Graham v. Gaither

• Decision Date: 25 January 1922
• Docket Number: No. 100.,100.
• Citation: 117 A. 858
• Parties: GRAHAM et al. v. GAITHER, Police Com'r.
• Court: Maryland Court of Appeals

117 A. 858

GRAHAM et al.

v. GAITHER, Police Com'r.

No. 100.

Court of Appeals of Maryland.

Jan. 25, 1922.

Appeal from Baltimore City Court; Walter I. Dawkins, Judge.

Proceeding by Robert L. Graham and others for a writ of mandamus to Charles D. Gaither, Police Commissioner for Baltimore City. From an order overruling a demurrer to respondent's answer and a judgment for defendant, plaintiffs appeal. Affirmed.

Argued before BOYD, C. J., and THOMAS, PATTISON, URNER, ADKINS, and OFFUT, JJ.

Isaac Lobe Straus, of Baltimore, for appellants.

Allan H. Fisher, Asst. Atty. Gen., and Alexander Armstrong, Atty. Gen., for appellee.

BOYD, C. J. This is an appeal from an order and judgment of the lower court which, overruled a demurrer to the answer of the respondent and entered a final judgment for the defendant on a petition for a mandamus filed by the appellants against Charles D. Gaither, police commissioner for the city of Baltimore. The object of the mandamus, as shown by the prayers of the petition, was to prevent and restrain the respondent from permitting the playing of professional baseball at Oriole Park on Sunday during the months of April, June, July, August, and September, 1921, to command and require him to enforce and execute the laws of Maryland relating to the observance of Sunday and against Sabbath breaking on those Sundays, and to enforce and execute section 436 of article 27 of the Code upon said days, to prevent at said Oriole Park the commission of the crime of violating said Sunday law "by arresting or causing the arrest of all the participants, including both the baseball players taking part in said professional games as well as the managers' holding or conducting the same, or causing the same to be held or conducted, or aiding or abetting the holding or conducting of the same, and further ordering and requiring such other relief and protection to your petitioners and their rights aforesaid as may be proper and necessary in the premises." After the court overruled the demurrer, and the attorneys for the plaintiffs informed the court that the plaintiffs declined to file any further pleading or proceeding, the judgment for the defendant was rendered.

The petition, after setting out and describing the several petitioners at length, alleges that the respondent was appointed under and by virtue of chapter 559 of the acts of 1920, which repealed and re-enacted section 740 of article 4 of the Code of Public Local Laws (reference being to the revised edition of the charter of 1915); the act of 1920 authorizing the appointment of one police commissioner instead of a board of police commissioners as formerly, and providing that he should have and exercise all the powers of the board. Section 744, which sets out at length the duties of the board of police commissioners, now devolved upon the respondent, will be published in connection with this opinion.¹ Amongst other things, he is required to see that all laws relating to the observance of Sunday are enforced. Section 436 of article 27 of the Code is set out in full in the petition, and reference is made to Levering v. Park Commissioners, 134 Md. 48, 106 Atl. 176, 4 A. L. R. 374, to show that this court has decided that the playing of baseball on Sunday by professionals and others who may be hired and paid for that purpose and whose occupation and employment is the playing of such games "clearly contravenes the provision of the Code which declares that 'no person whatsoever shall work or do any bodily labor on the Lord's Day, commonly called Sunday, * * * and every person transgressing this section and being thereof convicted before a justice of the peace shall forfeit five dollars to be applied to the use of the county.'"

It is alleged that at Oriole Park professional baseball games were about to be played on each and every recurring Sunday during the months named by professional players, hired and paid for that purpose, etc., in violation of section 436 of article 27, which will be and constitute upon each of said Sundays crimes against the laws and dignity, the peace and government of the state. It is' alleged that they will be attended by large crowds and throngs of spectators at Oriole Park, accompanied by the loud shouts and noises which invariably occur during the holding and progress of games of professional baseball. It is averred:

That the plaintiffs called with their counsel upon the respondent and informed him that such games were about to be played, and submitted to him that it is his official duty to prevent said crimes, arrest the offenders, and see that the laws relating to the observance of Sunday are enforced, etc.; "that thereupon, although the defendant heard and treated those of your petitioners and their counsel, who called upon and submitted the matters aforesaid to him, with the utmost courtesy and attention, nevertheless he clearly and positively declared that he did not consider it to be his official duty to interfere with the holding, playing, and carrying on of said professional baseball games by said professional players at said Oriole Park on said Sundays aforesaid, although said games are about to be held, played, and carried on, as hereinabove stated, and as represented to him, the defendant, and the defendant furthermore distinctly and positively declared that he did not intend to interfere with or prevent the holding of said professional baseball games as aforesaid, or to cause the same to be interfered with or prevented by the police force under his, the defendant's, direction and control, or to arrest or cause the arrest of any of the professional baseball players taking part in said games, or of any person or persons engaged and participating in the holding, playing, carrying on or conduct of the same, but that he, the defendant, intended to permit the said games to be held then and there, as aforesaid, without interference upon his part or upon the part of the police force under his, the defendant's, direction and control, and without arresting or causing the arrest of the participants in and the managers and directors of said games or any of them; the defendant, the police commissioner for Baltimore city, giving as his reason for declining to interfere with the holding, playing, and carrying on of said games or to arrest the professional participants therein or the managers thereof, or any of them, as aforesaid, that the manager of one of the professional baseball clubs or teams which participated in a game of professional baseball at said Oriole Park on one of the Sundays of the spring or summer of 1919 had been arrested for criminally violating the said Sunday Law of Maryland by the holding and carrying on of said Sunday professional baseball game at said Oriole Park, and that the indictment or charge against said offender had never been prosecuted in the criminal court of Baltimore city."

It is further alleged that the refusal of the respondent will cause additional municipal expenses to be incurred and will result in an unlawful and unauthorized Increase in the rate of taxation for local purposes in the city of Baltimore; that the petitioners will suffer irreparable and remediless injury and damage, and the public policy of the state and the laws thereof would be thwarted and nullified, and the community and public generally hurt and damaged, etc.

The answer admits that some of the petitioners called with their counsel upon the defendant, and requested the defendant to enforce the laws of Maryland relating to the observance of Sunday and to prevent the contemplated and intended playing of baseball on Sunday during the months named, but specifically denies each and every one of the charges against him set out above, emphatically and unreservedly. It will not be necessary for us to quote from the answer, but it is sufficient to say that they are not simply general denials, but each charge is denied, referring to the language used in the petition.

The answer further alleges "that he has fully and completely enforced the Sunday laws in Baltimore city to the best of his ability and judgment with the force at his disposal"; that he began his term of office on June 1, 1920, and on the 21st of that month he presented to the foreman of the grand jury for the May term of court charges against the president of the Baltimore Baseball & Exhibition Company for working and doing bodily labor on Sunday, June 20, 1920, at Oriole Park and allowing and ordering his employees to work and do bodily labor at the time and place mentioned in violation of the law, and also for selling certain goods, wares, and merchandise, to wit, score cards, entitling the holder to admission to the baseball game, to a large number of spectators, whose names and addresses were given to the grand jury, and also the names of a large number of witnesses and of all the players who took part in the game for both teams, and the names and addresses of each and every person who sold score cards and of all employes working on the ground. He was afterwards informed by the foreman that the grand jury declined to take any action, and practically the same thing was alleged as to the September term, grand jury.

The answer then alleges that there are several methods of bringing to the bar of justice violators of the law: (1) By summarily arresting them; (2) by causing warrants upon oath to be issued for the arrest of alleged offenders; (3) by referring the charges to the grand jury; that during his term of office he has avoided when possible the making of summary arrests, especially where the alleged offender is a citizen of Baltimore, and may be apprehended without difficulty; that he considered it a proper police method to avoid the taking of a citizen by force to the station house when such peremptory action can be avoided without injury to the state; that "your respondent further avers that the summary arrest frequently causes disorder, riot,...