State v. Depew
| Decision Date | 22 July 1938 |
| Docket Number | 22. |
| Citation | 1 A.2d 626,175 Md. 274 |
| Parties | STATE v. DEPEW. |
| Court | Maryland Court of Appeals |
Certiorari from Circuit Court, Baltimore County; Wm. H. Lawrence, Judge.
Arthur E. Depew was charged before a justice of the peace with having operated an automobile without a chauffeur's license, and was found guilty. To review a judgment of the Circuit Court which on appeal found him not guilty, the State brings certiorari.
Affirmed.
Herbert R. O'Conor, Atty. Gen., Chas. T LeViness, 3d, Asst. Atty. Gen., and Whlie Ritchey, Sp Counsel, of Baltimore, for the State.
Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.
For reasons to be stated in an opinion to be filed hereafter, the court has concluded that the judgment in this case must be affirmed.
Judgment affirmed.
In this proceeding the question presented is whether a person employed by the State of Maryland as an auditor, who, in order to perform his duties in various parts of the State, uses in going to and from such assignments an automobile furnished him by the State Auditor is thereby, in so using said vehicle, a chauffeur within the purview of Section 173 of Article 56 of the Code Supp.
It is admitted that at the time of his arrest appellee was so employed and was returning from Frederick to Baltimore City in company with others similarly employed; that he had an operator's license, but no chauffeur's license. He was charged before a Justice of the Peace of Baltimore County with having operated an automobile upon the public highways of the County without a chauffeur's license, upon which charge he was found guilty and sentenced to pay a fine and costs. Upon appeal to the Circuit Court of that County from the judgment he was found not guilty and by virtue of Chapter 238, Acts of 1937 (Sec. 102-A, Code Art. 5), the case comes to us upon a writ of certiorari granted by this Court upon the representation that decisions throughout the State upon the question involved are conflicting.
In Section 186, Article 56, provision is made for two types of licenses, motor vehicle operator's license and chauffeur's license, and it is provided by Section 173 of the same Article that the term 'chauffeur' as used in the statute includes 'every person operating a motor vehicle for hire, or as an employee of the owner thereof', while by Section 188 authority is given the Commissioner of Motor Vehicles to determine 'in disputed cases * * * the kind of license to which any applicant may be entitled.' In 1917 and again in 1926 opinions were rendered by the then Attorney-Generals of the State construing the Section in question to mean that chauffeur licenses were required of all persons operating their employer's automobile, including those who operated automobiles owned by the State. 2 Opinions of the Attorney General, pages 282-283; 11 Opinions of the Attorney-General, pages 218-219. But a contrary view of the statute was taken in 1937 by the present Attorney-General. 22 Opinions of the Attorney-General, pages 4, 5, 6.
Appellee was never employed as a chauffeur, but as a State Auditor, and the extent of his operation of the motor vehicle was purely incidental to the purposes of his employment, and only as a means of enabling him to make his assignments and return to his home in Baltimore.
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State v. Haas
... ... This ... court has appellate jurisdiction only, and is not authorized ... to issue writs of certiorari except in aid of that ... jurisdiction, or as a statutory method of exercising that ... jurisdiction. Code Art. 5, Sec. 104; State v. Depew, ... 175 Md. 274, 1 A.2d 626. If we have jurisdiction to entertain ... an appeal in this case, then there is no occasion for the ... issuance of a writ of certiorari. The entire record is before ... us and we can pass upon all questions ready for our ... consideration. On the other hand, if an ... ...
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... ... construed differently by the courts of two or more Circuits ... or that there are other special circumstances rendering it ... desirable and in the public interest that the case should be ... reviewed.' This section has been used in State v ... Depew, 175 Md. 274, 1 A.2d 626, and Darling Shops v ... Baltimore Center Corp., Md., 60 A.2d 669. In both of ... these cases the question raised was an erroneous construction ... of law, and a representation that conflicting decisions had ... been made throughout the state on the questions involved ... ...