Mogul v. Gaither

Thomas, J., delivered the opinion of the. Court. The appellant filed in the Circuit Court Ho. 2 of Baltimore City a bill of complaint alleging that he was engaged in The retail jewelry business at lOL Horth Gay Street, in Baltimore City, which property was condemned by the city make room, for “the proposed civic center,” and in order that ho might retain his trade and business, which he had established through much toil and effort, he had moved his stock and belongings to 314 West Baltimore Street, from, which point lie has conducted auction sales, as he had done at various times at his former place of business, said sales being conducted by a licensed auctioneer of Baltimore City; that the defendant, the Police Commissioner of "Baltimore City, through Ms agents, has attempted to hinder, prejudice, molest and interfere with his business by threatening; to annoy and disturb the peace of persons who may visit- his jewelry store for the purpose of attending the “periodic auction sales” conducted by- Mm; that on the 13th of March, 1922, the defendant, through his agents, arrested the plaintiff and charged him with violating city ordinance Ho. 684, approved March 3rd, 1922, and that he was held “for the action of the grand jury in $100 bond.” After setting out the ordinance referred to, the bill further alleges that, notwithstanding said ordinance provides- that “snch sale at public auction of the ³⁸² stock on hand of such merchant or merchants shall be held on successive days, Sundays and legal holidays excepted, and shall not continue for more than thirty days in all within the period of one year,” the defendant, with knowledge of the above provision of the ordinance, ordered his arrest and threatened to interfere with his auction sales in disregard of his right to continue such sales for the period of thirty days from the date of the approval of the ordinance; that he is advised that the action of the defendant, based on said ordinance, tends to deprive him of the use and enjoyment of his property guaranteed to him by the Cbnstitution of this State and the Constitution of the United 'States, and that said ordinance is unconstitutional and void (1) because it is contrary to section 1 of article 14 of the Constitution of the United States; (2) because it is contrary to article 23 of the Declaration of Rights, and (3) because the title of the ordinance is bad in that it does not sufficiently describe its subject as required by “section 29, article 3 of the Constitution” of this State and is misleading. The prayers of the bill are, (a) that “the validity of said ordinance may he determined”; (5) that the defendant, and those acting under him, may be restrained from interfering with the plaintiff in the conduct of his said auction business; (e) that the defendant and those acting under him may be restrained from interfering with the plaintiff’s business “during the period from the date of the approving of the ordinance, to wit: March 3rd, 1922, and until thirty days thereafter,” and (d) for general relief.

The defendant demurred to the bill, and tbis appeal is from the decree.of the court below sustaining tbe demurrer and dismissing the bill. The ordinance in question, which is set out in the bill, is as follow®: “No. 684. “An ordinance to prohibit the sale at public auction of any gold, silver, plated ware, precious stones, watches, clocks or jewelry. ³⁸³ “Section 1. Be it ordained by the Mayor and O'ity Gouncil of Baltimore, That it shall be unlawful for any person or persons or corporation to sell, dispose of, or offer for sale, in tbe City of Baltimore, at public auction, or to cause or permit to be sold, disposed of, or offered for sale, in tbe City of Baltimore, at public auction, any gold, silver, plated ware, precious stones, watches, clocks or jewelry, whether the same shall be tbeir own property or whether they sell the same as agents or employees of others; provided, however, that this auction shall not apply to judicial sales or sales by executors or administrators nor to sales by or on -behalf of licensed pawnbrokers of unredeemed pledges in manner provided by law, nor to tbe sale at public auction of tbe stock on band of any person or persons or corporation that shall, for the period of one year next preceding such sale, have been continuously in business in tbe City of Baltimore as a retail or wholesale merchant of gold, silver, plated ware, precious stones, watches, clocks or jewelry; provided, further, that such sale at public auction of tbe stock on hand of such merchant or merchants shall be held on successive days, Sundays and legal holidays excepted, and shall not continue for more than thirty days in all within the period of one year. “Section 2. Be it further ordained, That any person or persons or corporation convicted of a violation of the preceding section shall be fined tbe sum of $10.00 for tbe first offense and $20.00 for every subsequent offense.

Each separate sale, at public auction, of an article or articles of gold, silver, plated ware, precious stones, watches, clocks or jewelry in violation of the preceding section shall constitute a separate offense hereunder. “Section 3. And be it further ordained, That this ordinance shall take effect from tbe date of its passage.” The contentions of the appellant in this Court are, as stated in his brief, that the ordinance is unconstitutional and ³⁸⁴ void, “1.- Because the object and content of said ordinance are not expressed or described in the, title * * * as is required by section 221 of the Charter of the City (Weeks’ ed.),” and “2. Because * * * it maltes unreasonable and arbitrary class distinctions in violation of the Fourteenth Amendment of the Federal Constitution.” Section 221 of the Charter provides that “Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title.” We said in Baltimore v. First M. E. Ch., 134 Md. p. 603: “The general rules of construction which govern in the interpretation of acts of the Legislature are applicable to legislative acts of a municipal corporation (State v. Kirkley, 29 Md. 85 ), and no- good reason can be assigned why the rules governing the courts in determining whether an act has been passed in accordance with, the provisions of the Constitution should not be applied in determining whether an ordinance has been passed in accordance with the- provisions of the charter of a, municipal corporation.” See also Baltimore v. Wollman, 123 Md. 310 , and Bouis v. Baltimore, 138 Md. 284 . As the provision referred to of section 221 of the Charter of Baltimore City is similar to the provision of section 29 of Article 3 of the Constitution of this State, the appellant insists that the case of Nutwell v. Anne Arundel County, 110 Md. 667 , is conclusive of the question here-.

But we cannot adopt that view. In that case the Court, referring to the title and provisions of the ant, said: “The title of this act is: ‘An act to add two- new sections to article 2 of the Code of Public Local Laws, title “Anne Arundel County,” sub-title “Roads,” so as to require all owners of vehicles u-sing public streets and roads in Anne Arundel County to have a license therefor.’ Section 1 adds two new sections to article 2 of the Code of Public Local Laws, * * * to follow immediately after section 203 X to be known as sections 203 Y and 203 Z. S'eetion 203 Y declares that it shall not be lawful to run, or suffer to be run upon any of the streets and roads in Anne Arundel County a vehicle of any description whatsoever, except ox carts, horse carts, ³⁸⁵ farm vmgons and milk wagons, witlicn.it first having obtained from the Clerk of the County Commissioners of Anne Arundel County a license at the rate fixed. * * * Section 203 Z, after making certain provisions requiring the license to. be attached to the vehicle and conferring the power to transfer the license, exempts the owner of the vehicle so- licensed from the payment of any other lax upon the same.” After referring to several of the oases in this State, the Court, in holding the title to be bad, said: “The mere statement of the substantial provisions of the act demonstrates its invalidity under the rules stated. Under a title to require all owners of vehicles using the streets and roads of Anne Arundel County, there is contained in one section an .exemption of a large class of vehicles, and in the other an exemption from all other taxation upon the vehicles licensed. There is not the faintest suggestion in the title of the act to lead any one to suspect that such exemptions were, or might be, introduced in the law.

In these respects, the title is not only too narrow, but it is clearly misleading. Besides this, one of the provisions of the act — that which exempts certain prop7 erty from taxation — is wholly foreign to. the subject matter described in the title.” It is clear from the language quoted that the controlling features of the ease were that while the title of the act declared that it was. an act to. require all owners of vehicles, &c., to have a license, the hody of the act not only