Petrushansky v. State

• Decision Date: 24 June 1943
• Docket Number: 28.
• Parties: PETRUSHANSKY v. STATE.
• Court: Maryland Court of Appeals

32 A.2d 696

182 Md. 164

PETRUSHANSKY v. STATE.

No. 28.

Court of Appeals of Maryland

June 24, 1943

Appeal from Criminal Court of Baltimore City; Joseph N. Ulman Judge.

Jacob Petrushansky was convicted of the violation of a health ordinance of the City of Baltimore, and he appeals.

Affirmed.

Jacob Kartman, of Baltimore (Wm. Taft Feldman and Makover & Kartman, all of Baltimore, on the brief), for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen., and Thomas N Biddison, Asst. State's Atty., of Baltimore (William C Walsh, Atty. Gen., and J. Bernard Wells, State's Atty City of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, MELVIN, and ADAMS, JJ.

SLOAN, Chief Judge.

This case comes here on a ruling overruling a demurrer to an indictment which had charged the defendant (appellant) with the violation of a health ordinance of the City of Baltimore. At the trial, he was found guilty, and from the judgment appealed. Four exceptions were taken to rulings on the evidence, but they were abandoned, and the question on demurrer only submitted for decision. The grounds of demurrer as set out in the defendant's brief are:

'I. The ordinance is too vague and indefinite to be a valid criminal enactment.

'II. The ordinance is unreasonable and oppressive and beyond the charter powers of the City of Baltimore.

'A. The Ordinance imposes a liability upon owners of property out of possession in conflict with their rights and duties under the laws of Maryland.

'B. The Ordinance imposes unreasonable burdens upon fiduciaries or agents.

'III. The Ordinance unlawfully delegates to the Commissioner of Health an arbitrary discretion whether or not to enforce it.

'IV. No definite standards are defined in the Ordinance for the guidance of the Commissioner of Health as to the conditions under which he is to act.

'V. The Ordinance grants the Commissioner of Health arbitrary discretion as to the corrective action to be taken.

'VI. No adequate notice is provided by the Ordinance.

'VII. No review of an order of the Commissioner is permitted to test its validity or propriety.

'VIII. The title of the Ordinance is misleading and it is threfore invalid.'

The indictment under which the defendant was convicted charges 'that Jacob Petrushansky, late of said city, on the first day of February in the year of our Lord nineteen hundred and forty-three, at the City aforesaid, in violation of Article Sixteen of the Baltimore City Code of the year of our Lord nineteen hundred and twenty-seven, as amended by Ordinance number Three hundred and eighty-four of the Mayor and City Council of Baltimore, passed and approved on the sixth day of March, in the year of our Lord nineteen hundred and forty-one, being then and there the owner of a certain lot, ground, cellar, premises and possession in said City fronting on Salem Street, to wit, number Twenty-five hundred and one Salem Street, in said City, and the Commissioner of Health of said City, before the institution of this prosecution, and after inspection of said premises, to wit, on the eighteenth day of December, in the year of our Lord nineteen hundred and forty-two, being of the opinion that said Lot, ground, cellar, premises and possession, was in a state of nuisance and unfit for human habitation, that the said premises contained a toilet for which inadequate drainage was provided, that the said premises contained an accumulation of rubbish and filth and that the premises and property aforesaid was in such state of disrepair as to endanger the health of the citizens of said City, he, the said Commissioner of Health of said City, on the eighteenth day of December, in the year of our Lord nineteen hundred and forty-two, notified the said Jacob Petrushansky, owner as aforesaid of said lot, ground, cellar, premises and possession, to have the said nuisance and cause of said nuisance, and particularly the conditions aforesaid existing removed and abated by repairing and correcting the same within three days after the date of the service of said notice, and the said notice having been served on the said Jacob Petrushansky more than ten days prior to the institution of this prosecution, to wit, on the eighteenth day of December, in the year of our Lord nineteen hundred and forty-two, and the said Jacob Petrushansky more than ten days after the service on him, as aforesaid, of said notice, unlawfully did refuse and neglect to comply with the terms of said notice and unlawfully did refuse and neglect to abate said nuisance and cause of nuisance, he, the said Jacob Petrushansky, during all the time aforesaid, being the owner of said lot, ground, cellar, premises and possession, and said lot, ground, cellar, premises and possession being after the date of service of said notice, and during all the time aforesaid, and at the time of the finding of this indictment, in a state of nuisance, against the form of the ordinance in such case made and provided, and against the peace, government and dignity of the State.'

The ordinance, No. 384, approved March 6, 1942, under which the defendant was indicted, tried, and convicted, is as follows:

'An ordinance to add eight (8) new sections to Article 16 of the Baltimore City Code of 1927, title, 'Health,' said new sections requiring that dwellings be kept clean and free from dirt, filth, rubbish, garbage and similar matter, and from vermin and rodent infestation and in good repair fit for human habitation, and authorizing the Commissioner of Health of Baltimore City to issue orders compelling the compliance with said provisions, or to correct the condition, at the expense of the property owner, and charge the property with a lien to the extent of the necessary expenses.

'Section 1. Be it ordained by the Mayor and City Council of Baltimore, That eight (8) new sections be added to Article 16 of the Baltimore City Code of 1927, title 'Health', sub-title 'Nuisances and Prevention of Diseases', said new sections to be under the sub-heading 'Dwellings', to follow Section 156, and read as follows:

'156A. Every dwelling and every part thereof shall be kept clean and free from any accumulation of dirt, filty, rubbish, garbage or similar matter, and shall be kept free from vermin or rodent infestation. All yards, lawns and courts shall be similarly kept clean and free from rodent infestation. It shall be the duty of each occupant of a dwelling unit to keep in a clean condition that portion of the property which he occupies or over which he has exclusive control. If the occupant shall fail to keep his portion of the property clean the Commissioner of Health may send a written notice to the occupant to abate such nuisance within the time specified in said notice. Failure of the occupant to comply with such notice shall be deemed a violation of this ordinance and upon conviction the occupant shall be subject to the penalty or penalties herein provided.

'It shall be unlawful for any person willfully or maliciously to deposit any material in any toilet, bath tub, sink or other plumbing fixture which may result in the obstruction of any sanitary sewer. This liability on the part of the occupant shall not relieve the owner of the responsibility of cleaning any resultant chokage but shall subject the occupant to the penalties of this ordinance upon proper proof of such willful or malicious act.

'156B. Every dwelling and every part thereof shall be maintained in good repair by the owner or agent, and fit for human habitation. The roof shall be maintained so as not to leak, and all rain water shall be drained and conveyed therefrom so as not to cause pampness in the walls or ceilings.

'156C. Whenever any dwelling, or any building, structure, excavation, business pursuit, matter, condition or thing in or about a dwelling or the lot on which it is situated, or the plumbing, sewerage, drainage, light or ventilation thereof, is found by the Commissioner of Health to be dangerous or detrimental to life or health, the Commissioner of Health may order that the matter, condition or thing be removed, abated, suspended, altered or otherwise improved, as his order shall specify. If any such order of the Commissioner of Health, issued under the authority of the provisions of this Section, is not complied with within ten days after the service thereof, or within such shorter time as he may designate as being necessary under the circumstances, then such order may be executed by said Commissioner of Health through his officers, agents, employees or contractors, and the expense incurred incident to said order shall be paid by the owner of said property, and until so paid shall be a lien upon the realty and recoverable as other liens on realty in Baltimore City, or he may order the premises vacated.

'156D. Before proceeding to execute such order, the Commissioner of Health shall post a notice on the front of the building stating that since such order was not complied with within the time mentioned in said notice, the Commissioner of Health will proceed to execute the same at the expiration of an additional five days and charge the cost thereof to the owner of the premises. A copy of such notice shall be sent to the owner of the property, or his agent, if names and addresses, on diligent search, can be ascertained, and such notice shall be posted on said premises at least five days before the Commissioner of Health proceeds to incur expenses, unless the condition is of such a character requiring immediate action, in which case the time of the notice shall be such as, in the judgment of the Commissioner of Health, is reasonable and proper. The Commissioner of Health shall deliver a copy of said expenses to the Bureau of Liens, and...