State v. Loden
| Decision Date | 09 February 1912 |
| Citation | 83 A. 564,117 Md. 373 |
| Parties | STATE ex rel. EBERT v. LODEN, Justice of the Peace. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Thos. Ireland Elliott, Judge.
Certiorari by the State on the relation of Frank M. Ebert against Daniel J. Loden, a justice of the peace presiding at the Western Police Station in the city of Baltimore. From an order quashing the writ and remanding the case to the justice of the peace for further proceedings, the relator appeals. Affirmed in part and reversed in part, and case remanded.
Argued before BOYD, C.J., and PEARCE, BURKE, THOMAS, STOCKBRIDGE and PATTISON, JJ.
Watson E. Sherwood and J. Wallace Bryan, for appellant. Emory L Stinchcomb and Isaac Lobe Straus, for appellee.
In this case the relator, Frank M. Ebert, on the 22d day of October 1910, was arrested upon a warrant charging him with having unlawfully operated a moving picture machine in the city of Baltimore without having first secured a license in accordance with the provisions of chapter 693 of the Acts of 1910 of the General Assembly of Maryland, and when carried before the respondent, a police magistrate of that city, he protested against and denied the jurisdiction and authority of the magistrate to find him guilty of any punishable offense upon the facts alleged in the warrant for the reason that said alleged act of Assembly which he was charged with having violated was unconstitutional and void. The case was from time to time postponed until on the 6th day of December, 1910, the ralator, after unsuccessfully protesting against the jurisdiction of the magistrate for the reason stated above, asked for a jury trial which was refused him, but the justice took his recognizance for his appearance before him at a later day therein named. Before the case was heard, however, the relator filed his petition in the Baltimore city court alleging the facts as we have stated and further alleging therein: First. That the said act of 1910 violates the fourteenth amendment to the Constitution of the United States by unjustly, arbitrarily, and unreasonably discriminating against the petitioner and all others in like situation with him, who were engaged in the vocation of moving picture machine operator in the city of Baltimore at the time of the passage of said act, by depriving him and all others in like situation with him of his and their liberties and property without due process of law, and denying to him and them the equal protection of the laws. Second. That the said act is also void for the reason that it violates the Constitution of Maryland: (1) For the reasons assigned above by which it is alleged it contravenes the federal Constitution. (2) "Because it embraces more than one subject and its subject-matter is not sufficiently described in its title." (3) It assumes unlawfully to delegate to a certain board of examiners attempted to be created therein legislative powers and discretion, contrary to article 8 of the Bill of Rights of the state of Maryland. (4) Because as interpreted it vests complete summary jurisdiction in police magistrates and justices of the peace of Baltimore city to try and punish violations under it without providing for trial by jury or for any appeal to a higher court.
The petition then prays the court to issue its writ of certiorari commanding the justice. Daniel J. Loden, to send and certify to such court the record of the proceeding in the case together with the writ that the jurisdiction of the magistrate might be inquired into. The writ was issued as prayed, to which a return was made and filed by the justice of the peace termed the defendant in the certiorari proceedings, and by him a motion was made to quash the writ. The court after hearing argument held that the petitioner having prayed a jury trial was under the act entitled to a trial by jury, and thus passed an order quashing the writ and remanding the case to the justice of the peace for further proceedings to be had in conformity with his opinion therein expressed. It is from this order that the relator has appealed.
The title of the act of 1910, c. 693, is: "An act to add a new article to the Code of Public Local Laws, to be known as 'moving picture machine operators,' subtitle 'Baltimore city,' and be numbered." Following the title are several "whereas" clauses in which attention is called to the danger to life and property incident to the use of explosives in the operation and management of moving picture machines by careless and incompetent operators and to the necessity for the enactment of a law "by which none but persons who are skilled in the avocation of operating moving picture machines or electrical projecting apparatus should be allowed to pursue that calling, and to that end a board of examining moving picture machine operators should be created whose duty it shall be to examine moving picture machine operators desiring to follow that trade and give such as may possess the proper requisites a proper certificate of proficiency." Thereafter follow the seven sections of the act. The first section is the enacting clause. The second section defines the meaning of the term "moving picture machine."
The third section provides that the Governor "shall biennially appoint in and for Baltimore city three persons, one from the Board of Fire Underwriters' Association, one master electrician to represent the building inspector's office of the city of Baltimore, and one moving picture machine operator, all of whom have had not less than five years' experience at the business and who have resided in Baltimore city, state of Maryland, for a period of not less than two years next preceding their appointment, who shall be known as the Board of Examining Moving Picture Machine Operators."
Section 4 provides that "all persons who at the time of the enactment of this act are engaged in the business of a 'moving picture machine operator' in the city of Baltimore, as described in section 2 of this act, shall within sixty days after the first day of May, 1910, comply with all the provisions of this act; otherwise they shall be guilty of a misdemeanor, and, upon conviction before a justice of the peace or a police justice, be fined a sum not less than ten dollars, nor more than fifty dollars, for each day or fraction thereof that they shall pursue the business 'moving picture machine operator' in the city of Baltimore, and, if said fine is not paid, he shall be subject to imprisonment for ninety days, or both, at the discretion of the judge."
By section 5 it is provided that:
Section 6 vests in the Board of Examining Moving Picture Operators the power to suspend or revoke the license of any operator who is negligent in the operation of his machine or who operates it in a manner dangerous to the safety of life or property, but this power is to be exercised only after full opportunity is afforded the party charged to be present in person, or by counsel, and make any defense he may have, and then only subject to the restriction and limitation therein named.
Section 7 states the amount to be paid to the Board of Examiners for their services and directs that it together with certain expenses therein named be paid out of the funds received from the issuance of licenses, and further directing that the surplus, if any, from such source be paid over to the state treasurer. It also provides for the times of meeting of said board and the notice to be given by them of such meeting.
Taking up the objections urged against the validity of this statute which the defendant is here charged with having violated, we will first consider the objection that it contravenes the fourteenth amendment to the federal Constitution, and the twenty-third article of the Bill of Rights of this state, both of which declare that no person shall be deprived of his life, liberty, or property without due process of law. These constitutional safeguards have been so fully considered and discussed not only by the Supreme Court of the United States, but by this court as well, that the proper construction to be placed thereon when attempted to be applied in cases of this character seems to be well settled and established. Dent v. W. Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Magler v. Kansas, 123 U.S. 623, 8 S.Ct. 273 31 L.Ed. 205; Soon Hing v. Crowley, 113 U.S. 703, 5...
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