dissenting:
I must dissent from the views expressed by my learned brethren, principally because, as I see it, Ordinance 0-4-71 *250(Charter and Code of City of Bowie, § 16-17.1) violates the rights guaranteed the appellants by the due process clause of the Fourteenth Amendment to the United States Constitution and Article 23 of the Maryland Declaration of Rights.1
In reviewing the ordinance we must, upon the totality of the factual evidence presented, determine whether the means selected by the ordinance — by requiring a deposit of at least five cents on each beverage container — bear a real and substantial relationship to the object sought to be attained by the ordinance — the control of litter within the City of Bowie, or whether the ordinance itself is unreasonable, arbitrary or unreasonably oppressive.
In Maryland, Bd. of Pharmacy v. Sav-A-Lot, 270 Md. 103, 311 A. 2d 242 (1973), following a trial on the merits, this Court held, notwithstanding the presumption of its constitutionality, that Maryland Code (1957,1971 Repl. Vol.) Art. 43, § 266A (c) (4) (iv), prohibiting advertising of prescription drug prices, or terms connoting discounts on such drugs, was, upon the evidence presented, unconstitutional as a violation of the due process clause and of Article 23 of the Maryland Declaration of Rights in that the statute, purporting to have been enacted to protect the public health and welfare, bore no. real or substantial relationship in attaining that result.
Judge Levine, who delivered the opinion for the Court, after noting “that whatever may be the current direction taken by the Supreme Court in the area of economic regulation, as distinguished from the protection of fundamental rights,” and that Maryland has adhered to the “traditional test” formulated by the Supreme Court and enunciated in Lawton v. Steele, 152 U. S. 133, 137 (1894), and followed in Goldblatt v. Hempstead, 369 U. S. 590, 594-95 (1962), stated:
*251“[T]he arguments advanced by the Board demonstrate no ‘real and substantial relation to the object sought to be attained,’ by the ‘means selected.’ Quite to the contrary, the evidence indicates that continued existence of the statute is inversely related to the public health and welfare. Consequently, we do not hesitate to label it ‘unreasonable, arbitrary and capricious,’ and therefore an unconstitutional exercise of the police power. Although the objectives attributed to the statute are, indeed, commendable ones, there is no ‘substantial relation’ between them and the statute. The result is, and we so hold, that subsection (iv) of § 266A (c) (4) violates the Due Process Clause of the Fourteenth Amendment and Art. 23 of the Maryland Declaration of Rights.” 270 Md. at 121, 311 A. 2d at 252.
Similarly, in Maryland State Bd. of Barber Examiners v. Kuhn, 270 Md. 496, 312 A. 2d 216 (1973), again following an evidentiary hearing, this Court declared Code (1957, 1971 Repl. Vol. [1973 Cum. Supp.]) Art. 43, § 529 (a), which restricted licensed cosmetologists to cutting only the hair of females — purportedly enacted as a lawful exercise of the “police power” — was violative of both the equal protection and due process clauses of the Fourteenth Amendment since, again, it was found, upon the evidence presented, to bear no real and substantial relationship to the public health, morals, safety and welfare of the citizenry.
Judge Levine, who again delivered the opinion for the Court, in pointing out the test to be applied, stated:
“In cases brought under the Equal Protection Clause of the Fourteenth Amendment, but not involving so-called ‘suspect classifications’ or ‘fundamental personal rights,’ the Supreme Court and this Court have applied the more traditional ‘rational relationship’ or ‘fair and substantial relation’ tests, which require, at a minimum, that a statutory classification bear some ‘rational *252relationship’ to a legitimate state purpose, Weber v. Aetna Casualty & Surety Co., supra; Morey v. Doud, 354 U. S. 457, 463-64, 77 S. Ct. 1344, 1 L.Ed.2d 1485 (1957); Dasch v. Jackson, 170 Md. 251, 265, 183 A. 534 (1936); see Hearst Corp. v. St. Dep’t. of A. & T., 269 Md. 625, 644, 308 A. 2d 679 (1973) (dictum); cf. City of Balto. v. Charles Ctr. Parking, 259 Md. 595, 598, 271 A. 2d 144 (1970); or that the legislative classification rest upon some ground of difference having a fair and substantial relation to the object of the legislation, Reed v. Reed, 404 U. S. 71, 92 S. Ct. 251, 30 L.Ed.2d 225 (1971); Schilb v. Kuebel, supra; McDonald v. Board of Election, 394 U. S. 802, 89 S. Ct. 1404, 22 L.Ed.2d 739 (1969); McGowan v. Maryland, 366 U. S. 420, 81 S. Ct. 1101, 6 L.Ed.2d 393 (1961); Adm’r, Motor Veh. Adm. v. Vogt, 267 Md. 660, 677, 299 A. 2d 1 (1973).” 270 Md. at 507, 312 A. 2d at 222.
In concluding that the section of the statute could not withstand constitutional scrutiny and hence violated the due process clause of the Fourteenth Amendment and Article 23 of the Maryland Declaration of Rights, he stated further:
“[I]f a statute purporting to have been enacted to protect public health, morals, safety and welfare has no real or substantial relation to those objects or is a palpable invasion of rights secured by fundamental law, it is our duty to so adjudge and thereby give effect to the Constitution, Mugler v. Kansas, 123 U. S. 623, 661, 8 S. Ct. 273, 31 L. Ed. 205 (1887); Maryland Board of Pharmacy v. Sav-A-Lot, Inc. et al, supra; Hiller v. State, 124 Md. 385, 391, 92 A. 842 (1914); State v. Hyman, 98 Md. 596, 615, 57 A. 6 (1904).” 270 Md. at 511, 312 A. 2d at 225.
In Salisbury Beauty Schools v. State Board, 268 Md. 32, 300 A. 2d 367 (1973), in sustaining a summary judgment under the Uniform Declaratory Judgments Act (Code (1957, *2531971 Repl. Vol.) Art. 31A), we held valid on its face, as within the lawful exercise of the police power, the provisions of Code (1957, 1971 Repl. Vol.) Art. 43, § 537 (a), which prohibited any school of beauty culture from charging any money whatsoever for [beauty] treatment by its students. Although we did therein preface our holdings by stating that “such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported,” citing Davis v. State, 183 Md. 385, 37 A. 2d 880 (1944) and State v. J. M. Seney Co., 134 Md. 437, 107 A. 189 (1919), in both of the cited cases, as well as in Salisbury Beauty Schools, the constitutionality, vel non, of the statute was before this Court on other than facts elicited during an evidentiary hearing. Notwithstanding such a premise, we there held, as pointed out in Sav-A-Lot, supra, that the “means selected must have a real and substantial relation to the object sought to be attained.” See also Blum v. Engelman, 190 Md. 109, 115, 57 A. 2d 421, 423 (1948).
Although Article 23 of the Maryland Declaration of Rights has long “been equated” with the “due process” clause of the Fourteenth Amendment, by judicial construction and application the two provisions are not synonymous. Whereas the decisions of the Supreme Court appear to uphold the validity of a regulation as within the exercise of the “police power” if its enactment is based on any reasonable consideration affecting the public welfare, see Nebbia v. New York, 291 U. S. 502, 538-39 (1934); Williamson v. Lee Optical Co., 348 U. S. 483, 488 (1955), as pointed out in Sav-A-Lot, supra, in Kuhn, supra, and in Salisbury Beauty Schools, supra, our decisions have adhered to the test requiring that a “real and substantial relationship” to the object sought to be attained by the regulation be shown. The federal-state dichotomy was clearly pointed out in Sav-A-Lot, supra.
In premising their conclusion that the ordinance does not violate Article 23 of the Maryland Declaration of Rights upon the tenet that a statute “will not be held void if there are any considerations relating to the public welfare by which it can be supported,” the majority, in conspicuously *254omitting from the criterion the requirement that “the means selected must have a real and substantial relation to the object sought to be attained,” have departed from the “traditional test” which our cases have adopted. The test applied by the majority — based upon an existence of “any considerations” — is contrary to the holdings of the United States Supreme Court in Lawton v. Steele, supra, promulgating the test which our cases have consistently embraced and where it was stated:
“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 powers is not final or conclusive, but is subject to the supervision of the courts. . . .” (Emphasis supplied.) 152 U. S. at 137.
See also Goldblatt v. Hempstead, supra, restating the standard of “reasonableness” but finding upon the record that the appellants had not sustained the burden of proof in showing that the ordinance enacted was so onerous or unreasonable as to violate their “due process” rights, and where the Court stated:
“The ordinance in question was passed as a safety measure, and the town is attempting to uphold it on that basis. To evaluate its reasonableness we therefore need to know such things as the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss *255which appellants will suffer from the imposition of the ordinance.
A careful examination of the record reveals a dearth of relevant evidence on these points... .” (Emphasis supplied.) 369 U. S. at 595.
As the principal evidence offered on behalf of the City of Bowie of “any consideration relating to the public welfare,” was the testimony of a member of two community improvement associations (who later became a member of the very Council which had enacted the ordinance), who, from the same report which had been submitted to the Council, described two projects for the pick-up of litter, conducted by volunteers, in April and in October, 1970, along two of the community’s major traffic arteries, Maryland Routes 197 and 450, which are heavily traveled and used as ingress and egress to the Bowie Race Course when it is conducting its meets. Following the spring meet approximately 6,000 cans and 600 bottles were collected in the April pick-up; 4,000 cans and 255 bottles were collected in October. No distinction was made in tabulating the results of the pick-up between those bottles or cans collected and those to be regulated by the ordinance, although the witness indicated that many of the cans and bottles were of the same type as those scheduled for regulation. In the October pick-up 12% of the bottles were “returnable” soft drink containers; the remainder were “nonreturnable.” This testimony did not establish that these two projects had been restricted to the municipal limits.
The only other evidence supportive of “any consideration” was the testimony of a resident of Oregon, where a similar state-wide statute is in effect, who opined that he “believed” that litter had been reduced in that state as a result of its mandatory deposit statute.
In contrast to this meager evidence as a predicate for justifying the exercise of the “police power” the evidence was massive on behalf of the 16 retailers located within the limits of Bowie that the ordinance would have adverse and dire economic consequences and that the effectiveness of the *256ordinance would not bring about any meaningful reduction in litter — and thus not achieve the purpose for which it had been enacted.
The appellants’ evidence established that the retail marketing area patronized by the residents of Bowie, a city of approximately 35,000 residents, was not limited by the artificiality of the municipal limits; that there were approximately 18 direct competitors outside those limits, some within sight of its border — all within one and one-half miles of the stores within the municipality; that Bowie residents have easy access to the stores unaffected by the ordinance; to those who already purchase from retailers outside the city will be added local patrons when the retailers within Bowie must remove preferred products from their shelves or,, alternatively, be required to increase the retail selling price.
Those appellants operating small liquor or convenience stores have limited space for inventory and storage and rely upon large volume and high turnover sales; the storage and inventory systems currently used upon their premises for nonreturnable bottles and cans would prove physically inadequate for the storage and inventory of beer and soft drinks in returnable containers. Evidence established that imported and premium beers were unavailable in returnable containers, and soft drinks so available were extremely limited. It was pointed out, upon market analyses, that historically consumer preferences by choice have foreclosed the sale of returnable containers and that only a limited number of products are so sold. On three occasions one of the liquor stores undertook to advertise and to sell beverages in returnable containers within two percent of its cost, but failed to gain either additional customers or any new business for such products.
Almost without exception beer products sold by the retailers within the city are bottled by brewers located outside the State of Maryland; all premium beers, the majority of the beer market, were bottled out of the state and are supplied the retailers within the city by regional *257distributors. A Prince George’s County distributor for Budweiser products testified that only 5.6% of that company’s malt products are sold in returnable containers and this percentage had been steadily eroded over the years due to customer preference for the convenience of nonreturnable containers, which preference has become increasingly evident as the beer market has shifted to off-premises and at-home consumption.
The Bowie retailers selling soft drinks receive their products from bottlers located both within and without the state. Purchasing patterns had similarly forced bottlers to reduce their use of returnable containers; each of the bottlers who testified gave firm statistical evidence concerning the impact of increasing consumer reluctance to purchase returnable containers and showed a progressive “drop-off” statistically in the number of times a returnable bottle is refilled and redistributed. The bottlers now packaging products in nonreturnable containers demonstrated the competitive disadvantage to them as a result of the ordinance and testified that on an economic basis the packaging of their products in returnable containers could not be justified to meet a market solely for the City of Bowie. Evidence was additionally supplied through such bottlers that the restriction in the city to returnable containers would require the employment of new vehicles and additional personnel whose sole responsibility would be the servicing of Bowie retailers with such returnable containers.
Vivid testimony was given by the retailers themselves concerning the economic impracticability of using containers requiring a deposit; that unless the containers sold by them were marked or identified by some certain indicia as having been sold by a particular retailer, he would become subject to “taking in” and paying five cents for returned containers which he had not in fact sold — and which might have been collected from anywhere outside the limits of Bowie; there was evidence of additional expenses imposed upon the retailers for added labor in identifying containers sold by them, in processing the return of “empties” (bottles) and *258storage, the employment of additional dumpsters in which to collect the increased used cans and the cost of additional trash pick-up service. The “passing on” of these overhead costs to the retail customer would increase the competitive disadvantage of Bowie retailers to those outside its limits. It was shown that if the retailer sought to protect himself by returning the bottles to the bottler for reimbursement of the deposit or for the disposal of such containers an increase of twenty-four to thirty cents per case would be necessary in the sale of beer and price-conscious customers would patently prefer to purchase their beverage outside the municipal limits in nonreturnable containers rather than be required to pay the increased retail price on the returnable containers — plus the statutorily mandated deposit.
The manager of the Bowie Inn, recognizing the easy access of customers to stores without the city and the purchasing patterns followed by them, was of the opinion that he would be “put out of business.”
A marketing expert, testifying on behalf of the appellants, was of the opinion, based upon market data, that approximately two-thirds of the present sales of beer were made in cans, that beginning in the late 1950s, from “marketing experience,” consumers had demonstrated an overwhelming preference for non-deposit containers and recognizing the competitive shopping area, separated only by the geographical borders of the municipality, estimated that the overall decline in the sales of beer, within Bowie, might exceed 50%.
A number of witnesses from the State of Vermont, where a state-wide statute prohibits the “sale of beer or ale in nonreturnable glass containers,” and whose premises were located near the border of Vermont with the neighboring states of New Hampshire and New York, gave graphic evidence concerning their loss of business — in some instances as high as 75%, during the first two months of 1974, by comparison with those same months in 1973, following the enactment of the Vermont state-wide statute.
The only expert witness on “litter control,” testifying on *259behalf of the appellants, conducted an item by item survey in representative areas of the municipality, including shopping centers, highways and residential areas and found, by actual count, that discarded beverage containers represented only 16% of the total litter found in the City of Bowie. Stating that litter was not caused only by Bowie residents, but by nonresidents who purchased beverages elsewhere — as well as those going to and departing from the Bowie Race Course — he observed that the enactment of the ordinance would have little if any effect on that “container litter” and that 84% of what he found (non-container litter) would still remain in the city. He opined that consumers would continue to purchase beverages outside the city, at stores on its periphery, and would consume and continue to discard those items within the city. From his experience he found that while a consumer may return a bottle where there is an immediate opportunity to do so, when such opportunity is not presented many consumers will not trouble themselves to retain a used container and further burden themselves by transporting it to collect the deposit.
In describing alternate methods by which the City of Bowie might substantially reduce its litter the witness proposed the proper placement of litter receptacles in areas peculiarly subjected to litter, such as shopping centers and parking areas, the enforcement of state laws against the discarding of litter from motor vehicles,2 a realistic *260enforcement of the city’s otherwise current anti-litter ordinance, the enactment of a “covered truck” ordinance, a mandate for proper refuse storage at loading and unloading platforms and the initiation of regular civic “clean-up” campaigns.
Upon such a record of evidence we are not asked to overrule a determination of fact based upon the credibility of the witnesses, the weight to be given their testimony, or their demeanor since the trial judge did find as facts that the ordinance “will have the effect of causing a loss of business to city retailers,” that “the customers of the city retailers will go elsewhere to purchase their beverages in order to avoid the five-cent deposit,” that “in order to comply with the ordinance they [the retailers] will have to bear the expense of handling the returned containers, the expense of storing them and the expense of disposing of them” and that this “will increase the cost of doing business by the retailers.” He also found as a fact that “customers will avoid local retailers charging a five-cent deposit” and that “some of the customers in Bowie will favor non-Bowie retailers which are not burdened by the ordinance.” Although the trial court concluded that the extent of the economic loss to be sustained by the retailers was “quite speculative” because of a lack of actual experience, he found that the burden imposed by the ordinance — notwithstanding the appellants’ evidence — was not “so substantial that the court could conclude that it was unduly oppressive or unreasonably restrictive.”
This conclusion appears to be “almost demonstrably wrong from the record,” as we noted in Grant v. City of Baltimore, 212 Md. 301, 316, 129 A. 2d 363, 370 (1957), cited in Eutaw Enterprises v. Baltimore City, 241 Md. 686, 694, 217 A. 2d 348, 353 (1966).
The trial court in sustaining the validity of the ordinance — as has the majority here — predicated its conclusion on the premise that “such a statute will not be held void if there are any considerations relating to the public welfare by which it can be supported.” Although it found, as does the majority, that the effect of the ordinance in bringing about *261the results to be attained were indeed “speculative,” it concluded that “this fell within the province of the effectiveness or the desirability of the legislation, not its logical relation to the problem.” Such criterion, I feel, is erroneous.
Although the majority finds that “there is a clear relation between the mandatory deposit requirement and the object of reducing litter in Bowie,” it fails to make a finding, under the test which this Court had adopted, that the means employed by the ordinance “bears a real and substantial relation to the ends” sought to be attained. Nor can I agree — in view of the overwhelming evidence by the appellants, and the findings of fact by the trial judge — that the constitutionality of the ordinance should await an “extensive trial” and “opportunity to discover whether the ordinance will be good, bad or indifferent in its results.”
I do not find the holdings in American Can Co. v. Oregon Liquor Control Comm’n, 15 Ore. App. 618, 517 P. 2d 691 (1973), review denied, 15 Ore. App. 618, 517 P. 2d 691 (1973), or Anchor Hocking Glass Corp. v. Barber, 118 Vt. 206, 105 A. 2d 271 (1954), here controlling. In American Can Company the Court of Appeals of Oregon upheld a statute requiring all retailers and distributors (including manufacturers) to return a deposit on any container sold by him. The statute further outlawed the sale of “pull top” cans. The statute there in question had state-wide application, applied to all types of beer and carbonated beverage containers and required distributors to reimburse retailers for the return of any container used in the sale of their beverage. The Oregon court held that their state constitutional provision — unlike Article 23 of the Maryland Declaration of Rights — could not be considered the equivalent of the “due process” clause of the Fourteenth Amendment and was designed solely to provide compensation by way of money damages where the government took property for governmental use. That court applied the more liberal test applied by the Supreme Court and not the “relationship test” embedded in our decisions.
The Supreme Court of Vermont, in Anchor Hocking Glass Corp., in upholding the constitutionality of a state-wide *262statute prohibiting the “sale of beer or ale in nonreturnable glass containers” did so, not upon evidence such as that here presented by the appellants, but solely upon the pleadings in the case and, avoiding the “due process” issue, predicated their findings upon the Twenty-First Amendment to the United States Constitution and the “equal protection” clause of the Fourteenth Amendment.
Of much more persuasion — upon facts virtually identical to those submitted here — are the holdings in Kokales v. City of Ann Arbor [No. 7758, Circuit Court for Washtenaw County, decided April 10, 1974],3 where the City of Ann Arbor enacted a similar mandatory deposit ordinance at the retail level and attempted to support its constitutionality by claiming that it would bring about a reduction of litter.
The Michigan Court, upon strikingly similar evidence, applied the test which our Court has adopted and noted that “even if the stated objectives of an ordinance are proper and constitutional, an ordinance may be declared invalid if it does not reasonably accomplish its objectives.” That court, upon its examination of the evidence submitted, finding that there was “no basis for concluding that the refund deposits would have any effect upon the litter problem in Ann Arbor,” and that the ordinance “does not bear a reasonable relation between the remedy adopted and the public purpose,” struck the ordinance down. In doing so the court found that “[I]f the ordinance were enforced the costs to the plaintiffs would be constitutionally prohibitive as compared to the miniscule benefits to the City of Ann Arbor” and that to require a deposit on a container that could not be refilled and reused was clearly a deprivation of property and did nothing to relieve the litter problem. That court was of the view that if a similar statute were passed on a state-wide basis in Michigan it might withstand the test of constitutionality, but as an ordinance deprived the plaintiffs of “due process of law.”
*263Although the efforts of the City of Bowie to alleviate its litter problem are indeed most laudable, it is my view that unlike the result reached in Goldblatt v. Hempstead, supra, the appellants here have sustained the burden of proof in showing that the means employed by the use of the ordinance do not bear a real and substantial relation to the end the City sought to attain, and under the holdings in Lawton v. Steele, supra, as applied in this state, the ordinance is in violation of the “due process” rights guaranteed the appellants under Article 23 of the Maryland Declaration of Rights — and to the extent that it is “equivalent” — with the rights guaranteed them under the Fourteenth Amendment.
. The “law of the land” as used in Article 23 of the Maryland Declaration of Rights has been held to be synonymous with “due process of law” as used in the United States Constitution. See County Comm’rs v. English, 182 Md. 514, 35 A. 2d 135 (1943).
. Maryland Code (1957, 1971 Repl. Vol. [1973 Cum. Supp.]) Art. 27, § 468, known as the “Litter Control Law,” makes it a misdemeanor, punishable by fine or imprisonment or both, “to dump, deposit, throw or leave” any litter on any public or private property of the state or any waters of the state and includes within its definition of “litter” “discarded materials of every kind and description.” Code (1957, 1970 Repl. Vol.) Art. 66V2, § 11-1111, makes it a misdemeanor to “throw, dump or deposit any trash, junk or other refuse upon any highway.”
Section 64-3 of the Prince George’s County Code of Public Local Laws (Vol. II, Codes of Prince George’s County, Maryland (1968)) makes it unlawful “to throw, dump or deposit any trash, junk or other refuse upon the land or property of another” or upon any public highway of Prince George’s County. This ordinance is punishable by a fine of up to $1,000 or imprisonment up to 90 days, or both. The City of Bowie itself, in § 15-6 of Code of the City of Bowie, Maryland (1969), makes it unlawful for any person “to throw, dump or deposit any trash, junk or other refuse” upon the land or property of another or upon any public street of the city.
. Reproduced in the appellants’ record extract and from which no appeal was entered according to the advice received by us from the Clerk of that Court.