Levering v. Williams

• Decision Date: 13 February 1919
• Docket Number: 86.
• Parties: LEVERING et al. v. WILLIAMS et al., Board of Park Com'rs.
• Court: Maryland Court of Appeals

106 A. 176

134 Md. 48

LEVERING et al. v. WILLIAMS et al., Board of Park Com'rs.

No. 86.

Court of Appeals of Maryland

February 13, 1919

Appeal from Superior Court of Baltimore City; Walter I. Dawkins Judge.

"To be officially reported."

Mandamus proceedings by Joshua Levering and others against George Weems Williams and others, constituting the Board of Park Commissioners. From an order overruling petitioners' demurrer and a judgment in favor of defendants, petitioners appeal. Reversed and remanded.

Argued before BOYD, C.J., and BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Isaac Lobe Straus, of Baltimore, for appellants.

George R. Gaither and Oscar Leser, both of Baltimore (Robert F Leach, Jr., Asst. City Solicitor, and Eli Frank, both of Baltimore, on the brief), for appellees.

THOMAS J.

On the 25th of May, 1918, the mayor and city council of Baltimore passed the following ordinance, known as Ordinance No. 353 and entitled:

"An ordinance to repeal and reordain with amendments section 3 of article 31 of the Baltimore City Code, title 'Sabbath.'

Section 1. Be it ordained by the mayor and city council of Baltimore, that section 3 of article 31 of the Baltimore City Code, title 'Sabbath,' be and the same is hereby repealed and reordained so as to read as follows:

Sec. 3. (A) Every person who shall fish or hunt or who shall play ball or any other game whatsoever on the Sabbath day commonly called Sunday, within the limits of Baltimore city, except as hereinafter authorized, shall for each offense pay a fine of one dollar; and every ordinary or public garden keeper who shall suffer or allow in or upon his premises any kind of gaming or sport on the Sabbath day, shall for every individual so permitted to offend, pay ten dollars.

(B) Nothing in this ordinance, however, shall be construed as prohibiting or penalizing the playing in the public parks, private parks on the grounds of organized or incorporated clubs and on open lots on Sunday of the games, of baseball, golf, lawn tennis, croquet, basketball, football, lacrosse, quoits, soccer and field and track exercises; provided that any of the games enumerated in this paragraph (B) are played on Sunday between the hours of 2 p. m. and 7 p. m.; and provided further that such games are played in neighborhoods where they shall not cause a disturbance of the public peace; and provided that such games shall not be played within one hundred (100) yards of any place of worship where services are being held; and provided further that no admission fee whatsoever to such games shall be charged.

In the event a person violates any of the aforesaid provisions of this paragraph (B) he shall be deemed guilty of a misdemeanor, and for each and every offense thereof, he shall be subject to a fine of from five to five hundred dollars, the said fine to be collected as other fines are.

(C) And nothing in this ordinance shall be construed as prohibiting or penalizing the playing of any games of golf, lawn tennis, croquet or quoits at any time on Sunday, provided such games be played on private grounds with the consent of the owner or custodian of such grounds, and for exercise or recreation only, and that not more than four persons play together in such game, and that such game be not played within one hundred yards of any place of worship where services are being held, and be not so played as to cause a disturbance of the public peace, and that no person who may be permitted to see such a game be charged any fee for such privilege; the meaning of the words 'private grounds,' as herein used, being grounds which are privately owned as distinguished from grounds which are publicly owned or which have been dedicated to public use.

Section 2. And be it further ordained, that this ordinance shall take effect from the date of its passage."

Thereafter, on the 30th of May, 1918, the board of park commissioners of Baltimore city passed the following resolution or regulation in reference to the playing of athletic games in the public parks of Baltimore city on Sunday:

"Resolved, that such athletic games as are permitted to be played in the public parks of Baltimore city on week days, shall be permitted to be played on Sundays between the hours of 2 and 7 p. m."

On the 1st of June, 1918, Joshua Levering, John T. Stone, and Rev. William W. Davis, constituting a committee of the Lord's Day Alliance, a body corporate, and as individuals and taxpayers of Baltimore city, together with several other taxpayers of Baltimore city, filed a petition in the superior court of Baltimore city against George Weems Williams, George Washington Williams, J. Cookman Boyd, and Edward Hanlon, constituting the board of park commissioners of Baltimore city, alleging, among other things, that said ordinance and resolution are illegal and void because they contravene the "general laws of the state of Maryland relating to the observance of the Lord's Day commonly called Sunday, as a day of rest and worship," as codified in article 27, §§ 436-438, of Bagby's Code of Public General Laws of Maryland, and praying for a writ of mandamus "directed to" the said board of park commissioners, and each of the members thereof, "preventing and restraining them and it from giving effect to, permitting, or directing the carrying out, execution, or effectuation of said alleged Ordinance No. 353 aforesaid, and said resolution, order, and regulation in said parks of Baltimore city upon or during the Sabbath day or Lord's Day, commonly called Sunday, at any time hereafter, and preventing and restraining them from permitting, authorizing, or directing the holding, carrying on, or taking place of any of the said games, sports, and athletic contests and exercises, aforesaid, in said parks on the Sabbath day or the Lord's Day, commonly called Sunday, at any time hereafter, and commanding and requiring them fully and in all respects to observe, abide by, and give effect to the said sections 436-438 of article 27 of the Annotated Code of Maryland of 1914 edited by George T. Bagby, Esq., in said parks upon said Sabbath day or Lord's Day, hereafter, without regard to the provisions of said alleged Ordinance No. 353 or any of the provisions thereof, and ordering such other and further relief as may be proper in the premises."

The defendants answered the petition, admitting the passage of said ordinance and resolution, and alleging that the ordinance and resolution are valid, and that the games and privileges thereby permitted "will not in any manner interfere with the proper observance of Sunday as a day of rest and worship."

The petitioners demurred to the answer, and this appeal is from the order of the court below overruling the demurrer, and from the judgment in favor of the defendants.

There is no provision in the charter expressly authorizing the mayor and city council of Baltimore to pass the ordinance in question, but section 6 of the charter (Act of 1898, c. 123) declares that the mayor and city council of Baltimore shall "have and exercise within the limits of the city of Baltimore all the power commonly known as the police power to the same extent as the state has or could exercise said power within said limits." In the case of Rossberg v. State, 111 Md. 394, 74 A. 581, 134 Am. St. Rep. 626, Judge Pearce, speaking for this court, after referring to the broad and comprehensive police powers conferred upon the city, and dealing with the contention of the appellant that the ordinance in question in that case was invalid because it was inconsistent with the law of the state, said:

"But all the text-writers already cited herein unite in declaring that further and additional penalties may be imposed by ordinance, without creating inconsistency. The true doctrine, in our opinion, is concisely stated in 28 Cyc. 701, as follows: 'Such ordinances must not directly or indirectly contravene the general law. Hence ordinances which assume directly or indirectly to permit acts or occupations which the state statutes prohibit, or to prohibit acts permitted by statute or Constitution, are under the familiar rule for validity of ordinances uniformly declared to be null and void. Additional regulation by the ordinance does not render it void."'

In Hiller v. State, 124 Md. 385, 92 A. 842, Judge Burke said that the ordinance then in force in Baltimore city, and which prohibited the playing of baseball on Sunday, "was passed *** in the legitimate exercise of the police power," conferred upon the city, and it follows, under the rule clearly and explicitly stated in Rossberg v. State, supra, that, if the ordinance now in question "assumes directly or indirectly to permit acts or occupations which" the statutes of this state prohibit, it is null and void.

And in passing upon the validity of the ordinance we are to be controlled by what acts may be done under its authority. In the case of Ulman v. Baltimore, 72 Md. 587, 20 A. 141, 11 L. R. A. 224, the court said: "It matters not, upon the question of the constitutionality of such a law, that the assessment has in fact been fairly apportioned. The constitutional validity of law is to be tested, not by what has been done under it, but by what may by its authority be done," and the same tests must be applied to ordinances. Hagerstown v. B. & O. R. R. Co., 107 Md. 178, 68 A. 490, 126 Am. St. Rep. 382; Curtis v. Mactier, 115 Md. 386, 80 A. 1066; and Johns Hopkins Bldg. Co. v. Balto., 130 Md. 286, 100 A. 298.

Section 436 of article 27 of Bagby's Code of the Public General Laws of the State (volume 3) declares that- "No person whatsoever shall work or do any bodily labor on the Lord's Day, commonly called Sunday; and no person having children or servants shall command, or wittingly or willingly...