Mason v. City of Cumberland

• Decision Date: 18 January 1901
• Parties: MASON v. MAYOR, ETC., OF CITY OF CUMBERLAND.
• Court: Maryland Court of Appeals

48 A. 136

92 Md. 451

MASON v. MAYOR, ETC., OF CITY OF CUMBERLAND.

Court of Appeals of Maryland

January 18, 1901

Appeal from circuit court, Allegany county.

Action by Joseph E. Mason against the mayor and city council of Cumberland to restrain defendant from enforcing a street license ordinance, and to have the ordinance declared void. From a decree refusing the injunction and dismissing the bill, plaintiff appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PAGE, PEARCE SCHMUCKER, and JONES, JJ.

Ferdinand Williams, Finley C. Henderson, De Warren H. Reynolds, and Benj. A. Richmond, for appellant.

Albert A. Doub, for appellee.

JONES J.

This is an appeal from the circuit court for Allegany county, in equity, and from an order of that court refusing an injunction, and dismissing the bill of the appellant filed by him, asking the injunction to restrain the mayor and city council of Cumberland from enforcing against him one of the ordinances of the said corporation, and to have the said ordinance declared void.

The ordinance sought to be enjoined and nullified was passed in pursuance of the powers conferred upon the said corporation by Acts 1898, c. 158, which, among other powers conferred authorized the corporation "to license, tax and regulate wheeled vehicles, provided that the funds derived from all license shall be applied only to the maintenance and repair of streets and alleys." Authority was also given the corporation "to levy and collect a tax on the assessable property of said city for the general purposes of said corporation, not exceeding in any one year fifty cents on each hundred dollars worth of said assessable property," and "to levy and collect such a tax on the assessable property of said city as may be necessary to pay the interest on the city bonds, and to provide a sinking fund for the redemption thereof at maturity."

The ordinance which is attacked in this proceeding appears in the City Code of Cumberland under the head of "License," and provides, among other things, that "it shall be unlawful for any person, persons, company or corporation to drive or use over the streets, lanes or alleys in said city any carriage, buggy, trap, wagon automobile or other vehicle of any kind or description for pleasure, or for the transportation of passengers, or for the hauling of goods, wares and merchandise, or for use in any business of any kind or description, provided that the funds derived from the licenses for the same shall be applied only to the maintenance of streets and alleys; or to peddle any goods, wares or merchandise whatsoever by wholesale or retail in or along the streets or alleys of said city,"--following this last language with a description or definition of who should be deemed a "peddler," and with the proviso "that this section shall not apply to drummers selling goods by sample to resident merchants, nor to farmers selling or offering for sale the products of their own farms,"--or "to drive or use over the streets, lanes or alleys in said city any milk wagon," etc., "without first having obtained a license therefor from the city clerk, as hereinafter provided." The ordinance then proceeds to fix and prescribe the rates or charges for the various licenses required thereby to be taken out, and among them the license fixed "for each one-horse wagon" is $2.50. The appellant's bill alleges that he is a citizen of Allegany county, owning and operating a large farm beyond the limits of said city, and that in pursuance of his business of selling his "farm products in Cumberland" he "was driving with a wheeled vehicle" over a named street in said city, "and while so driving said vehicle, which was a one-horse wagon loaded exclusively with the products of said farm, and having no license from the city of Cumberland," he was arrested and taken into custody, and before a justice of the peace, and tried and fined under a charge of violating the ordinance aforesaid by so driving upon the streets of said city without having a license as prescribed by said ordinance. Against threatened repetition of this interference with his driving upon the streets of the city of Cumberland, as described, without first taking out a license as the ordinance, which has been recited, requires, he asks the injunction, and as reason therefor alleges that the said ordinance "is null and void," and that the said corporation "has no lawful right to pass or enforce the same, and that said ordinance is not in pursuance of the defendant's charter, and that such exercise of power is against the bill of rights and constitution of Maryland."

This last-mentioned allegation states the main proposition to be passed upon here. There are other allegations in the bill besides those recited, but all that could raise any questions for consideration were denied in the defendant's answer, and no stress seems to have been laid upon them, and no proof was offered in regard to them. The proof is contained in an agreed statement of facts to the effect that at the time the appellant was arrested he was driving a milk wagon, in which he had nothing but milk from his dairy, which he was selling to his customers in said city, which milk came from cows kept on his farm; that the city of Cumberland is the only practical market for his farm products, and that to get to the next market, some 15 miles distant from his farm, he would have to pass over the streets of Cumberland, but no effort has been made to enforce the aforesaid ordinance against persons merely passing or driving through said city to other points beyond the city limits, or against persons who do not habitually drive over said streets; that he was arrested as alleged in his bill, and that at the time of his arrest he had no license from the city of Cumberland and no tag affixed to his wagon.

It appears from this state of allegation and proof that the appellant falls directly within one of the classes of persons required by the ordinance in question to take out a license according to its reading, unless he is excepted from its operation by the proviso that has been quoted in connection with the provision of the ordinance requiring a license for peddlers. It seems obvious, however, that this proviso, from its position in the ordinance and the connection in which it occurs, was only meant, in so far as it relates to farmers to provide they should not, under the circumstances mentioned therein, be considered within the class of those denominated "peddlers," and to be required to take out a license in...