Givner v. State

• Decision Date: 12 July 1956
• Docket Number: No. 162,162
• Citation: 210 Md. 484,124 A.2d 764
• Parties: Abraham GIVNER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 484

210 Md. 484

124 A.2d 764

Abraham GIVNER v. STATE of Maryland.

No. 162.

Court of Appeals of Maryland.

July 12, 1956.

Eugene Hettleman, Baltimore, for appellant.

James H. Norris, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro State's Atty., and James O'C. Gentry, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The appellant was tried in the Criminal Court of Baltimore by the Court, sitting without a jury, and was found guilty of violating three provisions of the Baltimore City Code relating to inspections of buildings. He was fined $50 and costs, but the sentence was suspended (in accordance with the recommendation of the prosecuting attorney). Notwithstanding the suspension of sentence, this appeal is authorized. Code 1951, Article 27, Section 725; Hite v. State, 198 Md. 602, 84 A.2d 899.

The first count of the indictment charged violation of Article 12, Section 120 of the Baltimore City Code, 1950 Edition (referred to below as the 'City Code'). This Article is entitled 'Health.' The sub-title under which Section 120 is codified is 'Nuisances and the Prevention of Disease,' and Section 120 itself is under the sub-heading 'Removal of Nuisance.' This Section reads as follows:

'120. Whenever the Commissioner of Health shall have cause to suspect that a nuisance exists in any house, cellar or enclosure, he may demand entry therein in the day time, and if the owner or occupier shall refuse or delay to open the same and admit a free examination, he shall forfeit and pay for every such refusal the sum of Twenty Dollars.'

The second count alleged violation of Article 5, Section 120, Chapter 12, Paragraph 1202 of the City Code. This provision is contained in that portion of the City Code which is known as the Building Code. It reads as follows (the Commissioner therein referred to being the Building Inspection Engineer):

'1202. The Commissioner or his authorized representative, upon exhibiting the proper credentials or proof of identity, if necessary, shall have the right to enter any building, structure or premises at any time during daylight hours, or at such other times as may be necessary in an emergency resulting from or arising out of any cause that endangers or tends to endanger the public health or safety, for the purpose of performing his duties under this Code or enforcing the provisions of this Code.'

The third count charges violation of Article 9, Section 26C of the City Code. That Section constitutes a part of the Fire Prevention Code. It reads as follows:

'C. Right of Entry. The Chief Engineer of the Fire Department or his authorized representatives when in uniform and upon exhibiting the proper credentials or proof of identity, if necessary, shall have the right to enter any building, structure or premises, except private residences, at any time during business or operating hours, or at such other times as may be necessary in an emergency resulting from or arising out of any causes that endangers or tend to endanger the public health or safety, for the purpose of performing his duties under this Fire Prevention Code, or enforcing the provisions of this Fire Prevention Code.'

On the morning of February 1, 1955, representatives of the Commissioner of Health, of the Buildings Inspection Engineer and of the Chief Engineer of the Fire Department, accompanied by an Electrical Inspector and by a uniformed member of the Police Department assigned to work with the Health Department, visited the premises known as No. 1735 Linden Avenue for the purpose of making inspections in accordance with provisions of the Health laws, the Building Code and the Fire Prevention Code. The premises are owned by the appellant. The building consists of three floors and a basement. There are apartments on the second and third floors, which were then rented to and occupied by tenants of Givner, and the first floor and basement were occupied by Givner and his wife as their residence. The inspectors were permitted by the tenants to examine the second floor apartment, where some defective electrical fixtures were observed; and they also found the wooden porch on that floor, which is said to serve as a fire escape, to be in need of some minor repairs. It seems that on this occasion the inspectors did not examine the third floor because the tenants were not at home.

The inspectors rang the door bell of the first floor apartment, and the door was opened by Mrs. Givner. They requested permission to enter, and she referred them to her husband, who was not then on the premises. The police officer had worked in the neighborhood for a year and was acquainted with the Givners. He then went to Mr. Givner's office and asked him to come to the Linden Avenue property to talk with the inspectors, and Mr. Givner did so ('gladly', the police officer says). The conversation between Mr. Givner and the inspectors took place on the sidewalk outside of No. 1735. Each of the inspectors asked permission to enter the first floor and basement, and Mr. Givner refused each request. He gave no reason for his refusal. These proceedings were initiated promptly thereafter.

At the trial in the Criminal Court Givner testified that his refusal was based upon the then pendency of a suit for a declaratory judgment which he had filed. In it he sought a determination as to what municipal personnel, if any, might go upon his premises for purposes of inspection, the circumstances under which they might enter, and whether or not he could be required to accompany the inspectors and to open any locked rooms. He also sought an injunction, both pendente lite and permanent, against the Building Inspection Engineer and the City of Baltimore, and their agents, from entering the three buildings mentioned in the suit without the consent of the occupants. He contended that the proposed or threatened inspections, without either permission or a search warrant, and without any cause or reason for such inspections being shown, constituted a violation of his constitutional rights against 'unlawful' searches and seizures and also constituted a trespass and a wrongful taking of his property. The trial court dismissed the bill on the merits, holding in a memorandum opinion that there was nothing in the record to show any unreasonable search of property occupied by the complainant in violation of his constitutional rights and that the inspections complained of were necessary for the protection of the public health. See Givner v. Cohen, 208 Md. 23, 116 A.2d 357. The appellant undertook in this court (and we may suppose in the trial court also) to attack the same three municipal ordinances which he attacks in the present case. He did not, however, mention any one of them in his bill, nor did he make any of them a part of the record. The defendants cited one of them in their answer (as well as some other ordinances); but two of the three under attack were not properly brought before us and, furthermore, the complainant did not follow the prescribed declaratory judgment procedure with regard to notifying the Attorney General of an attack on the constitutionality of any of the ordinances. In addition, the facts of the case were very scanty, since the complainant elected to set the case for hearing on bill and answer. Because of the above deficiencies and the paucity of the facts and because of a reluctance to decide constitutional questions in the abstract, we thought the case was not ripe for a declaratory decree and affirmed the decree dismissing the bill.

In the instant case the appellant again assails the same three ordinances. By stipulation, Articles 5, 9 and 12 of the City Code and all ordinances contained therein are made a part of the record. These Articles include the ordinances under attack, which are those which we have quoted.

The appellant expressly waives all defenses on technical grounds which might be available to him. We take it that this waiver includes any objection to the third count of the indictment on the ground that the authority to inspect conferred under the Fire Prevention Code (Article 9, Section 26C) expressly excepts inspections of private residences. In connection with the construction of this ordinance we note that because of the definition of a private residence contained in Section 36 of that Article, which reads as follows: "Private residence' is a dwelling containing not more than one apartment, and which is occupied or intended to be occupied exclusively by one family and household help.' The appellant's property at 1735 Linden Avenue falls within the definition of a 'multiple dwelling' which is contained in the same Section. The Building Code (Article 5, Section 201) contains a definition of a private residence which is similar to that of the Fire Prevention Code, except that it applies to a dwelling containing not more than two apartments, instead of only one.

The appellant raised below the question as to whether or not his refusal of permission to enter the premises constituted a violation of the Sections of the Building Code and of the Fire Prevention Code involved in the second and third counts of the indictment. Since he is and was quite familiar with District of Columbia v. Little, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599, his waiver of this question in this Court is evidently made with full understanding and deliberation. We read the Sections of those Codes which are alleged to have been violated in conjunction with the definitions of violations contained respectively, in Section 190, Chapter 19, Paragraph 1901 of the Building Code and in Section 33, paragraph A of the Fire Prevention Code. These include in substantially identical terms any act or actions which are contrary to any provision or requirement of, and any and all failures to comply with, any provision or requirement of the...