Summary
Appeal from the Equity Side of the Superior Court of Baltimore city.
The bill in this case was filed,on the 17th of July 1858, by the appellee against the appellant, Inspector General of Grain, in and for Baltimore city, for an injunction to restrain-proceedings, then pending before a justice of the peace of the city of Baltimore, which had been instituted in the name of the State, for the use of the defendant as informer, to recover the penalty of ¡¡¡>25, under the 15th section of the act of 1858, ch-.-256.
The questions presented by this appeal, involve' the construction of this act of 1858,-ch. 256. The injunction granted according to the prayer of the bill, prohibited the defendant from proceeding in the charge then pending before the magis- - trate, and also from instituting, as informer or otherwise, any similar charge against the complainant. After answer filed a motion was made to dissolve the injunction, á'nd this mbtion was argued on bill, answer, and an agreement of facts,- which with the allegations of the bill and answer, are fully stated in the opinion of this court, as well- as in the following opinion of the court below, (Lee J.,) delivered, upon passing"the' order continuing the injunction:
“The questions presented for my decision are very interesting, not only as it regards the construction of a public law, operating upoman important branch of trade, but also from the application of a' remedy which it is insisted that a court of equity can now only give. I shall,- therefore,- as briefly as-possible, state the conclusion to which 1 have come, after heating the able arguments- in this case.
“The complainant is a merchant,- engaged in the purchase and sale of grain, in the city of Baltimore,- and in his bill,praying for the injunction,- (to dissolve Which the present motion is made,) sets forth,-that in July last,- he contracted, at the Corn Exchange, With a certain William Si Pawson,- for the' purchase of a lot or parcel of wheat, represented by a samplethen exhibited by said Pawson,- estimating the wheat,- so contracted for, at 112 bushels,- more or less, and that by the terms-of contract, Pawson was to receive therefor, $1 for each and every bushel which the said lot of wheat contained, and- that the said wheat had just arrived from the Eastern Shore of Maryland, and- was then,- for the first time, offered for sale in the city of Baltimore; that before this- contract of purchase was consummated, the wheat was brought to the Warehouse of the complainant and deposited, and- immediately thereafter,- the defendant, William Frazier, Inspector General of grain, in and for the city of Baltimore, was duly notified, by Pawson, that the wheat .was- ready to be - measured and weighed, in conformity with the law of the' State, and requested the defendant., as such Inspector General, to measure and weigh said wheat, according to law, and perform his official duty in the' premises. Whereupon the defendant replied, that after the wheat was measured, he would weigh it by weighing ones bushel out of every sixty, or at that rate, and would not weigh it in any other manner.
“The complainant then alleges in his bill, that after waiting a reasonable time for the defendant to have the wheat weighed, and hearing nothing from him, he addressed letters to him on the subject; which correspondence is filed with the bill, and expresses distinctly the views of both the complainant and defendant, as to their construction of the act of 1858, creating the office of Inspector General of grain, and the duties which it imposed on the defendant as Inspector General. The complainant then alleges, that being unable to obtain the legal weight of the wheat, he was compelled to accept it and pay the price stipulated, in accordance with a pre-existing usage' which had prevailed prior to the passage of the act creating the office of Inspector General of grain, and this was done without the agency of the defendant, or his assistants, as it related to the weighing and the measuring of the same.
“ThecomplainantfurtheT alleges, that he was then arrested, at the instance, and by the procurement of the said Inspector General, Frazier, on a criminal charge, upon the information of said defendant, before Mr.- Hayward, a justice of the peace for the city of Baltimore, as appears by the proceedings, by the said magistrate, in exhibits duly certified and made a part of the bill. Pending which, and before a final judgment thereon, by said justice of tire peace, the complainant prayed that an injunction should be granted, and asked the interposition of the court, as a court of equity, to prevent the further prosecution of said proceedings by the defendant, and restrain-' ing him as informer, or otherwise, from instituting any further proceedings against the complainant in the premises, until a decision by this court.
“Upon the allegations and prayer of this bill, an injunction was issued on the 16th of July 1858. To this bill the defendant filed his answer on the 23rd of July, and protesting against the jurisdiction of the court, answers: That a contract was entered into, ón or about the 19th of JuJy 1858, between the complainant and William S. Pawson, for the purchase of a lot of wheat, as stated in the complainant’s bill, and does not deny the averments of the same in reference to said contract. The defendant, as Inspector General of grain for the city of Baltimore, admits, that he received notice that the wheat was ready to be weighed, in obedience to the law in such cases made and provided, and that in his official capacity, as Inspector General, was then called on to measure and weigh the same, and was notified where it was deposited, and that he informed Pawson and the captain of the vessel, who brought the wheat from the Eastern Shore of Maryland, that after said wheat was measured, (it having been previously inspected,) he would weigh the same by weighing one bushel out of every sixty, or at that rate, and would not weigh the same in any other manner. The respondent, further answering, states,, that the wheat in question was inspected in strict conformity to the law regulating the same, and that at no time, as the letters filed with the bill show, did he refuse to perform the duties required of him by the law, as Inspector General of grain, either to weigh the wheat, or that he was in default in offering to measure the same, but on the contrary he asserts, that he then, acting in his official capacity, offered to have the wheat measured and weighed, according to the requirements of the-act of 1858, regulating the inspection of grain in Baltimore city, and in accordance with the usage and custom operating in said city, at the time and for the period of fifty years prior to the passage of said act. The answer then denies that the complainant was unable, by any default of the Inspector General, or his assistants, to obtain the legal weight of said; wheat; that the complainant did accept the said wheat and pay the price stipulated for the same, in accordance with the-prevailing usage, and without the agency of the respondent,, or any of his assistants, but that the complainant accepted said wheat under the aforesaid usage, in plain violation, and in open defiance of the law regulating the inspection of grain in. the city of Baltimore. The respondent, further answering,. alleges, that after the correspondence between the complainant and himself, and the former had refused to have said wheat weighed and measured by the officers duly appointed for the purpose, in the manner pointed out in respondent’s letter of July 9th, that the complainant did then proceed to measure said wheat, in precisely the same manner as the respondent had proposed orall}- and in writing to do. The answer also denies, that the business of the complainant, and other persons engaged in the purchase of grain, ha.s been injured or prevented, by the refusal of the respondent, or his assistants, to perform their official duty. The respondent then admits, that regarding the course of the complainant, in having the wheat measured and weighed without the agency of the Inspector General, as a direct violation of the law regulating the same, that he instituted, suit against the complainant and his co-partner alone, to recover the penalties provided by said law, and denies that he seeks any personal benefit as informer, but being the proper officer, appointed by the Governor of tbe State, to carry out the law referred to, it was his duty, as an officer, to carry out and execute ihe law; that he, therefore, gave notice to the proper tribunal, of the violation of law, upon which the suit against the complainant was instituted, in the name of the State of Maryland, and which was pending before a magistrate or tribunal competent to determine the rights of the parties, when the injunction in this case issued, and denies that the complainant is remediless at law, but that the magistrate is competent to hear the case and impose the fine. After thus answering the bill the respondent submits, that he lias taken the oath prescribed under the act of 1858, and filed a bond as Inspector General of grain, in the penalty of $10,000, for the faithful performance of the duties of his office, and that he has, and is always ready, faithfully to perform his duty; and denies, finally, any dereliction of his official duties, as charged in the bill; but that, assuming the allegations of the complainant to be true, yet the complainant has an ample legal remedy, and is not entitled to the equitable intervention of this court, and also on the official bond of the respondent, for any damage sustained by reason of the neglect of the respondent, in the discharge of his official duties, and that nothing in the complainant’s bill can justify his violation of a law of the State.
“Upon this statement of the case, taken from the bill and answer, I shall proceed briefly to state and decide the questions raised and discussed, with much zeal and ability, by the counsel on both sides.
“The first and most important objection to the act of Assembly of 1858, regulating the inspection of grain, is, that the law js unconstitutional, and therefore inoperative. In this I cannot concur. The Legislature, under the Constitution of this State, have full power to regulate, for purposes of revenue, trade within the State. Indeed, from the earliest period of our history, it will be found that inspection laws have been passed and enforced without any doubt or question as to the power of the Legislature, under the old or new Constitution, to enact the same. Acts regulating the inspection of tobacco, of flour, fish, guano, &c., and imposing penalties for the viola-' tion of all or any of them, have been, and are now, recognized and executed without any objection; and no principle of constitutional law can be invoked, to deprive the Legislature of the power to define and regulate the mode and manner in which trade and commerce, within the State, shall be governed, where the rights of the citizen are not invaded, nor is he deprived of those secured to him by the Constitution itself, such as trial by jury, habeas corpus, and other cardinal privileges embraced in the organic law. In examining the act, entitled, ‘An act to provide for the inspection, measuring and weighing of grain in the city of Baltimore,’ passed March 9th, 1858, under which these proceedings have occurred, and the constitutionality of which is now denied, I find the same to be, in my judgment, strictly in accordance with the powers vested by the Constitution in the Legislature, or not withheld from it by positive prohibition.
“It has been conceded on both sides, (and could not have been doubted,) that laws regulating trade and commerce within the State, are not only constitutional, but obviously necessary and proper, for the objects of revenue and uniform inity, and tbe present act is so regarded, except so far as the 8th section may be considered objectionable. But my construction of the whole, taking its sections together, does not enable me to see any defect in this regard, even in the 8th section. This 8ih section provides, that where the purchaser refuses to receive the grain, without complaint as to the measure or weight, and it shall appear that six hours have passed since the sale took place, and no complaint has been made to the seller or his agent within that time, then it shall be presumed, unless clearly proved to the contrary, that the bulk does correspond with the sample, and the purchaser ‘shall be compelled to pay all damages and charges that may have arisen by reason of his delay or refusal to comply with his contract; to be assessed and determined by the said Inspector General.’ Now, I do not regard this section as depriving tbe party interested of a full trial before a jury, if desired; for although the inspector general may determine and assess the damages and charges, yet upon the party’s refusal to pay them he could only be made to do so by a suit at law, before the proper tribunals of the State, where the duties, authority and power, of the Inspector General, and the rights and liabilities of the parties to the particular contract of sale or purchase, would be adjudicated. The 8th section does not say that the assessment of the Inspector General shall be final, but if it did, I am of opinion that all the questions arising properly in the determination of the suit, between the seller and the purchaser of wheat or grain, under this section, could bo distinctly raised and adjudicated, as in other cases of contract or dealing between man and man, upon the general principles of the common law, and the decisions in this State. But if I am wrong, and this section is vicious on the ground of its unconstitutionality, it has been conceded, that if the remaining sections of this law are good, and can be carried out., the law will be so interpreted as to meet tbe benefit, or remedy the evils, the Legislature had in view by passing it. And regarding this law in its general object and provisions, as not only constitutional, but essentially necessary and beneficial to the revenue and trade of the State, I shall so adjudge; and pass now from this objection to the act, to the-remaining questions upon which my decision must rest.
“The jurisdiction of this court as a court of chancery is denied, over the proceedings of the magistrate in this case.
“1st. On the ground that they were criminal in their form and character, and, as such, not within the power of a court of equity to arrest or discontinue by means of an injunction.
“Unquestionably, no principle is better settled in England or this country, than that a court of equity will not, indeed, cannot, interfere with criminal courts and the punishment of crime. The sources of equity jurisdiction are, it is true, large and comprehensive, embracing every degree of fraud, mistake, accident and misrepresentation, and affording to the party relief, where the strict rules of common and statute law could not. But over criminal jurisdiction it has never sought to extend its arms. Some of the ancient writers on English law have referred to one or two cases, where proceedings under •‘informations, in the name of the crown,’ have been enjoined; but it will be found, on examining those cases, that the judges regarded the action as in the nature of a civil suit, and, on this ground alone, English chancellors have assumed equity jurisdiction. ' In this country, however, the settled judgment of the courts and jurists is, that in no criminal case will a court of chancery interfere; and Mr. Justice Story, most eminent as a judge and author, in the 2nd volume of his Equity Jurisprudence, sec. 893, says, -'They (the courts of equity) will not interfere to stay proceedings in any criminal matters; they will not grant an injunction to stay proceedings on a mandamus, or an indictment, or an information, or a writ of prohibition; but this restriction applies only to cases where the parties seeking redress by such proceedings are not the plaintiffs in equity, for, if they are, the court possesses power to restrain them, personally, from proceeding at the same time upon the same matter of right for redress in the form of a civil suit and a criminal prosecution.’ See, also, Eden on Injunctions, 42. And in sec. 959, (b.,) this distinguished jurist also says: ‘It may be remarked in conclusion, upon the subject of special injunctions, that courts of equity constantly decline to lay down any rule which shall limit their power and discretion, as to the particular case in which such injunctions shall be granted or withheld: and there is wisdom in this course, for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights and redress wrongs.’
“Adopting, as I now do, the doctrine and views of Judge Story, so well expressed,let me enquire into the character and circumstances of this particular case, as it is presented by the papers before me.
“The proceedings before the magistrate to recover the penalty sued for by the respondent, Frazier, were not in the nature of a mandamus, or an indictment, or writ of prohibition, these being public writs, issuing from the crown or State, to enforce a public law, or punish its violation — the mandamus; t,o compel a public officer to perform his duty, and the other writs for purposes of general right. Is then this, which the respondent in his answer terms a suit to recover the penalty, provided by the act, such a proceeding before the magistrate as would place it within the definition of an ‘information, which is said by the law writers to be an accusation or complaint exhibited against a person for some criminal offence, either immediately against the king or against a private person, which, for its enormity or dangerous tendency, the public good requires should be restrained or punished? It differs from an indictment., principally, in this, that an indictment is an accusation found by the oath of twelve men; whereas, the information is only the allegation of the officer of the Crown who exhibits it. See 4 Bl. Corn., 307; Wharton’s American Law, 97; Jacob's Law Dictionary. In- this country, as Mr. Wharton states, ‘informations,’ as understood and used in England, are not in force, and very rarely in use. I am not able, therefore, to bring my mind to the conclusion, that a suit for the recovery of a penalty prescribed in a civil statute, like that before me, is, in its nature, an ‘information/ and criminal in the sense contended for by the respondent.. It is, 1 think, a mere suit between parties, the one having authority by law to sue for, as informer, and recover to his own use the pert-ally; and the other, subjected by the same law, to its payment for violating any of its provisions. It is not a penalty imposed as a punishment for criminal acts, and to be prosecuted for as such; if no person should sue for, as informer, the penalty under this act, there would be, in fact, no violation of the law punishable at all. Suits are often brought in the name of the State, and indeed most of the bonds given to secure, in the orphans court and elsewhere, the faithful performance of fiduciary officers, are taken and sued upon in the name of the State, but this does not deprive the proceeding of its real character, that of a private civil suit or proceeding, for the benefit of the parties to it. If, however, I had any doubt on this subject, the opinions of the Court of Appeals have, I think, removed them, and must now control me in my decision of this point, making it unnecessary to examine the English and American authorities referred to in the argument. In the case of Day vs. The State, 7 Gill, 321, decided in 1848, the Court of Appeals rule, ‘that actions of debt, instituted before a justice of the peace, for the recovery of fines imposed by the act of 1846, in reference to lotteries, are civil actions, and not criminal cases or prosecutions l This decision was practically sustained six years subsequent, in the case of The State vs. Mace, 5 Md. Rep., 337. Although in these two cases, the one decided before the new Constitution was formed, and the other afterwards, the question is presented under a different state of facts, yet, 1 think, it will be found, that the Court of Appeals have adjudged suits before a magistrate for the recovery of fines or penalties, imposed by law, to be civil and not criminal proceedings; and testing the present case- by the rule thus established, I cannot distinguish it from the penalty incurred and sued for under the lottery acts. The 15th section of this grain act provides, that no person, except those appointed under the act, shall inspect, weigh or measure any grain, and imposes a penalty of twenty-five dollars for thus violating the law; to be recovered in the name of the State, for the use of the informer, before any justice of the peace in and for the city of Baltimore. And the lottery act of 1846, contains the same provisions,, differing only as to the amount of the pen-ally, and enacting that the same shall be recovered before a justice of the peace, in an action of debt, &c. And I find that other acts, regulating the inspection of merchandize, such as flour, tobacco, fish and guano, contain the same provisions.If I am right, therefore, in my understanding of the decisions of the Court of Appeals referred to, then this proceeding must be regarded as a civil proceeding, or, as the respondent, in his answer, has correctly called it, a suit to recover a penalty, in which the State has no interest,- and the recovery of which, in no way, calls in action the criminal code of the State, or its' tribunals of criminal jurisdiction.
“This then being so, the next question recurs,-is there such a complete legal remedy for the complainant in this case, as will prevent a court of chancery from interfering? I think there is not. The magistrate’s judgment, it is true, could be reviewed by the Court of Common Pleas, or the case tried dé novo there, bat from this judgment of the Common Pleas no appeal would lie to the court of final resort. The injunction issued in this case restrains the respondent only until the Court of Appeals shall hear and determine the duties and rights of the parties, under a proper construction of this law, as I take it for granted, that in any event,- an appeal will be taken to the next term of that court, from my decision. Looking then to the remedy before the magistrate, or the Common Pleas, as not being a complete legal remedy, f cannot, on this ground, dissolve the injunction heretofore granted. If in error I shall be soon corrected, if right, as soon affirmed:
“It now becomes necessary for me, as a chancellor, to ex* press my opinion upon the proper and true construction of this law, for the inspection of 'grain, and 1 shall briefly do so:
“Prior to the passage of this act,- a usage prevailed, existing for many years, (the answer says fifty,-) by which one bushel of wheat in sixty bushels was weighed,- and in' this way the index of weight of the wheat was determined, as between the buyer and seller. Upon representations, no doubt, of the inequality, uncertainty, and injustice sometimes, of this mode of weighing wheat, the Legislature, at its last session, passed the act in question, whose object, was, as T, understand it,- to provide a uniform and just mode of ascertaining the weight of wheat, and’the inspection and measuring of grain, and to place between the buyer and seller — the fanner and the gentlemen of the Corn Exchange — an impartial officer of the law, with duties defined; and their faithful performance secured by a bond and an oath. Before the passage of this act, wheat had’ been weighed according to the usage named, but the act inaugurated'a new mode, and inthe fifth section declares, that the said inspectors ‘shall also carefully weigh and determine the weight,’ (not of wheat, which might have left it doubtful whether this did not leave a discretion to weigh, as by the usage, one bushel in sixty,) ‘but shall determine the weight of all wheat that shall be inspected by them; or carried to the said city for. sale, and for this purpose shall procure, at reasonable and proper cost, proper weights and scales to effect the-purpose herein contemplated,’ &c. Now I confess, afler much reflection, my inability to give to them any other meaning than these words import. Before the passage of the law all vrfieat had not.been weighed; by the law it is made imperative, as a duty of the inspector, to remedy this, and weigh alt wheat brought to Baltimore for sale, and then provides hinr witli the apparatus or scales for performing this duty. But it has been ingeniously argued, that the Legislature intended, by this language, only to indicate the old mode of weighing one-bushel in sixty. If so, why furnish him with scales, after requiring all wheat to be weighed? The evil complained of, under the old system, was the loss sustained by the seller and' farmer, as very often one bushel weighed would not correctly, as it could not, give the true weight of the bushels not weighed.To prevent, therefore, any loss or injustice, the Legislature-adopted the only plan that could attain this object, and that was, providing, when required by the seller and purchaser, ■ for the weight of all the wheat. Now Tagree, that where the" words of a statute and its meaning are doubtful, well established usage can be invoked to explain ot interpret it, but where the language of the law is plain and explicit, then the’ court must construe it by its terms, and not by usage or custom. There would have been, in fact, no necessity.for- this*law, or no benefit in it, if the usage, which before had prevailed in the sale and purchase of wheat, had operated with equal justice upon the dealings of both parties. For I find., on examining carefully the sections of this act., that it looks t.o the establishment of an equal and impartial and disinterested tribunal for the inspection thereafter, and the measuring and weighing of grain in the city of Baltimore, guarding, as far as possible, the rights of both seller and buyer, and intending to introduce a new system in the place of the old. If the purchaser had been satisfied with the old system, the farmer had not, and to establish a better one was doubtless the purpose of the Legislature. If, however, the view and the position assumed by the respondent, the Inspector General, be the correct one, and the construction given to the law by him be the true construction, the act, for all purposes, except as a revenue law, (and that would be small,) was unnecessary, and should not have been passed, because the Inspector General and his assistants do no more, under it, than was done before its enactment. .In other words, it creates an office with no duties to perform. On the whole, I cannot adopt such reasoning; and regarding the-law as a beneficial and just act, I shall construe it by its own words and carry out its obvious intent. All means all, and nothing less.
“With these impressions and views, thus briefly expressed, with but little time for a critical examination of all the authorities, I can see no grounds for a dissolution of this injunction, which now prevents a multiplicity of suits and further litigation, until the highest court in our State shall finally expound this law, and give us a guide for our steps and a lamp for our path. The continuance of the injunction can occasion no wrong to the respondent; its dissolution may subject the complainant to great inconvenience and loss. Higher considerations than mere individual rights or wrongs are, I think, involved in this case, and, in my judgment,, the shortest and most satisfactory course should be now adopted, to have this Jaw interpreted and the duties of the Inspector General of grain defined and performed on the one hand, and the rights and liabilities of a large and most respectable class of merchants and farmers determined by the highest authority in the State. If I am wrong, therefore, in my present decision, the court of the last resort in this State, will soon be able to correct my error. I believe, however, I am right, and shall continue this injunction.”
Frpm the order overruling the motion to dissolve, and continuing the injunction, passed in accordance with this opinion, {he defendant appealed.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
