State v. Strauss

• Decision Date: 27 June 1878
• Parties: STATE OF MARYLAND v. GEORGE W. STRAUSS.
• Court: Maryland Court of Appeals

49 Md. 288

STATE OF MARYLAND v. GEORGE W. STRAUSS.

Court of Appeals of Maryland

June 27, 1878

The cause was submitted to BARTOL, C.J., BOWIE, GRASON, MILLER and ALVEY, JJ.

Charles J. M. Gwinn, Attorney-General, for the State.

The petition of the State to have the record in this case removed, as upon writ of error into this court, under Rule 1 designates the question of law by the decision of which the State was aggrieved. It was the error of the court in determining by the allowance of the demurrer, that the indictment was defective because of the absence of any sufficient averment in said indictment, that the Board of Police Commissioners of the City of Baltimore had directed all bar-rooms, bars, drinking houses, and other places where liquor is usually sold in the City of Baltimore, to be closed for a definite period of time.

The Board of Police Commissioners of Baltimore City derived its existence and general powers from the Act of 1867, ch. 367. It is within the limits assigned for its jurisdiction, the depository of the police power of the State. Baltimore v State, 15 Md. 393, 394, 466. It is its duty to prevent crime, to arrest offenders, to protect the rights of persons and property, to guard the public health, and to preserve the public peace within the limits of the City of Baltimore. The Act, in addition to the general duties which it imposed, and to the general powers it granted, authorized the Board (1867, ch. 367, sec. 818,) whenever, in its judgment, the public peace and tranquillity might require the exercise of such power, to order the closing temporarily of all places where liquor is usually sold in the City of Baltimore, and to forbid the selling or furnishing of liquor at such places. It further provided that any proprietor or keeper of such place who refused or failed to obey such order, or who should sell or furnish liquor during such period as the said Board might so forbid, should be guilty of a misdemeanor.

This Act was partly remedial and partly penal. Its chief design was as a remedial statute. It was a grant of those police powers which are necessary to the tranquillity of every well-ordered community. Sedgwick on Const. & Stat. Law, 435. Such powers require for their exercise, summary and preventive measures. The welfare of a State is more promoted by the repression of disorder and the maintenance of peace and security in every locality, than it is by the prosecution and punishment of offenses after they are committed.

In the construction of such statutes it is pre-eminently the duty of judges to interpret them in such manner as will suppress the mischief and advance the remedy; to put down all subtle inventions and evasions for continuing a mischief commenced pro privato commodo; and to add pro bono publico, force and life to the cure and remedy according to the true intent of the makers of the Act. Heydon's Case, 3 Coke, 7; Parkinson v. State, 14 Md. 196.

The court must take notice of the proclamation by the Governor of this State-- an Act of State--dated July 21st, 1877, in which after referring to the riotous demonstrations which had taken place in the City of Baltimore on the preceding evening, as evincing a spirit of lawlessness, which, if not suppressed, would end in great public mischiefs, he called upon all law-abiding citizens of Baltimore to aid in the maintenance of quiet. 1 Taylor Ev. sec. 5.

The order of the Board of Police Commissioners, alleged in the indictment, was issued after this proclamation, and after the occurrence of a scene of bloodshed and riot almost unexampled in the history of the community in which it occurred. It was issued while disorders, culminating in great destruction of property, were occurring in other parts of the State. It was issued at a time when examples of devastation and conflict had been set in other States, which threatened the security of all orderloving people in the City of Baltimore and in this State. The measure was essential to the quiet and peace of the community.

The Board could not tell how long the disorder would last. The danger was imminent. In view of the whole situation of affairs, it would have been very inexpedient to direct that these places should be closed for a day only. In view of the public danger and alarm existing at the time--of which the proclamation of the Governor is sufficient evidence--it would have been eminently inexpedient to increase the public apprehension by directing that such places should be closed for a week or for a month; for such an order would have been an official declaration to the public that the authorities did not look for the restoration of tranquillity within a shorter time.

Prudence, therefore, dictated to the Board the necessity of exercising their power of closing, and allowing the reopening of such places by separate acts. The order to close such places until further notice was information to the public and to those concerned, that this restriction would continue no longer than the necessity of the case required; and that upon the restoration of tranquillity, it would be terminated by a direct order removing it.

If the guiding principle in the construction of powers is to be derived from a consideration of the purpose which the agent or depository of the power is appointed to accomplish, Baltimore v. Reynolds, 20 Md. 10, then, as the purpose of the power granted by the Act of 1867, ch. 367, sec. 818, was the preservation of the public peace and tranquillity, an order was valid which was precisely adapted to the prevention of the mischief of open drinking houses while the public disorders continued. The keepers of the drinking places required to be closed could not be made the judges of the time when they might properly reopen them. The Police Board did not know when that time would arrive; and, therefore, they properly required such places to be closed until further notice.

Questions of the rights of the keepers of the drinking houses ordered to be closed, do not properly enter into the inquiry. The constitutional limitations protecting private property, have no application to the exercise of police powers by a State. Com. v. Algier, 7 Cush. 84; Cooley on Const. Lim. 572; Bode v. State, 7 Gill, 329; Sedgwick on Const. of Stat. 435, 436.

F. W. Brune, Jr., for the defendant in error.

The power conferred upon the Board of Police Commissioners by the Act of 1867, ch. 367, being a grant of extraordinary powers over the property and franchises of citizens, it should be strictly construed so as to injure their business as little as possible; and any material variation from the authority granted will vitiate the whole proceedings. Canal Co. v. R. R. Co. 4 G. & J. 1; Shawnee Co. v. Carter, 2 Kansas, 115; Hall v. Co. of Marshall, 12 Iowa, 153; Sedgwick on Stat. and Const. Law, 347-351.

There can be but two constructions fairly placed upon the language of this statute; one, that this power is given to close the bar-rooms of Baltimore for an unlimited time, entirely in the discretion of the Board of Police; the other that the right is given to the Board to close them for a certain definite "period," which must be temporary.

What, then, is the power delegated by the Act of 1857, ch. 367? It is a power given to a body of men to suspend the laws of a State; to make that a crime which was not so before; in other words, to give them power to pass a law, the breach of which is to be visited by indictment and prosecution like the breach of any of the criminal laws of the State. It may be a grave question whether the Legislature can confer its own constitutional functions of making laws on any one, or on any body of men. The grounds on which such a delegation can be allowed in this case, can be only that it is in the nature of a police regulation, but if such, it must be reasonable and within the power of the Legislature to confer.

The first construction, viz., That the Board of Police have the power to suspend, in their discretion, the business of liquor selling in Baltimore, would, if carried out, to its logical conclusion, confer on that Board in their discretion, and at any time their inclination or prejudice might lead them so to do, the power to practically pass a prohibitory liquor law for the City of Baltimore. To destroy, at their will and pleasure, the recognized rights of a large portion of the community, is to do an act which the State itself should not attempt without the most serious deliberation, and under the most convincing proofs of its necessity.

The consequence of such order, if valid, might be the destruction of the value of property in which citizens have invested their means, at the invitation of the State, and under heavy charge for a license, the proceeds of which have gone into the State's own treasury.

Can it be contended that the Legislature intended to confer any such power on the Board of Police-- a power not only,...