Baughman v. Milstone

Adkins, J., delivered tbe opinion of the Court. This appeal is from an order of Circuit Court No. 2 of Baltimore City, overruling a demurrer to- the bill of complaint of appellee and making permanent the preliminary injunction previously granted, appellant having declined to answer. The averments of the bill of complaint were: “First. That he is engaged in the business of selling the use of motor vehicles to reputable persons duly licensed to drive the same, and that on or about the 17th day of January, 1923, for the purpose of engaging in such business in the City of Baltimore, State of Maryland, he leased the premises known as Nos. 1723-1725 North Charles Street, in the City of Baltimore, State of Maryland, for a period of five years, at and for the rental of fifty-four hundred and twenty dollars ($5420.00) per year, all of which will more fully appear by reference to the lease of said premises from ¥m.

J. Myers, Inc., et al., to your orator attached hereto marked Complainant’s Exhibit ‘A’ and prayed to be taken as part hereof. “Second. That in preparation for the conduct of his business in the City of Baltimore, your orator assembled at the aforesaid premises, and now has there eleven pneumatic tired motor vehicles of the character and kind known as touring cars and sedans, and has ordered and made a cash deposit for fifteen additional similar motor vehicles to be used here for the same purpose, deliveries of which are expected within a short time. That all of said eleven motor vehicles on hand at your orator’s place of business have been properly ²²⁵ registered at the office of the Commissioner of Motor Vehicles, and license tags, registration cards and titles have been issued for same in your orator’s trade name, ‘Drive It Yourself Company,’ as owner, all of which is well known to the said E. Austin Baughman, who is the Commissioner of Motor Vehicles of the State of Maryland, his deputies, assistants, agents and employes. That in anticipation of carrying on his said business your orator engaged, and has in his employ at high wages, two additional employes expert in this business. “Third.

That your orator opened his aforesaid place of business and began selling the use of his said motor vehicles on January 22, 1923. That every person desiring to use one of your orator’s motor vehicles is required to fill out and sign in his own handwriting a card giving your orator information, among other things, as to his full name, home address, the number of his operator’s license, his place of employment, references, and other matters essential to his identification as a proper person to be allowed the use of one of your orator’s motor vehicles. In addition, every such applicant is required to exhibit to your orator, or his representatives, the license carried by such person entitling him to operate a motor vehicle within the State of Maryland. A sample of the identification card required to be filled out as described above is filed herewith marked Complainant’s Exhibit ‘B’ and prayed to be taken as part hereof. “Fourth.

That every person desiring to use one of your orator’s motor vehicles is required to enter into a written agreement under which a charge is made by your orator of twelve cents (12c) per mile in the case of certain kinds of motor vehicles and eighteen cents (18c.) per mile in the case of other kinds of motor vehicles for each mile that said motor vehicles, or any of them, are. used. A deposit of fifteen dollars ($15) or twenty-five dollars ($25), depending on the make of ²²⁶ the motor vehicle to he used, is required from each person entering into a contract for the use of same as a guarantee against loss by damage to the motor vehicle while in possession of the person who contracts for the use of the same. A sample of the form of agreement referred to above is filed herewith marked Complainant’s Exhibit ‘C’ and prayed to be taken as a part hereof. “Eifth. That your orator had been in the business described herein for a period of two days when he was notified by E. Austin Baughman, Commissioner of Motor Vehicles, the defendant, and by deputies representing said Commissioner of Motor Vehicles, that a business of the nature and character conducted by your orator was not, in their opinion, permitted under the Motor Vehicle Laws of the State of Maryland, and that the defendant, under the duty imposed upon him by Section 136 of Article 56 of the Annotated Code of Maryland, title ‘Licenses,’ sub-title ‘Motor Vehicles,’ intended to exercise every effort to prevent the carrying on of such business, and to enforce what the defendant conceived to be the Motor Vehicle Law of the State, and to that end advised your orator that a continuance of the aforesaid business would result in your orator’s arrest and in the arrest of each and every person found by the defendant, his deputies, assistants, agents and employes, engaged in operating one of your orator’s cars under agreements such as have been above referred to. “Sixth.

That your orator has been engaged in the same business as described herein for a period of three years in the City of Washington, District of Columbia, and that other individuals, firms and corporations are engaged in the same or similar businesses in almost all of the large cities in the United States. Your orator has complied with all of the provisions of the law relating to the proper registration and titling of motor vehicles, and has offered to comply with any additional rules or regulations or classifications to which the de ²²⁷ fondant may believe he can be properly subjected, but the defendant has declined to allow your orator to continue to conduct his business, except under provisions of law which are manifestly not applicable to your orator’s business, and with which it is impossible to comply. The defendant has advised your orator that under the provisions of Section 134 of Article 56 of the Annotated Code of Maryland, title 'Licenses,’ subtitle 'Motor Vehicles,’ every person who pays your orator for the use of a motor vehicle must be regarded for the purpose of the Motor Vehicle Laws as the owner of such motor vehicle; and that such person, therefore, is required to obtain a new set of registration tags or markers, a new registration certificate, and also to have the title of such motor vehicle transferred to the name of such person under the provisions of Section 157 of Article 56 of the Annotated Code of Maryland, title 'Licenses,’ sub-title 'Motor Vehicle.’ ” “In practically every case in which a motor vehicle owned by your orator is used in accordance with the agreement above referred to the use extends only for a period of four or five hours and, at the most, one day. In rare instances motor vehicles are allowed to he used for two or three days and never for a period as long as a week.

The attempt made by the defendant to require each person desiring to use a motor vehicle for a period of a few hours to surrender the license tags or markers now attached to yonr orator’s motor vehicles and to purchase new tags, thus paying double for a portion of a quarterly period of use under the Motor Vehicle Laws; and to require the transfer to such person of a certificate of title, with the payment of the consequent fee, is necessarily prohibitive of the business in which your orator is engaged and is not justified by any provision of the Motor Vehicle Laws of the State. That your orator is advised and, therefore, alleges, that he is entitled by law to conduct his business in the manner in which he has heretofore conducted ²²⁸ the same as outlined above, and that the requirements of the defendant are unlawful and unwarranted. “Seventh. That on account of the action of the defendant here, his deputies, assistants, agents and employes, and their threats to arrest your orator, and to arrest each and every person who contracts for the use of the motor vehicles owned by your orator, it has been impossible for your orator to continue to do business, as no one can be expected to contract with him under threat of arrest; and it has, therefore, become necessary for your orator to close his place of business pending the determination of your orator’s right to do business as aforesaid. That your orator’s property in the aforesaid lease and the aforesaid motor vehicles is lying idle and unremunerative and his rights therein are being seriously and irreparably damaged.

That if the defendant is not restrained from ordering the arrest of your orator, and of all persons who may use his motor vehicles under the agreement above referred to, your orator’s business will be destroyed and rendered worthless and a multiplicity of criminal proceedings, not only against your orator, but against a number of other persons over whom he has no control, will result. “Eighth. That your orator has no adequate remedy at law against the threatened action of the defendant, his deputies, assistants, agents and employes, since your orator’s arrest, and the arrest of each and every one of his customers, will impair his standing in the community and ruin his opportunities for conducting his business in the City of Baltimore, and will compel each of the parties arrested to defend themselves in each of the criminal proceedings which the defendant has threatened to institute. That your orator is being deprived of the use of his property and the opportunity of conducting a lawful business therewith, and of making a livelihood therefrom, and that he is entitled to the interposition of a court of equity by the writ of injunction to prevent such interference.” ²²⁹ The prayer of the hill was that complainant’s right to conduct his business as aforesaid he established and that the defendant and al'1 persons acting under him be restrained by injunction from interfering with the complainant, his representatives or employees in the1 conduct of his. business, so long as he shall conduct the same iu the name set out in the bill of complaint. Perhaps the most satisfactory as well as the most concise way to state the position of appellant is to set out the demurrer in full.

It is as follows: “The defendant, E. Austin