Meushaw v. State

• Decision Date: 02 December 1908
• Citation: 71 A. 457,109 Md. 84
• Parties: MEUSHAW v. STATE.
• Court: Maryland Court of Appeals

71 A. 457

109 Md. 84

MEUSHAW v. STATE.

Court of Appeals of Maryland

December 2, 1908

Appeal from Criminal Court of Baltimore City; Daniel Giraud Wright Judge.

Clinton Meushaw was convicted of violating a municipal ordinance, and appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, and WORTHINGTON, JJ.

J Charles Linthicum and Moses R. Walter, for appellant.

Isaac Lobe Straus, Atty. Gen., for the State.

BURKE J.

The mayor and city council of Baltimore, by ordinance 283, approved May 20, 1907, made provision for the erection and maintenance of a wholesale produce market in Baltimore city. Section 101 of the ordinance defined the limits of the market. Section 102 provided that it should be used solely for the purpose of wholesaling all produce and fruits brought to Baltimore in vehicles, and that retailing therein should be unlawful. Section 104 declared that no permanent structures of any character should be erected within the market. Section 105 provided that the market should be open every day in the week, except Sundays and holidays, between the hours of 3 o'clock a. m. and 6 o'clock p. m., and should be thoroughly cleansed every market day after 5 o'clock p. m. Sections 106 and 107, which give rise to the important legal questions presented by the record, are as follows:

"Sec. 106. All dealers and commission men shall pay in advance Two Hundred Dollars per annum for the use and privilege of selling in this market. Wholesaling in the public streets is unlawful.

"Sec. 107. License for selling shall begin May 1 of each year, and must be paid by May 10 of each year, otherwise the same shall be void."

Section 108 imposes certain duties upon the assistant market master, and makes it unlawful for any one to interfere with him in the discharge of his duties. It then provides that "any one failing, or refusing to observe, or violating the provisions and requirements of sections 106 to 108 shall be deemed guilty of a misdemeanor, and shall be subject to a fine of ten dollars for each and every offense, the same to be collected as other fines and penalties are collected." Clinton Meushaw, the appellant, was indicted and convicted in the criminal court of Baltimore for violating the provisions and requirements of this ordinance, and was adjudged to pay a fine of $10 and costs. From this judgment he has brought this appeal.

The indictment contains six counts; but the fourth and fifth counts were quashed by the court at the request of the state's attorney. It is unnecessary to set out the averments to the remaining counts. They each substantially charge that on the 29th of June, 1907, the appellant, being a dealer and commissionman engaged in selling produce and fruits at wholesale in the wholesale produce market of Baltimore city, did sell at wholesale in said market produce and fruits brought to said city and market in wagons without having paid $200 per annum for the use and privilege of selling produce and fruits in said market, in violation of sections 106 and 108 of the above-mentioned ordinance. The traverser demurred to each count of the indictment, but the court overruled the demurrer, and the case proceeded to trial upon the joinder of issue upon the appellant's plea of not guilty. The state offered in evidence sections 101, 102, 103, 104, 105, 106, and 108 of the ordinance above mentioned. It then produced Mr. Harry Hooper, the city comptroller, whose duty it is to collect the market rentals and license fees, who testified that he had the record of the persons who occupied the wholesale produce market during the year 1907 and of those who paid the rentals or license fees for that year required by the ordinance offered in evidence, which is $200, and that the traverser did not pay said sum. It then called Mr. Sanner, the assistant market master at Centre Market, which includes the wholesale produce market, who testified that he visited the market daily from May 20, 1907, to July 1, 1907, and that continuously during that period he saw the traverser, who was a wholesale produce dealer or commission merchant, selling at wholesale all sorts of produce, fruits, and strawberries; that he sold in the wholesale produce market whenever he could get his wagon in; that the produce reached the market by wagons, and was sold by the wagon load within the limits of the market, and in one of the said aisles which ran through the market; that the traverser never paid the fee of $200 required by the ordinance, but refused to pay the same, and that, after his refusal to pay, he continued to sell as a commission merchant until July 1st. This witness on cross-examination said that the seven aisles were driveways with seven openings, running from the east to the west, from Market Space to West Falls avenue, straight through the market.

The following questions were asked the witness on cross-examination:

"(1) Suppose a wagon went in one of these aisles, could it get in the other aisle?

"(2) Suppose a wagon in that aisle would sell its goods before a wagon ahead of it, could the wagon which had sold get out?

"(3) Where was Mr. Meushaw selling before the market was completed?

"(4) Did you notify him that he must go to this market?"

The court upon objection by the state refused to allow the witness to answer these questions, and these rulings constitute the appellant's first, second, third, and fourth bills of exception.

Charles H. Schenkel was called, and testified that Meushaw did business in the wholesale produce market during the whole season of 1907--that is, during July, August, and September of that year--that he sold produce by the wholesale, which is brought in country wagons, and sold from the wagons, the wagons being somewhere in one of the seven aisles. On cross-examination the witness was asked the following questions, which the court, upon objections by the state would not permit him to answer: "(1) Was there any special aisle assigned to any of these commission merchants? (2) Can you explain to the jury how these aisles are constructed?" These rulings are made the subject of the traverser's fifth and sixth bills of exception. He then offered to read to the jury section 107 of the ordinance; but the court would not allow it to be read in evidence. This ruling constitutes the seventh and last bill of exception. With this statement of the material facts were are prepared to consider the reasons urged by the appellant in support of the demurrer. It is said that the charge of $200 imposed by section 106 of the ordinance is void, first, because it is unreasonable; second, because it is not uniform as to all produce dealers and commissionmen; third, because there is no authority under the charter of Baltimore city given to the mayor and city council to impose such a charge for the use of the market; fourth, that, if the ordinance be not invalid for any or all of these reasons, it is contended that the appellant had not violated any of the provisions of the ordinance if section 107 be valid, because the charge imposed by 106 was not payable for the year 1907 since the ordinance was not approved until May 20, 1907, and therefore the requirement of that section could not become operative or binding upon the traverser until May, 1, 1908; but it is further contended that, if that section be invalid, the demurrer should have been sustained, because by section 59 of the city charter the license imposed was not due and collectible until the first week of January, 1908. As the demurrer denies the power of the city to pass the ordinance, it is proper in the first place to advert to the general rule respecting the construction of...