State v. Gurry

Constable, J., delivered the opinion of the Court." There is involved in this appeal the validity of the ordinance of the Mayor and City Council of Baltimore City, known as the Segregation Ordinance (City Ordinance Eo. 692, May 15th, 1911). The appellee, a colored man, was indicted for violation of section 2 of said ordinance and upon the lower Court sustaining a demurrer to the indictment, this appeal was taken from the judgment thereupon entered. The ordinance, which is composed of ten sections, is entitled “An ordinance for preserving peace, preventing con ⁵³⁷ fliet and ill feeling between the white and colored races in Baltimore City, and promoting the general welfare of the city by providing so far as practicable, for the nse of separate blocks by white and colored people for residences, churches and schools.” Section 1 provides: “That from and after the passage of this ordinance it shall be unlawful for any white person to move into or use as a residence or place of abode any house, building or structure, or any part of any house, building or structure situated or located on any block, as the same is hereinafter defined in section 4, the houses, buildings and structures on which block, so far as the same are occupied or used as residence or places of abode, in whole or in part shall be occupied or used as residences or places of abode by colored persons, otherwise than as provided in section 3 hereof. Such a block shall be deemed a colored block for the purposes of this ordinance.” Section 2 is in the identical language of section 1, except that it prohibits any colored person from doing what section 1 prohibits any white person from doing.

Section 3 excepts domestic servants from the operation of sections 1 and 2 when they reside with their employers. Section 4 is, “That the word ‘blocks’ as the same is used in this ordinance shall be construed to mean that portion of any street or alley upon both sides of the same between the two adjacent intersecting or crossing streets.” And further provides the method, in cases where either of the adjacent streets intersects but does not cross the street upon which the block in question may be located, by which that portion of the block on the side of the street facing the intersecting street is to be classified. Section 5 fixes the penalty for violation of the prohibitions of sections 1 or 2 of the ordinance. Section 6 provides the manner of determining whether blocks upon which there were no buildings used as residences at the time of the passage of the ordinance, but upon which it is desired by the owners thereof to erect buildings for the ⁵³⁸ purposes of residences, shall become either colored or white blocks.

Section 7 provides the means whereby blocks which were either white or colored under sections 1 and 2 can be opened to the occupancy of both white and colored persons. Sections 8 and 9 provide that no buildings, not so used prior to the .passage of the ordinance, shall be used as churches or schools without a permit from the Board of Police Commissioners and no permit shall be issued to allow the use of such buildings by colored persons in a white block or white persons in a colored block. Section 10 provides that nothing in the last four sections shall be taken to affect-the validity of the first five sections. The learned judge below, in sustaining the demurrer, filed an opinion, from which it appears that the reason for the Court’s action was based upon the unenforceability of the ordinance because of the uncertainty of the language of sections 1 and 2.

There can be no question, that this being a penal ordinance, it must be strictly construed; but this rule is open to the limitation that the construction must not be an unreasonable or forced one. As was declared in Keller v. State, 11 Md. 525 : “Even penal statutes which it is said should be strictly construed, ought not to be so strictly construed as to defeat the obvious intention of the Legislature. And though they are not to be extended by construction, they should receive a rational interpretation.” In Wharton s Criminal Law (10th Ed.), sec. 28, the rule is stated thus: “Penal statutes are to be strictly construed. In construing such statutes, however, we are to look for their reasonable sense, and if this is clearly .ascertained it must be applied though a narrower sense is possible.” In the opinion of the Court we find this language: “In an effort to interpret these sections (1 and 2) we are forced to the conclusion that the thing prohibited is the residence of a white person in a block occupied, in whole or in part-, by colored persons, or the residence of a colored person in a ⁵³⁹ block occupied, in whole or in part, by white persons.” Erom which, and also other portions of the opinion, it is apparent that the words “in whole or in part” were taken to modify the word block.

But this is a construction to which we cannot accede. Although at a casual reading of these two sections the language does apparently admit of this construction, nevertheless, upon close scrutiny it is clear that the words “in whole or in part” were used to modify the words “residences or places of abode.” Therefore the meaning of the language of the sections is plain that the thing prohibited is, that when the buildings on a block, “so far as the same are occupied or used as residences or places of abode, in whole or in part, shall be occupied or used as residences or places of abode” by the members of one race, that then no member of the other race shall occupy any building on that block as a residence. The effect of the words “in whole or in part” being to cover blocks where all of the houses were wholly occupied as well as where there were some vacant, but all that were occupied, being occupied by the members of the same race. Or where some of the houses were partly used as residences and partly as shops, stores or other purposes other than residences, that in that event the only portion of the house to be considered in determining as to whether or not the block should come under the operation of the ordinance was to be the portion used as residences.

The blocks, which at the time of the passage of the ordinance were occupied by both white and colored, are left entirely free for the same character of occupancy. Although language could have been used to make the moaning clearer, we are of the opinion that these sections are free from uncertainty, and therefore it was error to have declared the ordinance void for that reason. The appellee contends that the ordinance is in conflict with sec. 221 of the City Charter, p. 360, wherein it is provided: “Every ordinance enacted by the City shall embrace but one subject, which shall be described in its title, etc.” This has been declared to be an adaptation of Article 3, section 29 of the State Constitution. There have been so many adjudica ⁵⁴⁰ tions upon that section that there can no longer be any doubt as to its correct interpretation.

And what was said in the case of Gans v. Carter, 11 Md. 1, seems to be applicable here: “We have but a word to say and that is to repeat what we have so often said, that the object of this clause was to prevent the embodying into the same act distinct and separate matters of legislation, having no connection whatever with each other and matters not referred to in the title.” Measured by this standard there can be no force in the contention. The main question in this case arises, however, over whether the provisions of this ordinance are in conflict with Article 23 of the Bill of Rights of the Constitution of Maryland, and the first section of the Fourteenth Amendment of the Constitution of the United States. The title to the ordinance recites its purposes to be “for preserving peace; preventing conflict and ill feeling between the white and colored races in Baltimore City, and promoting the general welfare of the City,” etc. What is applicable to the white race is made precisely applicable to the colored race. ISTo advantage that is enjoyed by one race is denied the other.

Every restriction placed upon the one is in exact terms imposed upon the other. Upon whether or not this ordinance is a valid exercise of the police power must depend its enforceability. That the City has the power under its Charter to pass ordinances in the exercise of the police power, equal to legislative enactments, must be regarded as settled in this State since the case of Rossberg v. State, 111 Md. 394 , wherein this Court said: “Broader or more comprehensive police powers could not be conferred under any general grant of police power, for the purposes mentioned in section 18, than those granted in that section, and when we consider the ‘Welfare Clause’ of the Charter, section 31, greater emphasis could not be laid upon the implied powers of the City for the maintenance of the peace, good government, health and welfare of the City than is there laid * * * In the present case, the legislative grant is not merely one of power to pass ordinances relating ⁵⁴¹ to specified police powers, regarded as a part only of the general police power, but the grant is of all the power commonly known as the police power, to the same extent as the State has or conld exercise said power within said limits. The implication therefore is a necessary one, that notwithstanding the preceding clause of that section of the Charter enumerated certain purposes for which ordinances might be passed, the Legislature intended the City to have, in addition, the power to pass ordinances for any and all purposes relative to the exercise of the police power.” If then the Legislature could pass a statute under the police power of the State, providing for the segregation of the races, as we think it could, there would seem to be no doubt that the Mayor and City Council of Baltimore can pass a valid ordinance having the same end in view.

It is true, however, that, notwithstanding the broad powers vested in the Mayor and City Council by the charter, some distinction is made between statutes passed by the Legislature and ordinances passed by a municipality under the police power — one illustration of which is what was said by Ohiee Judge McShebey in State v. Hyman, on page 618 of 98 Md. The Court must undoubtedly take into consideration the reasonableness of the provisions of this ordinance and determine whether any of those involved in this case are so unreasonable or oppressive as to cause it to assume that the Legislature did not intend to empower the municipality to enact them as they stand — whatever may be said as to the Court’s powers in construing statutes which have a real and substantial relation to any object properly within the police powers of the State. Both State and Federal Courts have been most industrious in dealing with the many cases growing out of the laws claimed to have been passed in the exercise of this power, known as the police power, and it might be well to consider what is meant, in a constitutional sense, by that term. As was said by that learned jurist, Chibe Justice Shaw, in Commonwealth v. Alger, 7 Cush. 53 : “It is much easier to per ⁵⁴² eeive and realize the existences and sources of this power than to mark its boundaries, or prescribe limits to its exercise.” And the definition there given has been, probably, more often quoted with approval than any other. “The power vested in the Legislature by the Constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with or without penalties, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same.” In Champer v. Gtreencastle, 138 Ind. 339 , it is thus defined: “The police power of the State, so far has not received a full and complete definition. It may be said, however, to be the right of the State to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community, which do not encroach on a like power vested in Congress by the Eederal Constitution or which do not violate any of the provisions of the organic law.” In State v. Wagener, 77 Minn. 483 : “The power to impose such restrictions upon private rights as are practically necessary for the general welfare.” In Deems v. Baltimore City, 80 Md. 173 , this Court said: “Every well organized government has the inherent right to protect the health and provide for the safety and welfare of its people.

It has not only the right, but it is a duty and obligation which the sovereign power owes to the public * * * It. may be said to rest upon the maxim ‘salus populi, suprema lex’ and the constitutional guarantees for the security of private rights * * * have never been understood as interfering with the power of the State to pass such laws as may be necessary to protect the health and provide for the safety and good order of society. ‘Property of every kind’ says Mb. Justice Stobt ‘is held subject to those general regulations which are necessary for the common good and general welfare.’ And the Legislature has the power to define the mode and manner in which every one may use his property.” In State v. Hyman, 98 Md. 596 , “The exercise of the police power being for the promotion of the public good is superior ⁵⁴³ to all considerations of private rights or interest, and by virtue of it the State may lawfully impose upon the exercise of private rights such burdens and restraints as may be necessary and proper to secure the general health and safety.” In Police Commr. v. Wagner, 93 Md. 191 , the Court said: “The State has power to pass such laws as are necessary to protect the health, morals or peace of society.” In Cochran v. Preston, 108 Md. 220 , “The power to prescribe regulations demanded by the general welfare for the common protection of .all is known as the police power of the State and is inherent in every sovereignty.” The Supreme Court has, times almost without number, been called to pass upon laws enacted by the States upon matters relating to their internal government, and has given expression to the meaning to be ascribed to the police power. In the Slaughter House Cases, 16 Wall. 62 , which were the first cases involving a construction of the Fourteenth Amendment, the Court said: “This power is and must be from its very nature incapable of any very exact definition or limitation. "Upon it depends the security of social order, the life and health of the citizens, the comfort of an existence in a thickly populated community, the enjoyment of private and social life and the beneficial use of property.” “It extends” says another eminent judge “to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State,” “and persons and property were subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the State.

Of the perfect right of the Legislature to do this no question ever was, or upon acknowledged principles, ever can be made so far as natural persons are concerned.” In the case of Beer Co. v. Mass., 97 U. S. 25 , it was said: “Whatever difference of opinion may exist as to the extent and boundaries of the police power * * * there seems to be no doubt that it does extend to the protection of the lives, health and prosperity of. the citizens, and to the preservation ⁵⁴⁴ of good order and public morals.” Again in District of Columbia v. Brooke, 214 U. S. 138 : “It is tbe most essential of powers, at times tbe most insistent and always one of the least limitable of the powers of government.” It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by prevailing morality or strong and preponderating opinion, to be greatly and immediately necessary to the public welfare.” Noble Bank v. Haskell, 219 U. S. 104 . In Barbier v. Connolly, 113 U. S. 27 , the Court said: “But neither the Amendment (14th) — broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the State, sometimes called the