State v. Burkett

Thomas, J., delivered the opinion of the Court. The appellee was indicted under an ordinance of the Mayor and City Council of Baltimore for unlawfully resisting’ and obstructing a certain Thomas H. Paterson while in the execution of his duties as assistant market master and clerk of Lexington market. He filed a'special plea to the indictment to which the State demurred. The Court overruled the demurrer and quashed the indictment, and from the judgment quashing the indictment the State has appealed.

The indictment charges that on the 8th day of December, 1911, which was on Friday and was one of the market days of Lexington Market, at the hour of 8 o’clock in the morning, which was within the hours of Lexington Market, “one Pozita Lamartina was lessee and licensee of a stall and stand on Eutaw street between Lexington street and Saratoga street, west of the flag stone on the east side of Eutaw street and within the limits of Lexington Market in said city as prescribed and set forth in an ordinance of the Mayor and City Council of Baltimore, to wit, 'section one hundred and thirty-six of Article thirty-five of the Baltimore City Code of the year 1893,’ which stall and stand was and was known as stall Ho. 330 of Lexington Market” and that on said day and at said hour the appellee obstructed said stall and stand by placing a wagon and cart within the lines thereof as cut in the curbing, and refused to remove said obstruction when ordered ⁶¹¹ to do so by the assistant market master and clerk of Lexington Market. Tbe plea admits that the appellee placed a horse and wagon in Eutaw street within the lines of the stand and stall held by the said Lamartina as the lessee and licensee of the Mayor and City Council of Baltimore, and that he refused to remove the same when ordered to do so by the assistant market master and clerk of Lexington Market, and then alleges that as a defense: “That the said Eutaw street is a imblie street and highway of the City of Baltimore, running through said City of Baltimore from the north to the south, and being eighty feet in width from building line to building line, with the road, designed for the use of vehicles, thereof forty-eight feet in width from curb to curb, having in said roadway two car tracks of the United Railways and Electric Company, which said car tracks are located a distance of sixteen feet from the curb on each side of said street and highway, and that the distance between the said two car tracks in the center of the street is four feet and two inches, and that the sidewalks of said street on each side thereof are each sixteen feet in width from building line to curb line; that the said Eutaw street is one of the main highways of the City of Baltimore, having upon it a very large vehicle traffic consisting of the electric cars of the United Railways and Electric Company, running at intervals of two minutes in each direction thereon, and extremely large numbers of automobiles, wagons, carriages and carts, used both for pleasure and business, constantly passing up and down upon said street and highway, and that the side walks thereof, owing to a large number of retail stores occupying the buildings erected on said street, are used and employed by thousands of pedestrians constantly passing to and fro for the purpose of engaging in trade with said stores. ⁶¹² “That the Mayor and City Council of Baltimore owns and operates a market house known as Lexington Market House, situated in the bed of Lexington street and extending from the west side of Eutaw street to the east side of Pearl street, and that the Mayor and City Council of Baltimore has caused and procured the curb on both the east and west sides of Eutaw street aforesaid, between Payette and Sara-toga streets, so being a public street and highway of the City of Baltimore aforesaid, to be marked with lines cut in the curb thereof, which said lines are eight feet apart, and have cut in said curb between each two of said lines a number in figures, the said lines delineating and limiting the boundaries of the market stalls and stands specified and designated by the numbers aforesaid; that said stalls and stands are leased by the said Mayor and City Council of Baltimore to persons desiring to conduct upon the said street and highway, to wit, Eutaw street, on market days as well as other days, the business of trafficking in fruits, nuts, produce, vegetables, flowers and other articles ordinarily sold in public markets, and the said Mayor and City Council of Baltimore issues to each of said persons occupying said stalls and stands a license to deal in the articles aforesaid at said stalls and stands; and that by said leases and licenses so issued as aforesaid, two whole squares or blocks aforesaid of the said street and highway, viz, Eutaw street, is and has been converted, by the said Mayor and City Council of Baltimore, into a market place for the sale of wares ordinarily sold in public markets. “That the said stalls and stands, so marked upon the curb of the said street and highway, are not located within the market house aforesaid, and are used and occupied by the said lessees and licensees, of which lessees and licensees the said Pozita Lamartina is one, during a large portion of each and every day of the week, Sunday excepted, especially upon the regular market days at said Lexington Market, viz, Tuesday, ⁶¹³ Eriday and Saturday; that at times the said stalls and stands are occupied from as early as five o’clock in the morning until as late as twelve o’clock midnight, and on numerous occasions, the said stalls and stands are allowed to be and remain in position during the whole night. “That the said stall and stand, number three hundred and thirty, is located about three hundred and thirty feet north from the aforesaid market house, known as Lexington Market, and, when occupied and in use, has erected upon it a removable table or platform constructed of trestles, having one end upon the sidewalk and the other end in the roadway of the said street, and having boards placed thereon, on which said table or platform a stock of fruit, vegetables and otner produce is kept and exhibited for sale by the said Pozita Lamartina to such persons as may desire to purchase the same, and in bad weather a canopy thereupon about 6' by 10'. That the person in charge of said stall and stand, when so used and occupied, stands upon the pavement in front of said stall and stand for the purpose of vending the produce thereon exhibited, and that boxes, barrels, baskets and other receptacles containing fruit, vegetables and other produce are placed upon the sidewalk adjacent to and in front of said stall and stand for exhibition and sale, and that persons desiring to buy said articles congregate upon the sidewalk in front of said stall and stand for the purpose of bargaining with the person in charge of said stall and stand; that quantities of refuse, debris and offal resulting from the character of the business there conducted by the said Pozita Lamartina, and other lessees and licensees of said stalls and stands, are permitted to be and remain upon the said sidewalk and roadway adjacent to the said stalls and stands, and that the said stall and stand is so conducted solely for the personal gain and profit of the said Pozita Lamartina. ⁶¹⁴ “That the said stall and stand number three hundred and thirty, so located and marked as aforesaid, is situated directly in front of and about fourteen and three-quarter feet from one of the entrances to the large department stores of Albert A. Brager and A. Stanley Brager, co-partners trading as Albert A. Brager,’ and known as ‘Brager’s Department Stores’; that the said stores occupy a frontage on the east side of Eutaw street south of Saratoga street extending from the south side of Saratoga street to a point about one hundred and sixty-nine and three-quarters feet south thereof; that the said stores have three separate doors on the east side of Eutaw street designed and intended for the purpose of ingress and egress to and from the said stores, and for the use of employees, patrons and customers thereof, and further designed and intended for the reception and delivery of the goods, wares and merchandise sold and received in said stores in the course of the transaction of the ordinary business thereof; that the said department stores maintain and keep an extremely large stock of wearing apparel, groceries, house furnishings, furniture, carpets, bedding, notions and all other classes of goods, wares and merchandise ordinarily sold in department stores of its character; that the extent of the business therein com ducted is so considerable that it is necessary to keep and maintain a large number of single and double team wagons for the transportation of the merchandise used and sold in said stores, to and from said stores as the same are bought and sold by the proprietors thereof, and that in order to properly receive and deliver the goods, wares and merchandise purchased and sold by said department stores, the said wagons, of necessity, require free access to the street and sidewalk in front of said stores, especially opposite said entrance, in order that they may be loaded and unloaded as they arrive at said premises. “That as aforesaid, the Mayor and City Council of Baltimore has caused the curb on the east side • of ⁶¹⁵ Eutaw street to be marked and numbered along the whole frontage of the said department stores, and that the said stall and stand number three hundred and thirty, of which Pozita Lamartina is lessee and licensee, is but one of a number of stalls and stands of like character occupying from time to time the street and sidewalk of the said Eutaw street in the same manner as that hereinbefore described; that when said stalls and stands, with their accompanying stocks of fruit, vegetables and other produce are occupied and in position, they are so close to the curb as to make it impossible for the wagons of the said department stores or wagons belonging to other persons or the carriages, automobiles or other vehicles used and employed by such members of the public who desire to approach said stores for the purpose of purchasing goods, wares and merchandise therein contained to come closer to the curb line of said street than about five feet therefrom, and that said stalls and stands form a continuous line along the front of said stores on Eutaw street, and that by said stalls and stands free access to said stores-by the public and the servants, agents and employees of said stores is obstructed and prevented, and that when said stalls and stands are occupied, the space between the tables placed thereon and the car tracks of the United Railways and Electric Company is only about ten feet. “That the aforesaid occupation of the said stall and stand, known and numbered three hundred and thirty as aforesaid, by the said Pozita Lamartina, as such lessee and licensee of the Mayor and City Council of Baltimore, as aforesaid, was on the said eighth day of December, in the year 1911, held and maintained without any permission from the employers of this defendant, who were then and there the owners, as aforesaid, of the property before which the said stall and stand was then and there placed, and that the said employers of this defendant had not then and there and theretofore received from the said Pozita Lamartina, or ⁶¹⁶ from the said Mayor and Oity Council of Baltimore, any compensation of any kind, nature or character for the use, damage to and additional servitude caused .to and placed by said occupation of said stall and stand upon the property belonging to the said employers of this defendant. “That this defendant is the driver and custodian of one ,of the wagons of the said Albert A. Brager and A. Stanley Brager, co-partners, trading as Albert A. Brager,’ and as such driver and custodian on the said eighth day of December, in the year 1911, at about the hour of eight o’clock in the morning' of said day, placed his said wagon in the roadway of Eutaw street immediately adjacent to the curb thereof, on the east side of said Eutaw street, in order that the said wagon might be loaded with goods, wares and merchandise then being in the said department stores, for the purpose of delivering the said goods, wares and merchandise to the patrons and customers of the said department stores, who had purchased the same from his said employers, and that in so placing the said wagon on the said Eutaw street within the space marked by the lines bounding and limiting the said stall and stand number three hundred and thirty of Lexington Market, this defendant acted solely and only in the course of .and in accordance with his employment and duty to his said employers, before whose premises the said wagon was placed by him for the purpose aforesaid, and this defendant could not so place said wagon, then being in his charge and custody, without obstruction to the use of said stall and stand number three hundred and thirty or other stalls and stands of like character, immediately adjacent to it, and if said defendant had obeyed the said order of the said Thomas BL Paterson, so being then and there the Assistant Market Master and Clerk of Lexington Market as aforesaid, this defendant would have been prevented by the erection of said stall and stand number three hundred and thirty from approaching the premises of his said em ⁶¹⁷ ployers for the purpose aforesaid, because, he says, that said stalls and stands, when so erected as aforesaid, obstruct and prevent the use of the roadway and sidewalks of said public street and highway, to wit, Eutaw street, in the ordinary and usual manner by the occupants of the property binding on said street and highway, and by the public generally desiring to traverse said highway either on foot or in vehicles.” As early as the Act of 1796, Chapter 68, the Mayor and City Council of Baltimore was given the power “to erect and regulate markets,” and among the powers conferred upon the City by its present charter is the power “To erect, regulate, control and maintain markets and stalls within the City of Baltimore, and to regulate and control the sale of all goods, wares, merchandise or other articles therein. To lease, sell or dispose of any stalls or stands in any market, in such manner and upon such terms as it may think proper.” Act of 1898, Chapter 123.

In Bouviers Law Dic. 97, a market is said to be “A public place appointed by public authority, where all sorts of things necessary for the subsistance, or for the convenience of life are sold.” In the case of. Caldwell v. City of Alton, 33 Ill. 416 , the Court said: “A market, says Blackstone (2 Com. 37), is a franchise or liberty derived from the crown, or in some cases held by prescription, which presupposes a grant, and may be granted to a public body or to a private person.” “It is a designated place in a town or city to which all persons can repair who wish to buy or sell articles there exposed for sale, and in some cities they are known by the articles there exposed to sale. They have been found to be a public convenience when properly regulated. Such regulations as the City authorities may adopt in regard to them should have, and generally have, reference to the preservation of peace and good order and the health of the city.

They should be of a police and sanitary character, and an ⁶¹⁸ attempt, by color of regulations, to restrain trade, is an abuse of the power. As the limits of this market are specially defined in the ordinance, and embrace but a portion of the City, the regulations prescribed for it can only operate within those limits. They could not, under this power, be made to extend throughout the city, but must be confined within the market limits.”' In pursuance of the power conferred by the Legislature upon the Mayor and City Council of Baltimore, ordinances have been passed from time to time fixing the limits of the several markets in the City. Section 108 of Article 35 of the City Code of 1879, which was a codification of the ordinance then in force establishing the limits of Lexingfon Market, provided: “The limits of the Lexington Market shall be as follows: beginning with the curb stone on the east side of Eutaw street, and running westwardlv the whole width of Lexington Market space, to the west side of Pearl street, and on Lexington street from the east side of Eutaw street, and the west side of Pearl street east to Howard street, and west to Pine street, and all streets crossing or intersecting said space south to Eayette street and north to Saratoga street, subject to the provisions regarding footways, prescribed by section 69, hereinbefore; provided, however, that nothing herein contained shall give the right to any person or persons to place any wagon, cart or other carriage upon Paca, Eutaw, Green or Pearl streets on market days, except the same shall be placed on a line in the center of said streets; and if any person or persons shall violate the provisions of this section, by placing any wagon, cart or other carriage (so as to prevent the access of any other wagon, care or other carriage), to the curb stone opposite any building, without the consent of the