State v. Gurry
| Decision Date | 07 October 1913 |
| Citation | 88 A. 546,121 Md. 534 |
| Parties | STATE v. GURRY. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; Thos. Ireland Elliott Judge.
John H Gurry was indicted for violating a city ordinance. From a judgment sustaining a demurrer to the indictment, the State appeals. Affirmed.
William L. Marbury and S. S. Field, City Sol., both of Baltimore, and Edgar Allan Poe, Atty. Gen., for the State. C. Ames Brooks of New York City, and W. Ashbie Hawkins, of Baltimore, for appellee.
There is involved in this appeal the validity of the ordinance of the mayor and city council of Baltimore city, known as the "Segregation Ordinance." The appellee, a colored man, was indicted for violation of section 2 of said ordinance, and, upon the lower court sustaining a demurrer to the indictment, this appeal was taken from the judgment thereupon entered.
The ordinance, which is composed of ten sections, is entitled "An ordinance for preserving peace, preventing conflict and ill-feeling between the white and colored races in Baltimore city, and promoting the general welfare of the city by providing, so far as practicable, for the use of separate blocks by white and colored people for residences, churches, and schools."
Section 1 provides:
Section 2 is in the identical language of section 1, except that it prohibits any colored person from doing what section 1 prohibits any white person from doing.
Section 3 excepts domestic servants from the operation of sections 1 and 2 when they reside with their employers.
Section 4 is: "That the word 'blocks' as the same is used in this ordinance shall be construed to mean that portion of any street or alley upon both sides of the same between the two adjacent intersecting or crossing streets." And it further provides the method, in cases where either of the adjacent streets intersects, but does not cross, the street upon which the block in question may be located, by which that portion of the block on the side of the street facing the intersecting street is to be classified.
Section 5 fixes the penalty for violation of the prohibitions of sections 1 or 2 of the ordinance.
Section 6 provides the manner of determining whether blocks upon which there were no buildings used as residences at the time of the passage of the ordinance, but upon which it is desired by the owners thereof to erect buildings for the purposes of residences, shall become either colored or white blocks.
Section 7 provides the means whereby blocks which were either white or colored under sections 1 and 2 can be opened to the occupancy of both white and colored persons.
Sections 8 and 9 provide that no buildings, not so used prior to the passage of the ordinance, shall be used as churches or schools without a permit from the board of police commissioners, and no permit shall be issued to allow the use of such buildings by colored persons in a white block or white persons in a colored block.
Section 10 provides that nothing in the last four sections shall be taken to affect the validity of the first five sections.
The learned judge below, in sustaining the demurrer, filed an opinion, from which it appears that the reason for the court's action was based upon the unenforceability of the ordinance because of the uncertainty of the language of sections 1 and 2.
There can be no question that, this being a penal ordinance, it must be strictly construed; but this rule is open to the limitation that the construction must not be an unreasonable or forced one. As was declared in Keller v. State, 11 Md. 525, 69 Am. Dec. 226: In Wharton's Criminal Law (10th Ed.) § 28, the rule is stated thus:
In the opinion of the court we find this language: "In an effort to interpret these sections (1 and 2) we are forced to the conclusion that the thing prohibited is the residence of a white person in a block occupied, in whole or in part, by colored persons, or the residence of a colored person in a block occupied, in whole or in part, by white persons." From which, and also other portions of the opinion, it is apparent that the words "in whole or in part" were taken to modify the word "block." But this is a construction to which we cannot accede. Although at a casual reading of these two sections the language does apparently admit of this construction, nevertheless, upon close scrutiny, it is clear that the words "in whole or in part" were used to modify the words "residences or places of abode." Therefore the meaning of the language of the sections is plain that the thing prohibited is that, when the buildings on a block, "so far as the same are occupied or used as residences or places of abode, in whole or in part, shall be occupied or used as residences or places of abode" by the members of one race, then no member of the other race shall occupy any building on that block as a residence; the effect of the words "in whole or in part" being to cover blocks where all of the houses were wholly occupied, as well as where there were some vacant, but all that were occupied being occupied by the members of the same race, or where some of the houses were partly used as residences and partly as shops, stores, or other purposes other than residences, that in that event the only portion of the house to be considered in determining as to whether or not the block should come under the operation of the ordinance was to be the portion used as residences. The blocks, which at the time of the passage of the ordinance were occupied by both white and colored, are left entirely free for the same character of occupancy. Although language could have been used to make the meaning clearer, we are of the opinion that these sections are free from uncertainty, and therefore it was error to have declared the ordinance void for that reason.
The appellee contends that the ordinance is in conflict with section 221 of the City Charter wherein it is provided: "Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title," etc. This has been declared to be an adaptation of article 3, § 29, of the state Constitution. There have been so many adjudications upon that section that there can no longer be any doubt as to its correct interpretation. And what was said in the case of Gans v. Carter, 77 Md. 1, 25 A. 663, seems to be applicable here: "We have but a word to say, and that is to repeat what we have so often said, that the object of this clause was to prevent the embodying into the same act distinct and separate matters of legislation, having no connection whatever with each other, and matters not referred to in the title." Measured by this standard there can be no force in the contention.
The main question in this case arises, however, over whether the provisions of this ordinance are in conflict with article 23 of the Bill of Rights of the Constitution of Maryland and the first section of the fourteenth amendment of the Constitution of the United States. The title to the ordinance recites its purpose to be "for preserving peace, preventing conflict and ill-feeling between the white and colored races in Baltimore city, and promoting the general welfare of the city," etc. What is applicable to the white race is made precisely applicable to the colored race. No advantage that is enjoyed by one race is denied the other. Every restriction placed upon the one is in exact terms imposed upon the other. Upon whether or not this ordinance is a valid exercise of the police power must depend its enforceability.
That the city has the power under its charter to pass ordinances in the exercise of the police power, equal to legislative enactments, must be regarded as settled in this state since the case of Rossberg v. State, 111 Md. 394, 74 A 581, 134 Am. St. Rep. 626, wherein this court said: ...
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