State v. Strauss

Miller, J., delivered the opinion of the Court. This case is brought up by the State, as upon writ of" error, to have reviewed a judgment óf the Criminal Court of Baltimore City, sustaining a demurrer to an indictment and discharging the accused. The indictment charges, the defendant with disobedience of an order of the Board of Police Commissioners of the City of Baltimore, issued on the 22nd July, 1877, whereby the said Board “judging that the public peace and tranquillity required the same, and having lawful authority so to do, and in pursuance of the laws of said State in that behalf, ordered any and all bar-rooms, drinking houses, and all other places where liquor is usually sold in the City of Baltitimore, to be temporarily closed, that is to say, to be closed until further notice.” The true and only source of authority for an order of' this character, is found in that part of the Act of 1867, ch. 367, which amends and re-enacts section 818 of Art. 4 of the Code of Public Local Laws, and declares that “ the said Board of Police Commissioners are authorized and empowered, whenever in their judgment the public peace and tranquillity may require, to order the closing temporarily of any and all bar-rooms, bars, drinking houses, and liquor shops, and all other places where liquor is. usually sold in the City of Baltimore, and forbid the selling and furnishing of liquor thereat, and any proprietor or keeper, or other person for such proprietor or keeper of any such drinking house, place or places where liquor is usually sold, who shall refuse or fail to obey such order of said Board of Police Commissioners passed in pursuance thereof, or who shall sell or furnish liquor from, any such place or places during such period, as said Board shall so forbid shall be guilty of a misdemeanor, and it. shall be the duty of every officer of police, policeman and detective who may be cognizant of any violation of this-section, to report the same to the grand jury of the City ²⁹⁷ of Baltimore.” It has been intimated in the brief of counsel for the defendant in error, that it is a grave question, whether the Legislature could confer such a power upon this Board of Commissioners, but we cannot entertain a doubt upon that subject. When this Board was first organized, the law creating it (Act of 1800, ch. 7,) was subjected toa most severe and exhaustive examination and assault, and the validity of all its provisions was vindicated and sustained by a most able and elaborate judgment of our predecessors. 15 Md., 376 .

By that Act it was provided in general terms that it should be the duty of this Board of Police to prevent crime, arrest offenders, protect the rights of person and property, guard the public health, and preserve the public peace within the limits of the City of Baltimore. That part of the Act of 1867, which we have cited is but a legitimate extension of their powers granted for the purpose of attaining more effectually the same great objects, the prevention of crime, and the preservation of the public peace, and the only question we have now to decide is, does it authorize an order by the Board in the terms and to the effect of the one set out in this indictment? It has been argued that as the chief design of this clause of the Act was to prevent crime and preserve the public peace it should be construed as remedial statutes are construed. But it also contains penal provisions.

It makes acts done at certain times unlawful and criminal, which at other times are lawful and authorized. The selling of liquor in the City of Baltimore has not been prohibited by legislation nor declared unlawful, but on the contrary it is licensed and sanctioned by law. How if the summary and repressive measures which this section of the Act authorizes, do not, when considered in connection with its general purpose, require it should receive the strict construction which the Courts apply to penal statutes, it is safe to say they impose upon it the construction which belongs to like grants of legislative ²⁹⁸ power to municipal corporations, and that the validity of this order is to be determined by the same rules by which the validity of municipal ordinances passed under such grants are determined. And in respect to these the Courts adopt a strict rather than a liberal construction.

Thus the Supreme Court in Minturn vs. Larue, 28 How., 436 , have said, “it is a well settled rule of construction of grants by the Legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the Act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the Legistature must be resolved in favor of the public. This principle has been so often applied in the construction of corporate powers, that we need' not stop to refer to