State v. Stewart

• Decision Date: 03 March 1927
• Docket Number: 104.
• Citation: 137 A. 39,152 Md. 419
• Parties: STATE v. STEWART.
• Court: Maryland Court of Appeals

137 A. 39

152 Md. 419

STATE v. STEWART.

No. 104.

Court of Appeals of Maryland

March 3, 1927

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

"To be officially reported."

David Stewart was indicted for violation of parking regulations made by the police commissioner of Baltimore City. From a judgment sustaining a demurrer to the indictment, the State appeals. Affirmed.

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

Willis R. Jones, Asst. Atty. Gen., and Eugene A. Edgett, of Baltimore (Thomas H. Robinson, Atty. Gen., and Herbert R O'Conor, State's Atty., of Baltimore, on the brief) for the State.

Arthur W. Machen, Jr., of Baltimore (J. Britain Winter, of Baltimore, on the brief), for appellee.

DIGGES J.

On July 16, 1926, the appellee was indicted by the grand jury of Baltimore city for violation of the parking regulations made and promulgated by the police commissioner of Baltimore city, with the approval of the mayor; said regulations having been made under the authority of chapter 436 of the Acts of 1924 of the General Assembly of Maryland. A demurrer was interposed to the indictment and sustained by the lower court. From this action the appeal is taken.

The indictment alleges that Charles D. Gaither, being then the police commissioner of Baltimore city, did, in pursuance of the power conferred upon him by law, and particularly by chapter 436 of the Acts of 1924, authorizing, empowering, and directing the said police commissioner to make rules and regulations for the control and conduct of all vehicles and vehicular traffic on the streets, avenues, alleys, and highways within the city of Baltimore, make certain rules and regulations; one of which being known as section 8 of article 1, and providing:

"Except on streets as mentioned in sections 3, 4, 6, and 11 of this article, vehicles will be permitted to park within the central business district between the hours of 9:30 a. m. and 6 p. m. provided they do not stand for a longer time than two hours continuously in any one block; and provided further that on Sundays, legal holidays, and Saturdays after 2 p. m. unlimited parking will be allowed except on streets described in section 11 of this article; and provided further that parking at night shall be subject to restrictions as mentioned in section 5, art. 2, of these regulations."

"And that David Stewart, late of said city, on the 7th day of June, in the year of our Lord 1926, at the city aforesaid, in violation of the rule and regulation aforesaid, unlawfully did permit to be parked and to stand within the central business district between the hours of 9:30 a. m. and 6 p. m. for a longer time than two hours continuously, to wit, six hours, in a certain block, to wit, Mulberry street, between Calvert street and Saint Paul place, in said city, the said 7th day of June in said year not being then and there a Sunday, legal holiday, or Saturday, contrary to the rule and regulation aforesaid, contrary to the form of the act of Assembly in such case made and provided, and against the peace, government, and dignity of the state."

By the demurrer to the indictment the constitutionality of chapter 436 of the Acts of the General Assembly of Maryland of 1924 was attacked, and three reasons were assigned for the unconstitutionality of this act: First, that it is in conflict with article 11A of the Constitution of Maryland; second, because chapter 436 of the Acts of 1924 is an unconstitutional delegation of legislative power to the police commissioner and mayor; and, third, because the said act is in conflict with the Constitution of this state, and with that clause of the Fourteenth Amendment to the Constitution of the United States which provides that no state shall deny to any person within its jurisdiction equal protection of the laws, in that said act confers arbitrary and unlimited powers on the police commissioner with the approval of the mayor, and permits said police commissioner, with the approval of the mayor, to prohibit the parking of automobiles arbitrarily and upon its mere whim and without fixing any standards by which such action is to be guided.

The trial court sustained the demurrer upon the first ground, to wit, that the Act of 1924, c. 436, is in conflict with article 11A of the Constitution of Maryland. Having reached a conclusion in harmony with that decision, which necessitates the striking down as unconstitutional of the act of the Legislature in question, it is unnecessary to pass upon the other grounds urged by the appellee for its invalidity.

Article 11A of the Constitution of Maryland, known as the Home Rule Amendment, was adopted by a vote of the people of the state in November, 1915, pursuant to the provisions of chapter 416 of the Acts of the General Assembly of 1914. The wisdom of incorporating in the organic law of the state such provisions as are contained in this article had been urged for a number of years prior to its adoption; the reasons assigned by its proponents being that a larger measure of home rule be secured to the people of the respective political subdivisions of the state in matters of purely local concern, in order that there should be the fullest measure of local self-government, and that these local questions should thus be withdrawn from consideration by the General Assembly, leaving that body more time to consider and pass upon general legislation and to prevent the passage of such legislation from being influenced by what is popularly known as "log-rolling"; that is, by influencing the attitude and vote of members of the General Assembly upon proposed general laws by threatening the defeat or promising the support of local legislation in which a particular member might be peculiarly interested. The portions of this amendment affecting this controversy are found in sections 2 and 4 of article 11A, which are:

"Sec. 2. The General Assembly at its first session after the adoption of this amendment shall by public general law provide a grant of express powers for such county or counties as may thereafter form a charter under the provisions of this article. Such express powers granted to the counties and the powers heretofore granted to the city of Baltimore, as set forth in article 4, section 6, Public Local Laws of Maryland shall not be enlarged or extended by any charter formed under the provisions of this article, but such powers may be extended, modified, amended or repealed by the General Assembly."

"Sec. 4. From and after the adoption of a charter under the provisions of this article by the city of Baltimore or any county of this state, no public local law shall be enacted by the General Assembly for said city or county on any subject covered by express powers granted as above provided. Any law so drawn as to apply to two or more of the geographical subdivisions of this state shall not be deemed a local law, within the meaning of this act. The term 'geographical subdivision'

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