Jones v. State

⁴⁸⁵ Collins, J., delivered the opinion of the Court. This is an appeal from the conviction of appellant for violation of a Baltimore City ordinance, by two trial judges sitting without a jury. By Chapter 28, Laws of Maryland, Extraordinary Session, 1948, the Mayor and City Council of Baltimore, (the City), by an enabling act was authorized by the Legislature to issue certificates of indebtedness, the proceeds of which were to be used for the purposes of providing places for storing, parking and servicing self-propelled vehicles, and to create a commission with full power to administer and supervise these expenditures. This commission was known as the Off-Street Parking Commission, (the Commission).

Ordinances were adopted by the City to carry out this Enabling Act. In 1948, C. Edward Jones, appellant, was appointed a member of this Commission. He was convicted by the trial Judges on the second count of an indictment charging him with violation of Ordinance No. 94 as codified in Article 1, Section 9, of the Baltimore City Code, 1950 Edition. The essential parts of this Ordinance follow: “It shall not be lawful for any officer of this corporation, * * * to be engaged or concerned, directly or indirectly, in any contract for work done or to be done on account of the city, or in which the city is or may be in any way concerned * * *.” The appellant contends that Ordinance No. 94 is unconstitutional because its title is defective.

It is admitted by the State, appellee, that the title of this ordinance, approved May 20, 1890, was defective when originally passed. However, the State contends that this defect was corrected by the subsequent codification thereof and the adoption of the Code of 1892. With this contention we agree. This Ordinance was printed in the Code of 1892 as Section 48 of Article 1.

That code was duly adopted and legalized by Ordinance No. 216, dated October 14, 1898, which was titled: “An Ordinance to adopt and legalize the new City Code prepared by John Prentiss Poe.” This ⁴⁸⁶ Ordinance reads as follows: “ Sect. 1. Be it enacted and ordained by the Mayor and City Council of Baltimore, That the new City Code, prepared by John Prentiss Poe, containing the Public Local Laws of the State of Maryland relating to the City of Baltimore, and the General Ordinances of the Mayor and City Council of Baltimore in force on the first day of October 1893, be, and the same is hereby approved and adopted.” This Ordinance No. 94 óf May 20, 1890, has been included in all subsequent codes of Baltimore City as the law of the City. In State v. Balto. & Ohio R. Co., 171 Md. 584 , 190 A. 231 , the title of Chapter 96 of an act passed in 1910 was defective. By Chapter 790 of the Acts of 1912 the codification of the local laws for Montgomery County was submitted and adopted under the title of “An Act to repeal Article 16 of the Code of Public Local Laws of Maryland, title “Montgomery County’, and the several acts and parts of acts amendatory thereof, or inconsistent therewith, and to reenact said Article 16 with amendments under appropriate subtitles.” In the codification thus made and enacted Chapter 96 of the Acts of 1910 was included.

In answering the contention that the Act was unconstitutional, this Court there said: “In the codification thus made and enacted, chapter 96 of the Acts of 1910 was included. So, as has been recently decided, whatever defects of title may have existed in the prior statute, by reason of a failure in the title to meet the requirements of the Constitution of Maryland, the passage of the Code of Public Local Laws of Montgomery County, with the incorporation of the statute with the defective title, cured the defect in title of the codified statute, as the title of the statute enacting the Code complies with the provisions of section 29 of article 3 of the Constitution of Maryland. State v. Coblentz, 167 Md. 523, 526 , 175 A. 340 ; Dorchester County Commissioners v. Meekins, 50 Md. 28, 40 ; Lankford v. Somerset County, 73 Md. 105, 108 , 20 A. 1017 , 22 A. 412 ; Garrison v. Hill, 81 Md. 551, 555 , 32 A. 191 ; Johnson v. Luers, 129 Md. 521, 530 , 99 ⁴⁸⁷ A. 710; 59 C. J., secs. 376, 489, pp. 799, 892; 25 R. C. L. sec. 111, p. 867. So, it must be held that sections 846 and 847 of article 16 of the Code of Public Local Laws cannot be held illegal, because of defect of title, since the codification of 1912.” See also Bond v. State, 78 Md. 523 , 28 A. 407 .

The previous defect in the title was therefore corrected and the Ordinance is valid. The appellant, as a further argument that Ordinance No. 94 is unconstitutional, contends that it is too vague and fails to fix an ascertainable standard of guilt. With this contention we do not agree. Of course, a duly enacted statute is presumed to be constitutional.

Hammond v. Lancaster, 194 Md. 462 , 71 A. 2d 474 ; Shub v. Simpson, 196 Md. 177 , 75 A. 2d 842 . Among other cases relied on by the appellant are: Hoke v. Lawson, 175 Md. 246 , 1 A. 2d 77 , where the word “skill” in a statute providing for the licensing of pinball machines was held too indefinite; and Loughran Co. v. Candy & Tobacco Co., 178 Md. 38 , 12 A. 2d 201 , in which this Court held that the clause “Sales * * * at prices which cannot be justified by existing market conditions * * *” was too indefinite. As contended by the appellant and as stated in United States v. Cardiff, 344 U. S. 174 , 97 L. Ed. 200 , 73 S. St. 189: “Words which are vague and fluid (cf. United States v. Cohen Grocery Co., 255 U. S. 81 , 65 L. Ed. 516 , 41 S. Ct. 298 , 14 A. L. R. 1045) may be as much of a trap for the innocent as the ancient laws of Caligula. We cannot sanction taking a man by the heels for refusing to grant the permission which this Act on its face apparently gave him the right to withhold.

That would be making an Act criminal without fair and effective notice.” Assuming, as contended by the appellant, that the word “concerned”, as here used, is equivalent to the word “interested” (Philadelphia Sub. Co. v. Penn. P. U. Commission, 168 Pa. Super. 360 , 78 A. 2d 46 ) we think the statute is definite enough to fix an ascertainable standard of guilt. ⁴⁸⁸ In Foote v. State, 59 Md. 264 , the statute provided., a penalty- for “any person who shall brutally assault” his-wife.

This Court held that the term “brutal” was “definite. enough to the common apprehension of mankind.” In State v. Magaha, 182 Md. 122 , 32 A. 2d 477 , the term “reasonable care” was held to be a. degree of care which a person of ordinary prudence would exercise under similar circumstances and established a standard of conduct sufficiently definite to afford an ascertainable test of guilt, and did not violate the due process clause of the Fourteenth Amendment of the Federal Constitution or Article 23 of the Maryland Declaration of Eights. In Glickfield v. State, 203 Md. 400 , 101 A. 2d. 229, the appellant was convicted of violating a statute which provided that “Any person or persons who shall bribe or attempt to bribe any persons participating in or connected in any way with any athletic contest held in this State shall be deemed guilty of bribery * * *.” The statute was attacked on the ground that it was so vague as to violate the constitutional guarantee of due process. It was there held that the words of the statute must be accorded the meaning naturally given them in ordinary usage, that a person of ordinary intelligence reading that statute would not be in doubt as to the nature of the acts condemned, and that a conviction under that statute would protect the defendant from a subsequent prosecution for the same offense. In Black’s Law Dictionary, 3rd Ed., 1944, in which definitions are given with cases cited, the word “directly” is defined as “In a direct way without anything intervening; not by secondary, but by direct,- means,” and the word “indirectly” is defined as “A term almost always used in law in opposition to ‘direct,’ though not the only antithesis of the latter word, as the terms ‘collateral’ and ‘cross’ are sometimes used in contrast with ‘direct.’ ” In Webster’s New International Dictionary, 2nd Ed., the word “indirectly” is defined as “remotely connected with.” Black defines the word “concerned” ⁴⁸⁹ as “Relating to; pertaining to; affecting; involving; being substantially engaged in or . taking part in.” The meaning of these words are certainly understood by persons of ordinary intelligence.

Two Connecticut cases, cited by the appellee, are very helpful on this question. In State v. Zazzaro, (1941), 128 Conn. 160 , 20 A. 2d 737 , the statute forbade a stockholder of a corporation manufacturing or wholesaling alcoholic liquor to “lend money or otherwise extend credit directly or indirectly to any permittee holding a retail liquor permit.” It was contended that these words were so vague and uncertain as to make the statute unconstitutional. It was there said in holding the section constitutional as not violative of the due process clause: “We fail to discover anything arbitrary or unreasonable in this. The prohibition has direct and rational relation to its purpose.

The test of certainty in a criminal statute is discussed in State v. Andrews, 108 Conn. 209, 213 , 142 A. 840, 841 , where it is said that such statutes will not be held void for uncertainty ‘if any practical or sensible effect may be given to them.’ Such effect is plainly apparent in the present case.” In State v. Genova, (Conn., 1954), 107 A. 2d 837 , the statute prohibited selling or exchanging or being “concerned” in selling or exchanging policy tickets. It was there said: “The wording of the statute is sufficiently broad to encompass not only the actual act of selling or exchanging some tangible object in the form of a slip or a ticket but also being ‘concerned’ with selling or exchanging it. See State v. Mola, 128 Conn. 407, 409 , 23 A. 2d 126 . One is concerned in a certain matter when he has some connection with it, when it affects his interests or involves him.

Then, too, one is ‘engaged’ in an affair when he is involved with it or has some interest in it. Webster’s New International Dictionary (2d Ed.). The intent expressed by the statute is to make one' who participates, is involved or has an interest in the acts proscribed subject to the penalties set forth. * * * It is sheer indulgence in the technicality of ancient ⁴⁹⁰ common-law pleading, where the great number of crimes punishable on the gibbet made it necessary to resort to fine-spun reasoning to save the neck of the victim, to say that an information which charges that an accused ‘did engage’ in doing a prohibited act is not comprehended by a statute which forbids being ‘concerned’ in doing it.” The appellant further contends that his acts do not come within the purview of the ordinance. The testimony shows that the appellant has been engaged for many years in the general practice of law in Baltimore City.

He was appointed a member of the Commission in 1948 and continued thereon until October, 1953. While a member of the Commission, about September 22, 1950, he was employed by Albert Haar and Samuel Winik, who were engaged in the automobile parking business, to reorganize their business interests, to effect proper estate planning and to effect tax savings. In the process of so doing, appellant formed some four or five different corporations and also brought up to date the records of Haar-Win Parking Co., Inc., an old corporation under which Haar and Winik had been operating up to that time. Among the new corporations thereby formed by him for Haar and Winik were Baltimore Garages, Inc., and Charles Street Garage, Inc. On August 10, 1950, Haar and Winik, as individuals, filed an application with the Commission for a loan to buy land and build an off-street parking garage thereon.

On the recommendation of the Commission, of which the appellant was then a member, the City granted a loan to Baltimore Garages, Inc., by an agreement dated January 17, 1951. The minutes of this corporation, which the. appellant had helped prepare, showed that this contract was taken in the name of Baltimore Garages, Inc., formed for Haar and Winik by. appellant, rather than in the names ' of Haar and Winik, who had made the application as individuals. Appellant testified that this was done for tax. purposes. Construction was begun on this contract ⁴⁹¹ in April, 1951, and completed in March or April, 1952, and the loans were advanced by the City during that period.

On June 7, 1951, Charles Street Garages, Inc., which the appellant had formed, made application to the Commission for a loan for an off-street parking garage. At that time the appellant was counsel for the corporation and for the individuals, who were controlling stockholders and the principal officers of that corporation. The appellant was also at that time a member of the Commission. On September 27, 1951, the contract with Charles Street Garage, Inc., was approved by the Commission.

The City thereupon made a loan to it. This contract was later modified by an agreement dated October 10, 1952. It was shown at the trial that the usual policy of the Commission is to require that any party receiving a loan put up in advance fifteen percent of the cost of construction. However, the Commission was advised by a letter dated April 24, 1951, that Baltimore Garages, Inc., was not financially able to put up this fifteen percent in advance and a request was made for permission to do this in installments rather than in a lump sum.

The Commission, of which the appellant was a member, at a meeting at which appellant indicated he was present, permitted this exception from the usual procedure with the definite statement that it was not to be considered as a precedent. Appellant was asked the question: “You knew maybe there were other members on the Commission who may have had friends or clients that may have been interested, but didn’t they excuse themselves from considering their projects?” He answered: “I don’t recall that until just lately, sir.” The law firm, of which appellant was a member, also represented Haar and Winik and some of their corporations in some other cases such as the demolition of a wall and damages to an automobile. For his services appellant was to receive a fee in the amount of $6,000.00 for the incorporation of the four or five companies, for ⁴⁹² bringing the old corporation up to date, for the estate planning, and for personal advice as to the tax situation of Haar and Winik individually. This fee was to be paid over a period of three years at the rate of $2,000.00 per year.

Appellant received for other services rendered by his office fees of approximately $450.00. All of these fees were paid between October, 1950, and May, 1953. The checks, given in payment for the advice, were not made payable to the appellant but to another lawyer whose offices adjoined that of appellant. Appellant admitted that all of these fees were received in the account of his law firm.

This was done