Meushaw v. State

Burke, J., delivered the opinion of the Court. The Mayor and City Council of Baltimore, by Ordinance 283, approved May 20th, 1907, made provision for the erection and maintenance of a wholesale produce market in Baltimore City. Section 101 of the Ordinance defined the limits of the market; section 102 provided that it should be used solely for the purpose of wholesaling all produce and fruits brought to Baltimore in vehicles, and that retailing therein should be unlawful; section 104 declared that no permanent ⁸⁶ structures of auy character should he erected within the market; section 105 provided that the market should he open every day in the week, except Sundays and holidays, between the hours of three o’clock A. M. and six o’clock P. M., and should be thoroughly cleansed every market day after five o’clock P. M. Sections 106 and 107, which give rise to the important legal questions presented by the record, are as follows: “106. All dealers and commission men shall pay in advance two hundred dollars per annum for the use and privilege of selling in this market.

Wholesaling in the public •streets is unlawful. 107. License for selling shall begin May 1 of each year, and must be paid by May 10 of each year, otherwise the same shall be void.” Section 108 imposes certain duties upon the assistant market master, and makes it unlawful for anyone to interfere with him in’ the discharge of his duties. It then provides that “anyone failing, or refusing to observe, or violating the provisions and requirements of Section 106 to 108 shall be deemed guilty of a misdemeanor, and shall be subject to a fine of ten dollars for each and every offense, the same to be collected as other fines and penalties are collected.” Clinton Meushaw, the appellant, was indicted and convicted in the Criminal Court of Baltimore for violating the provisions and requirements of this Ordinance, and was ad- ’ judged to pay a fine of ten dollars and costs. From this judgment he has brought this appeal.

The indictment contains six counts; but the fourth and fifth counts were quashed by the Court at the request of the State’s Attorney. It is unnecessary to set out the averments of the remaining counts. They each substantially charge that on the 29th of June, 1907, the' appellant being a dealer and commission man engaged in selling produce and fruits at wholesale in the wholesale produce market of Baltimore City, did sell at wholesale in said market produce and fruits brought to said City and market in wagons, without having paid two hundred dollars per annum for the use and privilege of selling produce and ⁸⁷ fruits in said market, in violation of Sections 106 and 108 of the above mentioned Ordinance. The traverser demurred to each count of the indictment, but the Court overruled the demurrer, and the case proceeded to trial upon the joinder of issue upon the appellant’s plea of not guilty.

The State offered in evidence Sections 101, 102, 103, 104, 105, 106 and 108 of the Ordinance above mentioned. It then produced Mr. Harry Hooper, the City Comptroller whose duty it is to collect the market rentals and license fees, who testified that he had the record of the persons who occupied the wholesale produce market during the year 1907, and of those who paid the rentals or license fees for that year required by the Ordinance offered in evidence which is two hundred dollars, and that the traverser did not pay said sum. It then called Mr. Sanner, the assistant market master at Centre Market, which includes the wholesale produce market, who testified that he visited the market daily from May 20, 1907 to July 1, 1907, and that continuously during that period he saw the traverser, who was a wholesale produce dealer, or commission merchant, selling at wholesale all sorts of produce, fruits, and strawberries; that he sold in the wholesale produce market whenever he could get his wagon in; that the produce reached the market by wagons, and vras sold by the wagon load within the limits of the market, and in one of the said aisles which ran through the market; that the traverser never paid the fee of two hundred dollars required by the Ordinance, but refused to pay the same, and that after his refusal to pay he continued to sell as a commission merchant until Jrdy 1. This witness on cross-examination said that the seven aisles were driveways with seven openings, running from the east to the west, from M.arket Space to West Falls Avenue, straight through the market.

The following questions were asked the witness on cross-examination: “1. Suppose a wagon went in one of these aisles, could it get in the other aisle ?” “2. Suppose a wagon in that aisle would sell its goods before a wagon ahead of it, could the wagon which had sold get out?” “3. Where was ⁸⁸ Mr. Meuskaw selling before the market was completed ?” “4.

I)id you notify him that he must go to this market?” The Court, upon objeeled by the State refused to allow the witness to answer these questions, and these rulings constitute the appellant’s first, second, third, and fourth bills of exception. Charles H. Schenkel was called and testified that Meushaw did business in the wholesale produce market during the whole season of 1907, that is during July, August, and September of that year; that he sold produce by the wholesale, which is brought in country wagons, and sold from the wagons, the wagons being somewhere in one of the seven aisles. On cross-examination the witness was asked the following questions which the Court, upon objections by the State, would not permit him to answer: “1. Was there any special aisle assigned to any of these commission merchants ?” “2.

Can you explain to the jury how these aisles are constructed?” These rulings are made the subject of the traverser’s fifth and sixth bills of exception. He then offered to read to the jury Section 107 of the Ordinance; but the Court would not allow it to be read in evidence. This ruling constitutes the seventh and last bill of exception. With this statement of the material facts we are prepared to consider the reasons urged by the appellant in support of the demurrer.

It is said that the charge of two hundred dollars imposed by Section 106 of the Ordinance is void: First, because it is unreasonable. Second, because it is not uniform as to all produce dealers and commission men. Third, because there is no authority under the Charter of Baltimore City given to the Mayor and City Council to impose such a charge for the use of the market. Eoui’th, that if the Ordinance be not invalid for any oi” all of these reasons, it is contended that the appellant had not violated any of the provisions of the Ordinance if Section 107 be valid, because the charge imposed by Section 106 was not payable for the year 1907 since the Ordinance was not approved until May 20, 1907, and) therefore, the requirement of that section could ⁸⁹ not become operative or binding upon the traverser until May 1, 1908; but, it is further contended that if that Section be invalid, the demurrer should have been sustained, because by -Section 59 of the City Charter the license imposed was not -due and collectible until the first week of January, 1908.

As the demurrer denies the power of the City to pass the Ordinance it is proper in the first place to advert to the general rule respecting the construction of municipal powers. In St. Mary’s Industrial School v. Brown, 45 Md. 310 , this Court, speaking through Judge Alvey, stated the rule in these words: “And first and principally, we must bear in mind that all such powers are delegated, and depend upon legislative charter or grant; and that the corporate authorities can exercise no power which is not, in express terms, or by fair and reasonable implication, conferred upon the corporation. In construing a grant of municipal powers, in the case of Minturn v. Larue, 23 How. 435 , the Supreme Court of