Shafer v. Mumma

Le Grand, C. J.,

delivered the opinion of this court.

This is an action of trespass and false imprisonment, instituted by the wife of George Shafer, whilst a feme sole, against the appellee.

To the declaration the defendant pleaded specially, in substance alleging, that at the time of the alleged trespass, he was mayor of Hagerstown, duly elected and qualified, and that the appellant, Elmira, was brought before him and proceeded against under an ordinance of the mayor and council of Hagerstown, passed the 26th day of June 1858, the first section of which provides that the mayor, on information, shall “cause to be brought before him all vagrant, loose and disorderly persons, lewd women, keepers of bawdy houses, and persons having no visible means of livelihood, who may be found within the corporate limits of the town, and if found guilty, to fine such person not exceeding $20.”

*335 The pleas set out in full the Acts of Assembly and ordinances under which the defendant, as mayor of Hagerstown, justifies the trespass and imprisonment complained of.

By the 4th section of the Act of 1823, ch. 155, entitled, an Act “to alter and change the name of Elizabethtown, in-Washington county, to Hagerstown, and to incorporate the same,” the moderator and commissioners of Hagerstown are-authorized and empowered to provide by ordinance “for taking up, fining, or committing to the work-house in Hagerstown, all vagrant, loose and disorderly persons, lewd women, keepers of bawdy houses,”' &c.; and by the 1st section of the-Act of 1847, ch. 198’, it is provided, that the mayor and council of Hagerstown shall have “all the powers and immunities heretofore granted to the moderator and commissioners of said town.”

A statement, of facts was agreed upon between the parties. From this it appears that the plaintiffs admit, that at the time of the alleged trespass, the defendant was acting as mayor of Hagerstown, having been duly elected and qualified; that the appellant, Elmira, was brought before him, charged with being a lewd woman, found within the limits of Hagerstown, and that, after hearing of witnesses, she was adjudged by him to be such, and fined accordingly. It is also admitted, on the part of the plaintiffs, “that the said Elmira was a lewd woman and public prostitute, but, well behaved on the streets of said town, and never known to disturb any person upon said streets, or at any other place.”

It thus appears that, under the statute law, the municipal authorities of Hagerstown had the right to pass the ordinance under which Elmira was arrested, &c., and also that it is an undisputed fact in the case, that at the time of the grievanceseomplained of, she was “a lewd woman and public prostitute.” These concessions would seem sufficient to answer conclusively the claim of the plaintiffs, and to constitute a full and legal justification for the conduct of the defendant in the premises. But it is said, on behalf of the plaintiffs, that 3ince the adoption of the present State Constitution, the mayos *336 of Hagerstown could not try and fine under the ordinance? because (he exercise of such power is but the exertion of the' judicial power, which, by the Constitution, is confided to certain specified classes of persons, and that the mayor of Hagerstown is not included in the enumeration.

This argument would be entitled to great weight, if we thought the power exercised by the defendant was, in the' sense of the Constitution, a part of the judicial power. But we entertain no such opinion. We regard it as but a part of the police power, as contradistinguished from the regular judiciary powers of the State. From time immemorial, a distinction has been observed between the two, both in England and this country. It would be next to, if not quite impossible, for a large city like Baltimore to preserve order within its-limits, preserve the streets free from interruption, indeed to-do most of the thousand things necessary to be done, to carry on its various and indispensable operations, if in every case it were a necessary preliminary that the offender should be regularly prosecuted by presentment, indictment, and trial. It has always been understood that, under the police power, persons disturbing the public peace, persons guilty of a nuisance, or obstructing the public highways, and the like of-fences, may be summarily arrested and fined, without any infraction of that part of the Constitution which apportions; the administration of the judicial power, strictly as such. We regard the power conferred on the corporation of Hagerstown, to summarily punish persons of the description the appellant, Elmira, is admitted to have been, as falling directly within the definition of a police regulation. She was punished for' an offence against the decency and morals of Hagerstown, and not against those of the State; she offended within the “corporate limits,”' and for such offence' she was made tm answer. This did not wipe out all responsibility for the of-fence to the dignity and sovereignty of the' State.

Considering the case stated to be one which shows, that-under no circumstances there can be any recovery in this action, it is unnecessary to examine the prayers, for it is evident *337 that if the facts admitted amount to a justification on the part of the defendant, that any prayer which contradicts that proposition, must be erroneous.

(Decided Oct. 9th, 1861.)

Judgment affirmed.