Hiller v. State
| Citation | 92 A. 842,124 Md. 385 |
| Decision Date | 04 December 1914 |
| Docket Number | 46. |
| Parties | HILLER v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; Charles W. Heuisler Judge.
"To be officially reported."
William H. Hiller was convicted of violating an ordinance of the City of Baltimore, and he appeals. Affirmed.
Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
William C. Coleman, of Baltimore (Eugene O'Dunne, Wilson J Carroll, and John E. Semmes, Jr., all of Baltimore, on the brief), for appellant.
Roland R. Marchant, Deputy State's Atty., of Baltimore (Edgar Allan Poe, Atty. Gen., and Wm. F. Broening, State's Atty., and Harry W. Nice, Asst. State's Atty., both of Baltimore, on the brief), for the State.
In the year 1827 the mayor and city council of Baltimore passed the following ordinance:
"Any person who shall fish, hunt, pitch quoits, or money, fly a kite, play bandy or ball, or any other game or sport upon the Sabbath day within the limits of the city shall for each offense pay a fine of one dollar; and any ordinary or public garden keeper who shall suffer or allow in or upon his premises any kind of game or sport on the Sabbath day shall for every individual so permitted to offend shall pay ten dollars."
The ordinance has ever since remained in force and effect. By the act of 1898 (chapter 123), known as the city charter, it was provided by section 906, subsec. 3, as follows:
"And be it further enacted, that all laws now in force relating or applicable to the mayor and city council of Baltimore or the city of Baltimore, and not included in this act, and not inconsistent with said act, and all ordinances of the mayor and city council of Baltimore now in force and not inconsistent with this act, shall be and they are hereby continued until changed or repealed, respectively, by the General Assembly of Maryland or the mayor and city council of Baltimore," etc.
By express legislative provision of the act this ordinance was continued in force until changed or repealed. The appellant was indicted, tried, convicted, and sentenced in the criminal court of Baltimore for a violation of the ordinance, and from the judgment entered against him he has prosecuted this appeal. The indictment contained four counts, each of which, in varying forms of expression, charged him with playing baseball on Sunday, June 14, 1914, in the city of Baltimore. He demurred to the indictment and to each count thereof. The demurrer was overruled. Thereupon the appellant filed the following special plea:
"That to the north of the city of Baltimore, but within the limits thereof, is a large natural park known as Druid Hill Park, consisting of about 100 acres or more; that in the seclusion of the natural forest of said park, out of sight of all dwelling houses in said city, and remote from the drives and walks in said park, this defendant on the afternoon of said June 14, 1914, the said day being Sunday, did participate with divers other persons in a certain form of outdoor exercise and recreation in the American game of ball commonly called 'baseball'; that the same was played purely voluntarily by all of the persons participating therein, without reward and not for hire, without any charge or admission thereto being charged, exacted, or accepted, nor was there any gratuity offered, given, or accepted by any one in connection therewith, directly or indirectly; that same recreation exercise and game was indulged in by this defendant in a quiet, peaceable manner, without noise or conduct in the disturbance of the public peace, all of which the defendant stands ready to verify."
A demurrer to this plea interposed by the state was sustained. The case then proceeded to trial under the plea of not guilty and resulted in a verdict of guilty, and the appellant was adjudged to pay a fine of $1 and costs.
The position of the appellant is that the ordinance is unconstitutional and void, first, because it is repugnant to section 1 of the fourteenth amendment of the Constitution of the United States; and, secondly, because it is in violation of article 36 of the Declaration of Rights of this state. This article is a guaranty of religious liberty to the inhabitants of Maryland. The provisions of this article and those of the federal Constitution are so familiar that they need not be here transcribed.
It is important to note the precise legal question presented by the record. It is not whether the ordinance ought to have been passed or ought to be repealed or amended--not whether it is desirable and conducive to the best interests of the people to permit sports of this character, under proper regulation, to be indulged in on Sunday. These are purely political questions which must be determined by that department to which, under our system of government, they are exclusively committed. They are questions of public policy with which this court has nothing to do, and without expressing any opinion upon the wisdom, or the policy of the ordinance, or the propriety of its repeal or amendment, to strike it down for any of the reasons we have mentioned would be rank judicial usurpation.
The court will not declare an act or an ordinance unconstitutional merely because it may think it unwise or inexpedient, nor will it strike it down because it will operate harshly upon persons affected by it. It cannot be declared void upon constitutional grounds, unless it plainly contravenes some provision of the Constitution.
Nor are we called upon to decide in a general way what amusements, or games, or recreations the people of Baltimore may indulge in on Sunday without violating the terms of this ordinance. The terms of the ordinance are sufficiently broad and comprehensive to include the playing of baseball on Sunday in the city of Baltimore, whether it is played under the circumstances stated in the special plea or not. The appellant confessedly did violate the provisions of the ordinance, and the sole question for decision is this: Is the ordinance, in so far as it prohibits the playing of baseball on Sunday in the city of Baltimore, valid?
It is now generally held that laws and ordinances of this character are passed in the exercise of the police power, and it must be admitted that the state and the city have the power to pass all proper laws and regulations of this nature. The ordinance was enacted by the mayor and city council of Baltimore, and it has been expressly approved and continued in force by the act of 1898 (chapter 123), and, if it was passed or ratified in the proper exercise of the police power, it is not obnoxious either to the thirty-sixth article of the Declaration of Rights or to the fourteenth amendment of the Constitution of the United States.
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