Thistlewood v. Trial Magistrate for Ocean City, Worcester County

• Citation: 204 A.2d 688,236 Md. 548
• Decision Date: 17 November 1964
• Docket Number: No. 45,45
• Parties: Donald THISTLEWOOD and Paul Thistlewood, Jr., etc. v. TRIAL MAGISTRATE FOR OCEAN CITY, WORCESTER COUNTY.
• Court: Court of Appeals of Maryland

Page 548

236 Md. 548

204 A.2d 688

Donald THISTLEWOOD and Paul Thistlewood, Jr., etc. v. TRIAL MAGISTRATE FOR OCEAN CITY, WORCESTER COUNTY.

No. 45.

Court of Appeals of Maryland.

Nov. 17, 1964.

Henry F. Lankford, Snow Hill, for appellants.

Marcus J. Williams, City Sol. for Mayor and City Council of Ocean City, Berlin, (Thomas B. Finan, Atty. Gen., and Robert F. Sweeney, Asst. Atty. Gen., Baltimore, and W. Ross Hockersmith, State's Atty. for Worcester County, Snow Hill, on the brief), for appellee.

Before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY, and SYBERT, JJ.

HAMMOND, Judge.

The appellants, who are brothers, both under twenty-one at the time here pertinent, were convicted by a trial magistrate of violating an ordinance of Ocean City, Maryland, which prohibited persons under twenty-one from remaining on the streets of the town between the hours of 12:01 a. m. and 6:00 a. m. on each of the days from Saturday, August 31, to Tuesday, September 3, of 1963 (the Labor Day weekend). They were arrested at 4:55 a. m. on Saturday the 31st and tried later in the day, being convicted and fined $10.00 and costs. They appealed to the Circuit Court fow Worcester County, but the appeals were not perfected and not pressed. Instead, on September 13, 1963, a petition for a writ of certiorari was filed in the circuit court seeking a review of the proceedings before the magistrate and the annulment of the convictions on the ground that the curfew ordinance was illegal, unconstitutional and void because it unduly restricted the personal liberties of the petitioners. At least for the purposes of the case, the appellants admitted that if the ordinance was valid they had violated it.

The writ issued and after a hearing before the four judges of the First Judicial Circuit, sitting together, an opinion was filed upholding the constitutionality of the curfew ordinance. The brothers appealed to this Court.

It is established that the circuit court in the exercise of its common law jurisdiction may grant the writ of certiorari to review the decision of a magistrate upon the specified ground that the unconstitutionality of the statute involved left the magistrate without jurisdiction and that an appeal will lie to this Court from the judgment of the circuit court. Rayner v. State, 52 Md. 368; State v. Jacob, 234 Md. 452, 199 A.2d 803. In State ex rel. Wilson v. Stafford, 160 Md. 385, 153 A. 77, Stafford, who had been convicted by the magistrate on June 4, noted an appeal to the circuit court on June 12, but did not press the appeal; rather, as did the appellants here, he sought certiorari on July 14 to test the jurisdiction of the magistrate. After he lost in the circuit court, he filed an appeal which this Court entertained and decided.

Code of Public Local Laws of Worcester County (Everstine, 1961), Sec. 185, enumerates the powers the Legislature has given the Mayor and City Council of Ocean City:

'to pass all such ordinances not contrary to the Constitution of this State as it may deem necessary:

* * *

* * *

'For the preservation of peace and good order and securing persons and property from violence, danger or destruction.

'For the protection of the health, comfort and convenience of the citizens of Ocean City and visitors thereto or sojourners therein.

* * *

* * *

'* * * and to prohibit the youth of said city from being on the streets, lanes or alleys at unreasonable hours of the night.'

On August 13, 1963, Ocean City enacted Ordinance 120-A '* * * to impose a curfew on the youth [those under twenty-one] within the corporate limits of the town * * *' from Saturday August 31, to Tuesday, September 3, the Labor Day weekend, between the hours of 12:01 a. m. and 6:00 a. m. The ordinance recites that Sec. 185, quoted in part above, gives Ocean City the power to pass such a law and that during the Labor Day weekends of 1960, 1961 and 1962:

'* * * Ocean City suffered from the presence in the municipality of extremely disorderly groups of minors, said disorder amounting almost to riots, requiring many police officers, both local and state, and, on occasions, police dogs, to control the situation and maintain the peace of an otherwise normal and peaceful community, and to protect the property and personal safety of visitors to and residents of Ocean City * * *.' ¹

The legislative body of Ocean City therefore, then ordained:

1. '* * * that a state of curfew is hereby declared for persons under 21 years of age, on all public streets, ways, avenues, alleys or beaches * * *' during the proscribed hours.

2. '* * * that notice of the imposition of this curfew shall be given by sound-powered voice or other public announcement device between the hours of 11:30 o'clock p. m. of the previous day and 12:01 o'clock a. m. * * *' of the curfew days, instructing all persons under twenty-one years of age to remove themselves from the streets, ways and beaches of the town.

3. That any person under twenty-one years of age 'who shall be found on any public street, way, avenue, alley or beach' during the prohibited times 'shall be in violation of the provisions of this ordinance and subject to immediate arrest.'

Curfew regulations have been said to have been brought into England by William the Conqueror (although during the reign of Alfred there was an ordinance that Oxford inhabitants should retire at the tolling of a curfew bell) and the name is said to have come from the French words, couvre feu, for covering the fire. Originally the curfew was used to require, at a given signal or a given time, that the fires in homes be covered or protected for the night, but the Conqueror used it to require the English to be off the streets or away from a given area at a prescribed time in order to prevent their gathering together.

In this country, before the War between the States, there were curfew laws in southern towns to designate the times when slaves could be on the streets. Curfew legislation aimed at juveniles received its first substantial support in the latter part of the nineteenth century. By the turn of the century, approximately three thousand municipalities and villages had adopted juvenile curfew ordinances. Interest in such curfews then waned until the Second World War, when, with parents in the armed services or working in war plants, often at night, and with the influx of servicemen into urban areas, conditions again brought into vogue curfews aimed at preventing juveniles from roaming the streets or loitering in public places. Currently, some forty-eight cities with populations of over one hundred thousand have curfews aimed at minors, which are enforced (nine others have such laws but admit they do not enforce them). The National Institute of Municipal Law Officers has prepared a Model Curfew Ordinance (Rhyne Ed. 1952, National Institute of Municipal Law Officers, Model Curfew Ordinance Service, Secs. 7.401, 7.402). Oregon is the one State with an outright curfew law, although eleven others have laws against vagrancy or loitering which to a great extent have the effects of curfews. Generally, curfew laws are of one or the other of two types--the 'presence' type in which it is forbidden to be on the street after a certain time, and the 'loitering' or 'remaining' type in which the proscription is against loitering, congregating or remaining on the street. Zealous enforcement has often made one the equivalent in practice of the other. Both types often have exceptions excepting minors who are with a parent or on an emergency mission.

Much of this background and description of curfew laws was taken from a carefully prepared and thorough article entitled 'Curfew Ordinances and the Control of Nocturnal Juvenile Crime' in 107 Pa. L. Rev. 66 (1958). For other interesting discussions of the curfew law see 1 Villanova L. Rev. 51; 55 Mich.L. Rev. 1026; and 32 Tulane L. Rev. 117.

Despite the widespread prevalence of curfew ordinances in the past and at the present time, the cases dealing with the constitutionality of such statutes are few, and, in all but one instance, not the decision of the highest court of the State.

In Ex Parte McCarver (1898), 39 Tex.Cr. R. 448, 46 S.W. 936, 42 L.R.A. 587, the Town of Graham, Texas, which had not been given the power by the legislature to control the presence of minors on the street, but which, nevertheless, had passed a curfew ordinance prohibiting persons under twenty-one from being 'found' on the street after 9:00 p. m., unless with parent or guardian or in search of a doctor, found its ordinance challenged in the highest Texas Court empowered to deal with it. That Court said that if the town had been expressly empowered to pass the ordinance it would not have been inclined to pass on its reasonableness, but since it had not, the court would inquire into the reasonableness of the ordinance in relation to the preservation of the public peace and the protection of the good order and morals of the community. The ordinance was found unreasonable because it unduly restricted minors from having '* * * the same rights of ingress and egress that citizens of mature years enjoy,' that is, it was construed as a 'being' or 'presence' type. There was no discussion or consideration of the...