Spann v. Gaither

• Decision Date: 11 January 1927
• Docket Number: 52.
• Parties: SPANN v. GAITHER, COMMISSIONER OF POLICE.
• Court: Maryland Court of Appeals

136 A. 41

152 Md. 1

SPANN v. GAITHER, COMMISSIONER OF POLICE.

No. 52.

Court of Appeals of Maryland

January 11, 1927

Appeal from Circuit Court of Baltimore City; Eli Frank, Judge.

"To be officially reported."

Suit by Anna K. Spann, trading as the East End Laundry, against Charles D. Gaither, Commissioner of Police for Baltimore City. Decree for defendant, and plaintiff appeals. Reversed and remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and PARKE, JJ.

Horton S. Smith, of Baltimore, for appellant.

Willis R. Jones, Asst. Atty. Gen., and Hiram C. Griffin, of Baltimore (Thomas H. Robinson, Atty. Gen., on the brief), for appellee.

PARKE J.

Anna K Spann, trading as the East End Laundry, the appellant, is the proprietor of a business which gathers, from its patrons throughout Baltimore city, soiled clothing, linens, and all other articles requiring washing and carries them in automobile trucks to its place of business where they are washed and then returned in the trucks to their respective owners, who do the ironing. The appellant's patronage is largely among those who require their articles for wash to be collected after Saturday night and washed and returned on Monday in time to be ironed on that day, so that 35 per centum of the volume of business is done by 10 o'clock on Monday morning of every week, and 40 per centum of the work is done between midnight of Monday and 10 o'clock on Tuesday morning. As the Sunday laws prohibit the work of collecting and washing to be carried on within the hours of Sunday, the appellant does not begin to collect or wash the laundry until after the midnight of Sunday, but it does begin immediately thereafter to collect, and the washing starts upon the arrival of the first truck load, and the successive steps of collecting, washing, and returning are carried on with such system and rapidity that by noon of that same Monday the 35 per centum of the weekly wash is again in the possession of its several owners. By the satisfactory performance at its laundry of this common drudgery of domestic life, the appellant had built up a large and prosperous business, when the appellee, Charles D. Gaither, commissioner of police for Baltimore city, who has control and command of the members of the police force of Baltimore city, directed those in uniform, and sent others in plain clothes and in automobiles, with instructions to arrest the drivers of any laundry wagons or trucks on the streets of Baltimore on January 4, 1926, between the end of Sunday at the hour of midnight and 6 o'clock of Monday morning.

In obedience to these instructions, policemen arrested five drivers of the appellant, who were operating in Baltimore city, during the specified period, the laundry wagons or trucks of the appellant; carried them to the station house, where they were held for the action of the grand jury. The appellee was informed that the defense of the traversers would be that the ordinance under which they had been arrested was void, and that the trial of the charges against the drivers would provide a speedy test of the validity of the ordinance. The appellee declined to await a test of the legality of the ordinance, and announced that, unless prevented by injunction, the appellee would cause, on every succeeding Monday morning, the arrest of any driver or person found working in a laundry, or collecting or delivering laundry or articles to be washed during the period named; and, in like manner, of the appellant on every successive Monday that she operated the laundry, or permitted the collection or distribution of the wash, during the forbidden hours.

The effect of the arrests made and intended would have compelled the appellant to cease all operations connected with her business during the interdicted period, unless she and her employees would have been willing to submit to the inconvenience, disgrace, and expense of repeated arrests. The position of the appellant was that, if the ordinance were valid, she was willing to abide by its mandate, although it would require the outlay of a large sum of money to install the additional machinery and equipment which would be necessary to meet the requirements of her trade, if the work of the laundry were not to begin until after 6 o'clock Monday morning; but, inasmuch as the appellant was advised that the ordinance was invalid, and the expenditure therefore unnecessary, she appealed to equity to protect her property rights, asking the ordinance to be declared of no legal effect, and, pending this adjudication, its enforcement by arrests to be suspended. The arrests were on January 4, 1926, and the bill was promptly filed 2 days later, and a preliminary injunction granted. The respondent having answered, both parties offered proof before the chancellor, who, after hearing, dismissed the bill of complaint, and the complainant appealed.

The ordinance in question is a new section of article 25 of the Baltimore city code, and became effective on January 1, 1926. The portion of the ordinance requiring consideration will be next set forth in full:

"58a. It shall be unlawful for any person, firm or corporation doing a public laundry business to operate a laundry or to collect wearing apparel or articles of any kind whatsoever for the purpose of washing or laundering or to deliver the same after having been washed or laundered, between the hours of twelve o'clock midnight Saturday and six o'clock a. m. Monday. Any person, firm or corporation violating the provisions of this section shall, upon conviction thereof, be fined not less than fifty dollars nor more than five hundred dollars for each offense."

The ordinance denounces as unlawful the operation of a laundry, the collection of the articles to be washed, and the delivery of articles which have been washed or laundered, if done between midnight of Saturday and 6 o'clock in the morning of the following Monday. It is conceded that the things forbidden were likewise forbidden by the subsisting law relating to the observance of Sunday. See Rossberg v. State, 111 Md. 394, 414, 74 A. 581, 134 Am. St. Rep. 626; Norwood v. Wiseman, 141 Md. 696, 700, 119 A. 688. The appellant and her servants did nothing in connection with the laundry business on Sunday, and the violations of the ordinance now in question were confined to the first 6 hours of Monday. The inquiry, therefore, is: Was the ordinance valid in prohibiting the doing of the things named during the lapse of the 6 hours embraced between the midnight hour of Sunday and 6 o'clock of Monday morning? Van Sant v. Harlem Stage Co., 59 Md. 330, 337, 338; Long v. State, 74 Md. 565, 572, 573, 22 A. 4, 12 L. R. A. 425, 28 Am. St. Rep. 268; Bostock v. Sams, 95 Md. 400, 418, 52 A. 665, 59 L. R. A. 282, 93 Am. St. Rep. 394.

The ordinance was passed under a general grant of power to Baltimore city (a), and the legal presumption is in favor of its validity (b), but, if the ordinance clearly appears on its face or from proper evidence to be so unreasonable that it cannot be assumed that the particular exercise of power was intended by the Legislature to have been included in the delegation of power to the municipality (c), it is the duty of the court to declare it void as a matter of law (d). Baltimore v. Radecke, 49 Md. 217, 229; State v. Mott, 61 Md. 297, 304, 309, 48 Am. Rep. 105; State v. Caspare, 115 Md. 7, 26, 80 A. 606; State v. Potomac Coal Co., 116 Md. 380, 81 A. 686; State v. Gurry, 121 Md. 534, 541, 88 A. 546, 47 L. R. A. (N. S.) 1087, Ann. Cas. 1915B, 957; State v. Hyman, 98 Md. 618, 57 A. 6, 64 L. R. A. 637, 1 Ann. Cas. 742; Byrne v. Realty Co., 129 Md. 202, 210, 211, 98 A. 547, L. R. A. 1917A, 1216. (c) Baltimore v. Radecke, 49 Md. 217, 227, 229; State v. Mott, 61 Md. 297, 307, 308, 48 Am. Rep. 105; Baltimore v. Hampton Court Co., 138 Md. 271, 276, 277, 113 A. 850, 15 A. L. R. 304. (b) Shaffer & Munn v. Union Mining Co., 55 Md. 74, 80; Etchison v. Frederick City, 123 Md. 283, 288, 91 A. 161, L. R. A. 1916C, 561. (a) City Charter of 1915, § 6, subsecs. 9, 18, 31; Baltimore v. Radecke, 49 Md. 217, 228, 33 Am. Rep. 239; Rossberg v. State, 111 Md. 394, 74 A. 581, 134 Am. St. Rep. 626; Schultz v. State, 112 Md. 217, 76 A. 592; Tighe v. Osborne, 149 Md. 349, 360, 361, 131 A. 801, 43 A. L. R. 819.

With these general principles in mind, the measure may now be more particularly examined and subjected to their application.

The object of the ordinance is not disclosed by the enactment, and the court is left without any legislative indication as to the particular evil at which the law is addressed. The ordinance must be in harmony with the municipal charter, and be reasonable in its provisions. The test of reasonableness is that the ordinance should tend in some degree to effect the accomplishment of the objects for which the municipal corporation was created and its power conferred, and should not be in contravention of common right, which as a general rule protects any one in the pursuit of any lawful calling in his own way, provided that in so doing he shall not encroach upon the rights of others. Cooley on Const. Lim. (6th Ed.) 744, 745; Byrne v. Md. Realty Co., 129 Md. 202, 210, 214, 98 A. 547, L. R. A. 1917A, 1216; Dillon on Municipal Corps. (5th Ed.) § § 589-599, 660.

A laundry is not an obnoxious or unwholesome business, nor is it a nuisance per se, and its regulation can bear no relation to the public welfare, unless the public safety, order, or morals are affected by the nature of its structure, its location, or its operation. The theory upon which the appellee relies to support the enactment in the instant case as a legitimate exercise of the police power is that the ordinance regulates the laundries of Baltimore city so as (a)...