Waam, Inc. v. Ober

Henderson, J., delivered the opinion of the Court. The appeal in this case is from a decree of the Circuit Court of Baltimore City sustaining a demurrer to a bill for an injunction, without leave to amend, and dismissing the bill. The bill was filed on December 7, 1951 by WAAM, Inc., a Maryland corporation engaged in the business of television broadcasting, and alleged that the respondent was unlawfully interfering with its business by threatening to arrest a customer, Custom Upholstering and Carpet Company, on a charge of violating the Sunday ordinance, Section 74, Article 24, Baltimore'City Code (1950 ed.). The bill alleged that the complainant had entered into a contract, filed as an exhibit, with “A. W. & L. Adv.”, an advertising agency, representing its advertiser “Custom”, for a television program of one hour, on Sundays at 1:30 P. M., for thirteen successive Sundays beginning November 4, 1951 and ending January 27, 1952.

The contract contained a clause reading: “Client reserves right to cancel with two weeks written notice after telecast of November 11, 1951.” The price of each broadcast was fixed at $625. The advertising feature of the program was described as follows: “Announcement is made, in the course of the program, to call Lexington 1400 to make an appointment to see a decorator of your Orator’s customer, who will give a free'estimate in the home of the person calling, at his convenience, on reupholstering and made-to-order slip covers. The statement is made that the person calling will be under no obligation and that your Orator’s customer will arrange very liberal terms; that the first payment.will not start until next February; that your Orator’s customer’s reupholstering will save the person ²⁰⁵ calling at least one-half the cost of new furniture of comparable beauty.” The bill further alleged that Custom “has refused and intends to refuse to carry out its contract with your Orator as a result of the alleged actions of the defendant”. The appellant states in its brief that the last broadcast was made on December 9, 1951, and discontinued thereafter pending appeal.

The bill alleged that the program did not “involve either the sale, disposition of, barter, or dealing in, or giving away, any articles of merchandise on Sunday”, in violation of the ordinance, that if the ordinance were so construed, it is “unconstitutional, null and void”, and that the complainant “has no plain, complete and adequate remedy at law”. The appellee urges that we take judicial notice of the fact that “Lexington 1400” is listed in the telephone directory as the number of the store operated by Custom Upholstering and Carpet Company. He does not suggest that advertising on Sunday is unlawful per se, but argues that the program contemplates that calls for appointments be made to the store on Sunday pursuant to the broadcast, that this requires an employee to be on duty at the store, and that the activity amounts to “dealing in” articles of merchandise on Sunday. We find it unnecessary to pass upon this question and express no opinion thereon.

While the Chancellor did not file an opinion, he evidently acted upon the grounds set up in the demurrer that the complainant had no standing to sue and had an adequate remedy at law. We do not reach the questions of construction or constitutionality until the preliminary question is disposed of. The general rule is that equity will not interfere to prevent the enforcement of a criminal statute, even though unconstitutional. Hammond v. Lancaster, 194 Md. 462, 473-474 , 71 A. 2d 474, 479 ; Hitchcock v. Kloman, 196 Md. 351, 356 , 76 A. 2d 582, 584 .

There is a well-established exception to the rule, however, where the threatened prosecution affects property rights and will result in irreparable injury. 1 High (4th ed.), In june ²⁰⁶ tions §.68; Clark v. Harford Agricultural & Breeders’ Association, 118 Md. 608 , 85 A. 503 ; Mogul v. Gaither, 142 Md. 380 , 121 A. 32 ; Spann v. Gaither, 152 Md. 1 ; Crider v. Cullen, 191 Md. 723 , 63 A. 2d 618 . In the Crider case the court assumed the standing to sue and sustained the dismissal of the bill on the merits. In the Spann case the complainant had been subjected to repeated arrests and the Police Commissioner had refused to suspend arrests pending the decision of a test case, so that no other remedy was available'. It was also shown that the complainant would have been required to shut down his business completely and would suffer irreparable injury.

In all of these cases the suit was brought by the person threatened with arrest. In the instant case the complainant is not threatened with arrest, and the person threatened is not a party to the proceeding.