Levering v. Bd. of Sup'fs of Elections of Baltimore City

• Decision Date: 02 December 1920
• Docket Number: No. 54.,54.
• Citation: 112 A. 301
• Parties: LEVERING et al. v. BOARD OF SUP'RS OF ELECTIONS OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

112 A. 301

LEVERING et al.

v. BOARD OF SUP'RS OF ELECTIONS OF BALTIMORE CITY.

No. 54.

Court of Appeals of Maryland.

Dec. 2, 1920.

Appeal from Superior Court of Baltimore City; Morris A. Soper, Judge.

"To be officially reported."

Proceeding in mandamus by Joshua Levering and others, constituting a Committee of the Lord's Day Alliance, a body corporate, etc., to compel the Board of Supervisors of Elections of Baltimore City to omit a certain question from the official ballot. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS and OFFUTT, J.

Isaac Lobe Straus, of Baltimore, for appellants.

Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen., on the brief), for Board of Sup'rs of Elections of Baltimore City.

Joseph C. France and Alfred S. Niles, both of Baltimore (H. Webster Smith, of Baltimore, on the brief), for Charles E. Whitehurst and others.

STOCKBRIDGE, J. On the day following the argument of this case there was handed down a per curiam opinion, in the following language:

"Without now referring to other questions involved in the appeal in this case, the court being of the opinion that the Act of 1920, chapter 522, deals with the repeal, re-enactment, and amendment of a public general law of the state, and that the question of the repeal, re-enactment, and amendment of a public general law is not susceptible of being subjected to the referendum proposed by this act, it is ordered by the Court of Appeals of Maryland this 15th day of October, 1920, that the judgment of the superior court of Baltimore City in this case be reversed and that the case be remanded to the end that the writ of mandamus be issued as prayed.

"An opinion will be hereafter filed stating the grounds of the court's conclusion."

This course was rendered necessary by reason of the urgent need for action in connection with the then approaching election.

There were a number of questions argued before the court, and elaborately set out in the briefs of the counsel for the appellant, and the Attorney General on behalf of the appellee. It is not necessary to discuss in this opinion all of the points urged upon the court, and this is not for the reason that they are not of importance, but because, however important they may be, there are other matters of still greater moment upon which the decision of the case turns, and which of necessity are controlling.

The first questions which arise relate to matters of practice in mandamus cases. The suit was instituted in the superior court of Baltimore City, asking that court by an issuance of the writ of mandamus to command the supervisors of elections of Baltimore City to omit from the official ballot, to be voted on at the November elections of 1920, a submission to the people of Baltimore City of the question whether moving picture shows, whether with or without a charge for admission, might or might not be exhibited after the hour of 2 p. m. on Sundays; the submission to the voters of the city being claimed to result from the terms of Act of 1920, chapter 522. That act reads, in full, as follows:

"An act to repeal and re-enact, with amendments, article 27, sections 436 and 438 of Bagby's Code of 1914, entitled 'Crimes and Punishments,' subtitle, 'Sabbath Breaking,' and providing additional license fees for Sunday exhibitions of motion pictures in Baltimore City, with or without charge or admission fee. "Section 1. By it Enacted by the General Assembly of Maryland, that article 27, sections 436 and 438 of the Public General Laws of Maryland, as codified in Bagby's Code of 1914, entitled, 'Crimes and Punishments.' subtitle, 'Sabbath Breaking,' be and the same are hereby repealed and re-enacted so as to read as follows:

"436. No person whatsoever shall work or do any bodily labor on the Lord's Day, commonly called Sunday; and no person bavins children or servants shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord's Day (works of necessity and charity always excepted), nor shall suffer or permit any children or servants to profane the Lord's Day by gaming, fishing, fowling, hunting or unlawful pastime or recreation; 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; provided, however, that nothing contained in this section shall be construed as to declare unlawful the exhibition of motion pictures after two o'clock p. m. on Sunday in Baltimore City, with or without a charge or an admission fee, where the exhibitors thereof have complied with the provisions of article 27, section 438 of the Public General Laws of Maryland, as amended by this act.

"438. It shall not be lawful to keep open or use any dancing saloon, opera house, tenpin alley, barber shop or ball alley within this state on the Sabbath Day, commonly called Sunday; and any person or persons or body politic or corporate, who shall violate any provision of this section, or cause or knowingly permit the same to be violated by a person or persons in his, her or its employ shall be liable 'to indictment in any court of this state having criminal jurisdiction, and upon conviction thereof shall be fined a sum not less than fifty dollars nor more than one hundred dollars, in the discretion of the court, for the first offense; and if convicted a second time for a violation of this section, the person or persons, or body politic or corporate shall be fined a sum not less than one hundred nor more than five hundred dollars; and, if a natural person, shall be imprisoned not less than ten nor more than thirty days in the discretion of the court; and in the case of any conviction or convictions under this section subsequent to the second; such person or persons, body politic or corporate shall be fined on each occasion at least double that imposed upon him, her, them or it on the last preceding conviction; and, if a natural person, shall be imprisoned not less than thirty nor more than sixty days in the discretion of the court; all fines to be imposed under this section shall be paid to the state. Provided that in addition to such license fees as may not be payable therefor before any such exhibition shall be given in Baltimore City there shall be paid the clerk of the court, * » * the following license fees, to wit: There shall be charged for each year a minimum license fee of §100 for any moving picture house with a seating capacity of one hundred people or less and an additional license fee of $1.00 per seat for each and every seat within any such moving picture house having over one hundred seats, up to and including fifteen hundred seating capacity and no more. And, provided further, that the price or charge for admission shall on no occasion, performance or showing of a moving picture be a greater charge on Sunday than that made for admission on week days.

"Sec. 2. And be it further enacted, that this act shall, at the general election to be held on the Tuesday after the first Monday of November, 1920, be submitted to the legal and qualified voters of the city of Baltimore for their approval or rejection.

"The supervisors of elections of the city of Baltimore shall have printed upon the ballots to be used at the said election in November, 1920, the following proposition:

"Shall the present laws be amended to permit motion pictures on Sunday?

"After this there shall be printed on the ballot the following:

"For Motion Pictures on Sunday.

"Against Motion Pictures on Sunday.

"The supervisors of elections of the city of Baltimore shall canvass the returns and certify the number of votes cast for and against amending the Sunday laws in like manner as other election returns. If a majority of the votes east in the city of Baltimore is against amending the Sunday laws, then the present laws relating to Sunday observance in so far as they might prohibit the exhibition of motion pictures shall continue in full force in said city. If a majority of the votes cast in the city of Baltimore is in favor of amending the Sunday laws as provided in this act. then this act shall become effective from said date in said city, it being the purpose of this act to give the voters of the city of Baltimore the right to determine whether the present Sunday laws shall continue in force or whether they shall be amended as provided in this act.

"Approved April 16, 1920."

The position and argument of the Attorney General representing the appellee was that the remedy sought to be obtained was one which, if available at all, could only be had by a bill in equity asking for an injunction; second, that the defendant named in the petition was the board of supervisors of election of ...