Mayor & City Council of Havre De Grace v. Johnson

• Decision Date: 26 June 1923
• Docket Number: No. 36.,36.
• Citation: 123 A. 65
• Parties: MAYOR AND CITY COUNCIL OF HAVRE DE GRACE et al. v. JOHNSON.
• Court: Maryland Court of Appeals

123 A. 65

MAYOR AND CITY COUNCIL OF HAVREDE GRACE et al.

v. JOHNSON.

No. 36.

Court of Appeals of Maryland.

June 26, 1923.

Appeal from Circuit Court, Harford County, In Equity; Wm. H. Harlan, Judge.

"To be officially reported."

Suit by Luther W. Johnson against the Mayor and City Council of Havre de Grace and others, for an injunction restraining the enforcement of an ordinance. Decree for plaintiff, and defendants appeal. On motion to dissolve injunction. Affirmed.

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

Frederick Lee Cobourn, of Havre de Grace, for appellants.

R. H. Archer, Jr., of Bel Air, for appellee.

OFFUTT, J. The single question presented by this appeal is whether ordinance No. 298 of the city of Havre de Grace is a valid enactment.

The ordinance is entitled:

"An ordinance to regulate, control, and restrict the use of the streets, lanes, and alleys of the city of Havre de Grace by automobiles carrying passengers for hire,"

—and was approved on August 21, 1922. In part it provides:

"Section 1. Be it enacted and ordained by the mayor and city council of Havre de Grace, Maryland, that it shall be unlawful for any driver or operator of an automobile carrying passengers for hire (except as hereinafter provided), to solicit or accept passengers for transportation for hire on any of the streets, lanes and alleys of the city of Havre de Grace, except Union avenue and Revolution street west of Union avenue.

"Sec. 2. Be it further enacted and ordained that the provisions of this ordinance shall not apply to the operators or drivers of automobiles who are actual and bona fide residents of the city of Havre de Grace, and who have resided therein for a continuous period of six months."

The case was heard below on bill and answer on a motion to dissolve an injunction issued out of the circuit court for Harford county, and such facts as are before us are to be found therefore in the pleadings. From them it appears that the appellee is a resident of Baltimore city and a citizen of the state of Maryland, and is engaged in the business of operating automobiles for hire. He operated in 1922 three automobiles, for which he procured "hiring licenses" for which he was required to pay more than was required for a license authorizing the operation of a car for private use. Acting under "the rights and benefits" conferred by the "hiring licenses" on September 14, 1922, he accepted passengers for hire in the city of Havre de Grace, and was in consequence arrested and tried, convicted, and fined $20 before a magistrate on the charge of violating Ordinance 298 of the mayor and city council of Havre de Grace. He prayed an appeal from that judgment to the circuit court for Harford county, but as under the rules of that court the appeal would not be heard until November, 1922, the complainant would have been prevented from operating his cars until that time, because the defendants threatened to arrest him whenever he accepted or solicited passengers within the limits of the city of Havre de Grace except on the streets excepted from the operation of the ordinance.

The complainant contends that the ordinance was and is void, because it is unconstitutional and that that being true the police officials of Havre de Grace in executing it threatened to deprive him of rights or privileges granted by the state to him for which he had fully paid. He contended that he had no adequate legal remedy for such loss as he might sustain as a result of the defendants' acts, and he therefore asked that they be restrained from—

"interfering with, arresting and fining your orator, his agents, servants and employees, from soliciting and accepting passengers for transportation for hire, in the three cars mentioned and referred to in this bill of complaint on any of the streets, lanes, and alleys of said city of Havre de Grace."

In their answer the defendants say:

"(1) That the defendant, the mayor and city Council of Havre de Grace, is a municipal corporation whose charter is codified as sections 270 to 402, inclusive, of chapter 680 of the Acts of 1916; that by the provisions of said charter the said city is empowered and charged with the duty of passing ordinances 'to protect and preserve the health of the citizens and the property rights and privileges of the city, and, for the preservation of peace and good order, securing persons and property from violence, danger or destructithaton'; ordinance numbered 298, referred to in the bill of complaint, was passed by said mayor and city council by virtue of and in pursuance of the authority contained in said charter.

"(2) That the said city of Havre de Grace has two principal thoroughfares running through said town, to wit, Union avenue and Washington street the principal business section of said city being located on Washington street; that during the months of April and September of each year, while races are being conducted by the Harford Agriculture & Breeders' Association, at the race track near said city, there is a large transient population in said city; that, during the months aforesaid, there also come to said city, from all parts of this and other states, a large number of irresponsible drivers of cars for hire; that before the passage of Ordinance No. 298 these cars would gather in the principal business section of Washington street in such numbers that said street would become practically closed to all other traffic, seriously interfering with the orderly progress of traffic in said street, and that, as the result of the keen competition among the drivers of said hiring cars, much disorder and rowdyism resulted, to the disturbance of the peace of the neighborhood and the annoyance of all the residents thereof; and that because of said condition said city was put to the expense of several additional officers in an effort to control the situation, but without result.

"(2 1/2) That said ordinance was passed to correct the condition above set forth and for no other purpose."

They also deny that the ordinance is unconstitutional or void for any reason.

A preliminary injunction as prayed in the bill was issued, and after the answer was filed the case was heard on a motion to dissolve on the bill and answer. At the conclusion of that hearing the court ordered that the preliminary injunction theretofore issued be made perpetual, and from that order this appeal was taken.

In dealing with the question thus presented we will first refer to the statutes which define and measure the complainant's right to operate automobiles for hire on the public highways of the state.

In defining the applicability of the statutes regulating the operation and use of motor vehicles on the public highways of the state it is provided (Bagby's Code, P. G. L. of Md., vol. 4, art. 56, § 133) that—

"The provisions of this sub-title are intended to be state-wide in their effect, and no city, county or other municipal sub-division of the state shall have the right to make or enforce any local ordinance or regulation which shall change, alter or affect the speed limits prescribed by. this sub-title, require any registration or licensing of motor vehicles or operators thereof in addition to the registration and licensing herein prescribed, or impose upon the owner or operator of any motor vehicle any tax, registration fee, license fee, assessment or charge of any kind for the use of a motor vehicle upon any public highway or highways of this state, provided that incorporated cities and towns within the state may prescribe and enforce reasonable traffic regulations by fine orimprisonment, either or both in the discretion of the court, applicable to all vehicular traffic., motor vehicles included, * * * and this provision shall not be deemed as repealed by any act hereafter passed unless this provision is expressly referred to and repealed in terms, or some other clear evidence given of an intent on the part of the General Assembly to change the policy of the state herein declared."

By chapter 506 of the Acts of 1920, "section 141, classification A," it is provided:

"Sixty cents per horse-power or fraction thereof in the case of all motor vehicles having pneumatic tires, with a minimum charge of ten dollars ($10.00) for any motor vehicle,"

—and by classification F, Id., it is further provided:

"One dollar and twenty cents ($1.20) per horse-power or fraction thereof in the case of all motor vehicles operating for the purpose of transporting persons for hire upon any of the public highways of this state other than motor vehicles operating on fixed schedules, the...