letter, admonished the various private schools of beauty culture within the State "to reduce their clinic prices to `cost of materials'."
The appellants, comprising fifteen (15) separate privately operated schools of beauty culture and the Maryland Association of Beauty Schools, Inc., on March 15, 1963, in the Circuit Court No. 2 of Baltimore City, filed a petition requesting that Art. 43, § 537, be declared unconstitutional and the Board of Cosmetology be enjoined from enforcing it. After a hearing the lower court (Jones, J.), on April 10, 1963, without prejudice, issued an interlocutory injunction (and maintained the status quo)
After a demurrer on behalf of the Board had been overruled (Perrott, J.) and its Answer filed, both the appellants and the Board filed Cross-Motions for Summary Judgments — each alleging that there was "no genuine dispute as to material fact."
After a hearing on the respective motions — but before they were decided — the appellants, on January 12, 1972, filed a petition to amend their complaint and to ask, by way of alternative relief, that the court pass an order construing the phrase "the cost of materials", "so as to allow a reasonable schedule of prices to be charged by the beauty school clinics."
The Chancellor (Cardin, J.) on January 17, 1972 by his memorandum and decree, denied the appellants' Motion for Summary Judgment, granted the Board's Motion and declared that the provisions of Art. 43, § 537 (a) were constitutional. At the same time, "at the request of counsel", the court retained jurisdiction over the subject-matter relating to any "schedule of prices" and referred that issue to the Board "in order that they may promulgate rules and regulations by which the `cost of materials' may be determined."
The appellants, from the decree upholding the constitutionality of the statute, here contend: (a) that it was error for the trial court to have denied their Motion for Summary Judgment because the pleadings "established a genuine dispute as to material facts", (b) that it was error to grant the Board's Motion for Summary Judgment upon the uncontroverted facts presented by the pleadings, (c) that Art. 43, § 537 (a), limiting the charges made in beauty school clinics to "cost of materials" is unconstitutional and invalid, and (d) that the State Board of Cosmetology is estopped, or barred by
(a) and (b) RULING ON MOTIONS FOR SUMMARY JUDGMENT
The appellants, in support of their contention that their Motion for Summary Judgment was improperly denied and the Board's Motion erroneously granted, contend that no allegations of facts were made by the Board attempting to controvert the allegations set forth in their petition; that the "regulations and practice of the Board should have been given weight in view of the reliance [thereon] by the beauty school industry for a period of twenty-eight years"; and that the Board had failed to controvert the appellants' allegations that they had expanded their facilities, made improvements and established new schools in reliance upon the practice authorized by the Board, nor was their allegation controverted that in the event they were limited to charging the "cost of materials", then tuition would have to be increased.
The Board, by its Answer, admitted the majority of the allegations made by the appellants, but denied that it "by its rules and regulations had allowed the schools to reflect in their charges the cost of administration and the cost of materials." It was further denied that the provisions of Art. 43, § 537, were not a valid exercise of the police power and denied that the appellants would suffer "irreparable injury." As to the remainder of the appellants' allegations, the Board pleaded that it was "without knowledge" — amounting to a denial, under Maryland Rule 372 a 2.
The appellants earnestly argue that the Answer filed by the Board established a genuine dispute as to material facts and it was thus error to grant the Board's Motion; by the same logic — though they allege the pleadings establish a genuine dispute as to material facts — they contend that they were entitled to summary relief.
A bare allegation in a general way that there is a dispute as to material facts is never sufficient to defeat a motion for summary judgment. Melbourne v. Griffith, 263 Md. 486, 283 A.2d 363 (1971); nor is the mere filing of an Answer to a bill of complaint necessarily fatal to a motion for summary judgment, particularly where the Answer does not warrant a finding that there is a genuine dispute as to material facts between the parties. Burrell v. Frisby, 212 Md. 181, 129 A.2d 75 (1957).
Even where it is shown that there is a dispute as to a fact, when the resolution of that factual dispute is not material to the controversy, such dispute does not prevent the entry of summary judgment. Shaffer v. Lohr, 264 Md. 397, 287 A.2d 42 (1972); S.L. Hammerman Organization, Inc. v. Community Health Facilities, Inc., 264 Md. 37, 50, 284 A.2d 599, 605 (1971); Meola v. Bethlehem Steel Co., 246 Md. 226, 239-40, 228 A.2d 254, 262 (1967); a dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment. Daniel v. Kensington Homes, Inc., 232 Md. 1, 13, 192 A.2d 114 (1963); Parklawn v. Nee, 243 Md. 249, 254, 220 A.2d 563 (1966); Rooney v.
As aptly stated by Judge Powers, for the Court of Special Appeals, in Knisley v. Keller, 11 Md.App. 269, 272-3, 273 A.2d 624 (1971), "... The function of the trial judge [in connection with a motion for summary judgment] is much the same as that he performs at the close of all the evidence in a jury trial when motions for directed verdict or requests for peremptory instructions require him to decide whether an issue requires resolution by a jury, or is to be decided by the court as a matter of law." See also Rooney v. Statewide Plumbing, supra.
In reviewing the propriety of the granting of a summary judgment our concern is primarily with deciding whether a factual issue does exist which is material to the resolution of the controversy. See Brown v. Suburban Cadillac, supra; Rooney v. Statewide Plumbing, supra. Where the record shows that there is no such genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and that the movant is entitled to judgment, the entry of summary judgment is proper. S.L. Hammerman Organization, Inc. v. Community Health Facilities, Inc., supra.
As a general rule constitutional questions are not to be dealt with abstractly and this court will not decide constitutional questions except when concrete and specific issues are raised by actual ones. See Hammond v. Lancaster, 194 Md. 462, 471, 71 A.2d 474, 479 (1950) (Motion to Stay denied, 339 U.S. 908); Tanner v. McKeldin, 202 Md. 569, 580, 97 A.2d 449, 454 (1953); Givner v. Cohen, 208 Md. 23, 37, 116 A.2d 357, 363 (1955); State v. Cherry, 224 Md. 144, 167 A.2d 328 (1961); Board of Public Welfare v. Myers, 224 Md. 246, 252, 167 A.2d 765, 768 (1961). The provisions of the Uniform Declaratory Judgments Act (Art. 31A) have been invoked to obtain a declaration whether or not a statute is constitutional, when the complainant alleges that he will be directly damaged, in person or in property,
In State's Attorney v. Triplett, 255 Md. 270, 257 A.2d 748 (1969), and in Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968), the summary judgment procedure was used in actions brought under the Uniform Declaratory Judgments Act to pass upon the constitutionality of statutes.
In Triplett, supra, Judge Barnes, for the Court, after pointing out that "... every presumption favors the validity of the statute and it will not be held to be unconstitutional and void unless it plainly contravenes a constitutional provision," stated:
In Hunt v. Montgomery County, supra, a bill for declaratory relief was heard on demurrer, by agreement of the parties; a declaratory decree was entered declaring
Although the appellants alleged in their petition that "since 1935, by its rules and regulations," the Board has allowed the schools to reflect in their clinic charges the cost of administration, including the cost of materials, and alleged in their Motion for Summary Judgment that such charges "were approved by regulation and practice of the Board," no copies of any such purported rules or regulations were filed as exhibits accompanying their petition or Motion. Indeed, we take judicial notice, as we did in Wrenn v. Vincent et Vincent of Langley, Inc., 235 Md. 466, 201 A.2d 768 (1964) (involving an identical contention), that no such rules or regulations have as yet been filed with the Clerk of the Court of Appeals pursuant to the provisions of Art. 41, § 9 and § 246 of the Annotated Code. In Wrenn, supra, we stated:
The appellants' reliance upon the alleged existence of rules and regulations of the Board, to say the least, is misplaced.
It must additionally be pointed out that the parties in their Cross-Motions for Summary Judgment each represented to the court that there was "no genuine dispute as to any material facts in this matter."
The actions of an attorney within the scope of his employment are binding upon his client under the ordinary principles of agency. McGinnis v. Chance, 247 Md. 393, 399-400, 231 A.2d 63, 67 (1967); Bob Holding Corp. v. Normal Corp., 223 Md. 260, 164 A.2d 457 (1960); 7 C.J.S., Attorney and Client, § 79 (1937); and 7 Am.Jur.2d, Attorneys-at-Law, § 100 (1963). This is particularly true concerning the stipulation of counsel in open court. See Posko v. Climatic Control Corp., 198 Md. 578, 84 A.2d 906 (1951); citing Bloom v. Graff, 191 Md. 733, 737, 63 A.2d 313, 315 (1949); 9 Wigmore, Evidence
The affirmative representation by appellants' counsel in the trial court that there was "no dispute as to any material facts" and the concessum thereon is determinative of this contention.
Notwithstanding the lack of evidence of the promulgation of such alleged "rules and regulations" relied on by the appellants, and notwithstanding the concessum that there was "no genuine dispute as to any material facts", our independent appraisal of the record convinces us that the resolution of whatever factual dispute may have been raised by the pleadings was not material to the legal issue, as to whether or not Art. 43, § 537 on its face was a valid exercise of the police power of the State. The pleadings and the Motions presented the lower court with a "concrete and specific issue." It was not error for the trial court, without the taking of testimony concerning the allegations made by the appellants to render summary judgment on the limited issue of the constitutionality of the Section on its face.
(c) THE CONSTITUTIONALITY OF THE STATUTE
The appellants in their attack upon the constitutionality of Art. 43, § 537 (a), contend that it is an invalid exercise of the police power because it has no "relationship with the health, safety or welfare of the people"; that as a "price control" statute it imposes unreasonable and unnecessary restrictions arbitrarily interfering with private business and lawful occupations and that it is discriminatory in that no such equal restrictions are imposed "in the barber school clinics." The statute reads as follows:
The Legislature exercises a large discretion in determining what the public welfare requires, in what may be injurious to the general welfare of the public and also what measures are either necessary or appropriate for the protection and promotion of these interests. A. & H. Transp., Inc. v. Mayor and City Council of Baltimore, 249 Md. 518, 240 A.2d 601 (1968); Maryland Coal and Realty Co. v. Bureau of Mines, 193 Md. 627, 69 A.2d 471 (1949); Davis v. State, 183 Md. 385, 37 A.2d 880 (1944).
The exercise by the Legislature of the "police power", of course, is subject to review by the courts, but the exercise of such power will not be interfered with unless it is shown to be misused or abused, or where it is shown to be exercised arbitrarily, oppressively or unreasonably. Maryland Coal and Realty Co. v. Bureau of Mines, supra; McBriety v. City of Baltimore, 219 Md. 223, 148 A.2d 408 (1959); Davis v. State, supra; Liberto v. Mayor and City Council of Baltimore, 180 Md. 105, 23 A.2d 43 (1941).
In Dobres v. Schwartzman et al., 191 Md. 19, 59 A.2d 684 (1948), in holding that the Baltimore City Zoning ordinance prohibited the operation of a beauty parlor in a residential-use district and in affirming the action which denied the appellant such use, we stated that the provisions of Art. 43, §§ 471-496 (1939 Code)
The Supreme Judicial Court of Maine had before it in Maine Beauty Schools, Inc. v. State Board of Hairdressers, 225 A.2d 424 (Me. 1967), the precise issue here raised — the constitutionality of a 1965 amendment to the Maine statutes which prohibited the making of any charge by schools of hairdressers and beauty culture for the services by student operators and prohibited such schools from making any charges other than the reasonable cost of supplies and materials. The court recognized that "... The health, safety and welfare of the public is concerned from standpoints of sanitation, minimization or spread of communicable diseases and professional and technical competence of those who propose to practice the profession."
The court observed that the Legislature was confronted
In holding that: "Our statute is not per se constitutionally unequal and discriminatory in application, and the establishment and posting of `the reasonable cost of supplies and materials used' to govern the charge to the `model' is valid," the court pointed out in its opinion:
In Toebe Academy of Beauty Culture, Inc. v. Kelly, et al., 239 Wis. 103, 300 N.W. 476 (1941), the Supreme Court of Wisconsin was called upon to rule on the lawfulness and reasonableness of an order promulgated by the State Board of Health which prohibited schools of cosmetology from charging patrons more than the reasonable cost of materials used.
The Wisconsin statute provided: "A school shall provide its students with subjects for practical work. The charge made for materials used shall not exceed the reasonable cost thereof. No school shall advertise for patrons to be used at the clinical work." In implementation of the statute the Board of Health issued an order that: "No school may charge a patron more than the reasonable cost of materials used" and set up a list of services and a determination of "reasonable cost of materials consumed in the rendition of each [such] service." The rule also provided that any school might apply to the Board for an order establishing other maximum amounts of "cost of materials" upon furnishing adequate proof that the cost of the materials used by them did exceed those set by the rule.
That court, after observing that "If a beauty school, so-called, practices cosmetic art it becomes a beauty parlor, the services being rendered by the students rather than by operators and apprentices," and after pointing out that by statute no person shall engage in the practice of cosmetic art unless he or she has been licensed by the Board to do so, stated in its opinion:
In Schwarze v. Clark, et al., 188 Okla. 217, 107 P.2d 1018 (1940), the Supreme Court of Oklahoma held that a rule promulgated by the State Board of Barber Examiners which provided that barbering students shall not be allowed to charge any compensation, directly or indirectly, for services rendered by them as students in any barber school or college was not capricious, arbitrary, unreasonable or oppressive, and did not abridge the constitutional rights of the owners of such barbering schools or colleges. In discussing the reasoning behind the adoption of the rule the court stated:
In State v. Conragan, et al., 54 R.I. 256, 171 A. 326 (1934), the trial court certified to the Supreme Court of Rhode Island the issue of the constitutionality of a 1932 amendment to their statutes which provided: "No barber school shall charge any fee, price or compensation for any work or service performed in said school except the regular charge for tuition." In holding that the statute was not in violation of either the Constitution of Rhode Island nor the Fourteenth Amendment to the United States Constitution, the court noted in its opinion:
In Mansfield Beauty Academy, Inc. v. Board of Registration of Hairdressers, 326 Mass. 624, 96 N.E.2d 145 (1951), the Supreme Judicial Court of Massachusetts had before it a statute which prohibited any beauty school from making any charge — for either services or materials. That court, stating that it could find "no rational connection between the promotion of public health and the interdiction of such a charge", held the statute unreasonable and void insofar as it prohibited any charge
In both Moler v. Whisman, 243 Mo. 571, 147 S.W. 985, 40 L.R.A., N.S. 629 (1912), and State, ex rel Mitchell v. Thompson's School of Beauty Culture, Inc., 226 Ia. 556, 285 N.W. 133 (1939), statutes which prohibited the making of any charge by students or apprentices, respectively in barber colleges and in schools of cosmetology, were held to be unconstitutional in that they were held to violate respectively provisions of the Missouri Constitution (Art. 2, § 4) and of the Iowa Constitution (Art. 1, §§ 1 and 9), and are here inapposite in view of the lack of any similar provisions in our State Constitution.
Similarly, the holdings in Ex Parte Kazas, 22 Cal.App.2d 161, 70 P.2d 962 (1937), Edwards v. State Board of Barber Examiners, 72 Ariz. 108, 231 P.2d 450 (1951) and Duncan v. City of Des Moines, 222 Ia. 218, 268 N.W. 547 (1936), are equally here inapplicable since each declared unconstitutional statutes which undertook to establish minimum prices which licensed barbers could charge for their services.
The nature of the work encompassed within the definition of "beauty school" as set forth in Art. 43, § 529 (a), supra, involving as it does contact with the human face and scalp, the exposure of the public to the use of dyes, chemicals, bleaching and coloring agents, as well
Beauty schools by virtue of their very nature, their curriculum, training and the supervision of their students in clinics, determine the skill and expertise of those who, after licensing and registration, will, in the future, hold themselves available to the public for the performance of these services. It goes without saying that the educational and training procedures for the practice of cosmetology is equally clothed with a public interest.
In enacting the statute here under attack the Legislature, in the interest of the training of potential cosmetologists, has undertaken to restrict the schools of beauty culture to the primary function for which they are licensed by law — a concentration on the training of the students enrolled. By undertaking to limit the charges which the schools can make to the "model" to the cost of materials used, the model is more readily aware not to expect a semi-professional result from a student-trainee. The obligation of attempting to please the "model" is removed and a freer exchange of criticism and instruction is encouraged between the student and the supervisor.
As we noted in Gino's v. Baltimore City, supra, and in Eutaw Enterprises of Baltimore City, supra, it must be assumed that there existed before the General Assembly a state of facts similar to that noted in Maine Beauty Schools, Inc. v. State Board of Hairdressers, supra, as a basis for the enactment of Art. 43, § 537 (a).
The Legislature obviously concluded that the service
In view of the prohibition against the practice of cosmetology without examination, licensing and registration (see Art. 43, §§ 530, 531) and in view of the prohibition (Art. 43, § 538) against the practice of beauty culture in other than a registered beauty shop, the reasoning in Schwarze v. Clark, et al., supra, becomes particularly pertinent in that the beauty schools, save for such a prohibition would be entitled to charge — indirectly at least — for cosmetology services performed by unlicensed students and would circumvent the prohibition against the practice of beauty culture in other than a registered beauty shop. The prohibition in Art. 43, § 537 (a), against making any charge whatsoever for the clinical work performed by students in the beauty schools has a substantial direct relationship with the health, safety and welfare of the public, and thus, on its face, is within the police power of the state.
That the statute may undertake indirectly to control prices and affect competition does not per se render it invidious or unconstitutional; such a form of regulation is unconstitutional "only if arbitrary, discriminatory or demonstrably irrelevant to the policy the Legislature is free to adopt and hence an unnecessary and unwarranted interference with individual liberty." See Nebbia v. New York, 291 U.S. 502, 538-9, 54 S.Ct. 505, 78 L.Ed. 940 (1934), cited with approval in Allied American Mutual Fire Insurance Co. v. Comm'r of Motor Vehicles, supra, where it was recognized that "The [police] power justifies regulations designed to promote the public convenience or the general prosperity, as well as those to promote public safety, health and morals, since it extends
In Nebbia, supra, the U.S. Supreme Court upheld, as within the exercise of the police power of the state, the constitutionality of the New York Milk Act which made it unlawful to sell or to buy milk at a price less than, or more than, that fixed by regulation. After pointing out that "legislation concerning sales of goods and incidentally affecting prices has repeatedly been held valid."
The court stated in its opinion:
See also Williamson, etc. v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (1955).
The holdings in Jay Burns Baking Co. v. Bryan, etc., 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813 (1924), cited by appellants, are not contrary to these recognized principles; nor are the holdings in Williams v. Standard Oil
In Blum v. Engelman, 190 Md. 109, 57 A.2d 421 (1948), we upheld the constitutionality of the "Unfair Sales Act"
We have also upheld the constitutionality of the Maryland
In Davis v. State, 183 Md. 385, 37 A.2d 880 (1944), in upholding the constitutionality of Ch. 600 of the Acts of 1943 enacted for the regulation of advertising by physicians and surgeons, we held that "The Legislature had the right to determine, and did determine, that the public interest would be injuriously affected by unseemly competition of physicians and surgeons for patients without any restraint as to methods, and that regulation of advertising by them is necessary for the public health, morals, or welfare."
Although the effect of the prohibition in Art. 43, § 537 (a), may be to undertake to limit competition between the beauty schools and registered beauty shops, the Legislature was free to adopt such an economic policy so long as it appeared reasonably necessary to protect the public welfare. As applied to the teaching of cosmetic art the statute is not a price-fixing statute; the proprietors of beauty schools have no more right to charge or to receive compensation for the services performed by their students than the unlicensed, unregistered students themselves could charge. The schools are not engaged in the business of supplying services to the public, but are engaged in qualifying students to become practitioners of the art; to permit such schools to make charges for the services supplied by their students would result in the operation of "cut-rate", unregistered beauty shops and would be inconsistent with the primary function of such schools — the education and training of those pursuing this vocation. We cannot say, to the extent it may "control prices" or effect competition, that the statute is unreasonable or that it does not bear a real and
Nor is the statute in its application to schools of beauty culture arbitrary or discriminatory. If all persons who are in like circumstances or affected alike are treated under the laws the same, there is no deprivation of the equal protection of the law. Conversely, a law which operates upon some persons or corporations, and not upon others like situated or circumstanced or in the same class is invalid. See Oursler v. Tawes, 178 Md. 471, 483, 13 A.2d 763, 768 (1940); Leonardo v. Board of County Commissioners, 214 Md. 287, 304, 134 A.2d 284, 292 (1957), cert. denied 355 U.S. 906, 78 S.Ct. 332, 2 L.Ed.2d 260, rehearing denied 355 U.S. 967, 78 S.Ct. 534, 2 L.Ed.2d 543; National Can Corp. v. State Tax Commission, 220 Md. 418, 431, 153 A.2d 287, 295 (1959), appeal dismissed 361 U.S. 534, 80 S.Ct. 586, 4 L.Ed.2d 538.
In support of appellants' contentions that the statute is arbitrary and discriminatory their reliance upon our holdings in Bruce v. Director, Dept. of Chesapeake Bay Affairs, 261 Md. 585, 276 A.2d 200 (1971), is misplaced. In Bruce we held unconstitutional certain sections of Art. 66C of the Maryland Code (1970 Repl. Vol.) which placed residential requirements and territorial restrictions on the licensing of commercial fishermen and watermen engaged in the tidal waters of Maryland. The statutes restricted such pursuits to the county of one's residence. In holding that the statutes in question were invalid in that they represented "an unreasonable exercise of police power" we observed that they created "an unlawful classification of persons" and a discrimination between the residents of the various counties; we nonetheless recognized that "the constitutional need for equal protection does not shackle the Legislature. It has the widest discretion in classifying those who are regulated and taxed. Only if the group is without any reasonable basis,
The appellants' contention further that the statute is discriminatory in that it does not apply to barber schools overlooks the prohibition set forth in Art. 43, § 318B (b), against the receipt of any remuneration by a student performing barbering work at a barber school. Since the statutory prohibition here in question applies equally to every school of beauty culture within the State it is not unconstitutionally arbitrary or discriminatory.
We are not here confronted with the issue of the reasonableness of any formula by which the "cost of materials" might be determined since the Chancellor remanded that issue to the Board for the promulgation of rules and regulations pertaining to the computation of "cost of materials".
(d) ESTOPPEL — LACHES
The appellants, apparently conceding the constitutional validity of the statute, as their last thrust, contend that the Board should be estopped, or barred by laches, from attempting to enforce its provisions "by virtue of prior rules, regulations and policy of the Board."
As heretofore pointed out, we took judicial notice that no such rules or regulations have been filed with the Clerk of the Court of Appeals, pursuant to the provisions of Art. 41, § 9 and § 246 of the Annotated Code.
As was held in Lipsitz v. Parr, 164 Md. 222, 164 A. 743 (1933), laches is an inexcusable delay, without necessary reference to duration, in the assertion of a right, and, unless mounting to the statutory period of limitations, mere delay is not sufficient to constitute laches, if the delay has not worked a disadvantage to another. See Bradford v. Futrell, 225 Md. 512, 525, 171 A.2d 493, 500 (1961). "The doctrine of laches is an application of the general principles of estoppel." Oak Lawn Cemetery v. Baltimore County, 174 Md. 280, 291, 198 A. 600, 605 (1938), citing Pomeroy's Eq. Juris. Vol. 4, § 1440. See also Boehm v. Boehm, 182 Md. 254, 269, 34 A.2d 447, 454 (1943). Prejudice or injury to the party raising "laches" is an essential element. Simpers v. Clark, 239 Md. 395, 403, 211 A.2d 753, 757 (1965). So long as the position of the parties is not changed and there is no prejudice from the delay laches are inapplicable. Oak Lawn Cemetery v. Baltimore County, supra.
Although it is recognized that estoppel may operate against the State by acts done in its proprietary capacity, the doctrine of estoppel will not be applied against the State in the performance of its governmental, public or sovereign capacity or in the enforcement of police measures.
In Comptroller v. Atlas Industries, 234 Md. 77, 198 A.2d 86 (1964), the appellant sought to invoke the doctrine of estoppel based upon the contention that the "delay" from 1954 until 1961 in demanding the payment of sales taxes was because the "previous administration `did not care to force the issue' — but the present administration did." Judge Prescott (later Chief Judge), concerning this contention, stated:
In National Labor Relations Board v. Baltimore Transit Co., 140 Fed.2d 51, 55 (1944) (4th Cir.), cert. denied 64 S.Ct. 848, it was similarly held that the principles of equitable estoppel cannot be applied "to deprive the public of the protection of a statute because of mistaken
It is equally well settled that laches on the part of the state in bringing suit is not a defense in a case which is founded on the exercise of a sovereign right or the exercise of a governmental function. As it is sometimes expressed, the mere acquiescence, laches, lapse of time or non action on the part of the public agents or officers will not be imputed to the government to work an estoppel. 27 Am.Jur.2d, Equity, § 156, 30A C.J.S., Equity, § 114, 31 C.J.S., Estoppel, § 138. See also Thompson v. United States, 312 F.2d 516 (Kan.) (10th Cir.1962), cert. denied 373 U.S. 912, 83 S.Ct. 1303, 10 L.Ed.2d 414.
This contention by appellants is similar to that raised in Atkinson v. Sapperstein, 191 Md. 301, 60 A.2d 737 (1948), wherein the appellee sought to have declared invalid the provisions of Art. 56, §§ 24 and 25 of the Code of 1939, which required a license to be obtained by ice cream vendors. One of his challenges to the constitutionality of the statute alleged that the statutes had been "disregarded throughout the State by practically all the law enforcement agencies charged with their enforcement, not out of an intent to flout the pronouncements of the Legislature, but because of their recognition that the enactments are unreasonable and invalid." Judge Collins, writing for the Court and in rejecting this contention, stated:
See also Brown v. State, 177 Md. 321, 9 A.2d 209 (1939), sustaining the action of the lower court in excluding evidence of previous failure on the part of the police in Baltimore to enforce the "Hawkers and Peddlers" license laws.
There is no evidence here of any "long standing and consistent administrative interpretation acquiesced in by the Legislature", but even if there were, since the language of the statute is clear and unambiguous any such administrative interpretation contrary to that clear and
Since the prohibition here under attack has been part of the statutory law of the State since 1947 and since the knowledge of that law is imputed to the appellants — and to all others
The statute, with its express prohibition, is self-enforcing. The only "policy" attributable to the Board on the record before us is one of inaction. Any such inaction or acquiescence by predecessor Boards in failing to call upon the appellants for enforcement of the statute cannot abrogate a statute which has been enacted in furtherance of the police power of the State. To hold otherwise would be to permit administrative officers of the State by inactivity or apathy to effectively bring about a repeal of a validly enacted statute and a resultant veto of a legislative enactment.
Since no formula has been adopted by the Board by rule or regulation as to what may be encompassed within the definition of the "cost of materials", the Chancellor properly retained jurisdiction over that subject-matter and remanded that issue to the expertise of the Board for the promulgation of such a rule or regulation.
The interlocutory injunction issued on April 10, 1963, served its office and purpose until the final decree was
Decree affirmed, the costs to be paid by appellants.
The court is persuaded that the word "supplie[s]" is typographically incorrect and in view of the language and expressed intent of the section should be read as "supplied."
As pointed out, supra, the Chancellor in these proceedings referred to the Board the issue of the promulgation of rules and regulations by which the "cost of materials" may be determined.