State v. Strauss

Miller, J.,

delivered the opinion of the Court.

This case is brought up by the State, as upon writ of" error, to have reviewed a judgment óf the Criminal Court of Baltimore City, sustaining a demurrer to an indictment and discharging the accused. The indictment charges, the defendant with disobedience of an order of the Board of Police Commissioners of the City of Baltimore, issued on the 22nd July, 1877, whereby the said Board “judging that the public peace and tranquillity required the same, and having lawful authority so to do, and in pursuance of the laws of said State in that behalf, ordered any and all bar-rooms, drinking houses, and all other places where liquor is usually sold in the City of Baltitimore, to be temporarily closed, that is to say, to be closed until further notice.”

The true and only source of authority for an order of' this character, is found in that part of the Act of 1867, ch. 367, which amends and re-enacts section 818 of Art. 4 of the Code of Public Local Laws, and declares that “ the said Board of Police Commissioners are authorized and empowered, whenever in their judgment the public peace and tranquillity may require, to order the closing temporarily of any and all bar-rooms, bars, drinking houses, and liquor shops, and all other places where liquor is. usually sold in the City of Baltimore, and forbid the selling and furnishing of liquor thereat, and any proprietor or keeper, or other person for such proprietor or keeper of any such drinking house, place or places where liquor is usually sold, who shall refuse or fail to obey such order of said Board of Police Commissioners passed in pursuance thereof, or who shall sell or furnish liquor from, any such place or places during such period, as said Board shall so forbid shall be guilty of a misdemeanor, and it. shall be the duty of every officer of police, policeman and detective who may be cognizant of any violation of this-section, to report the same to the grand jury of the City *297 of Baltimore.” It has been intimated in the brief of counsel for the defendant in error, that it is a grave question, whether the Legislature could confer such a power upon this Board of Commissioners, but we cannot entertain a doubt upon that subject. When this Board was first organized, the law creating it (Act of 1800, ch. 7,) was subjected toa most severe and exhaustive examination and assault, and the validity of all its provisions was vindicated and sustained by a most able and elaborate judgment of our predecessors. 15 Md., 376 . By that Act it was provided in general terms that it should be the duty of this Board of Police to prevent crime, arrest offenders, protect the rights of person and property, guard the public health, and preserve the public peace within the limits of the City of Baltimore. That part of the Act of 1867, which we have cited is but a legitimate extension of their powers granted for the purpose of attaining more effectually the same great objects, the prevention of crime, and the preservation of the public peace, and the only question we have now to decide is, does it authorize an order by the Board in the terms and to the effect of the one set out in this indictment? It has been argued that as the chief design of this clause of the Act was to prevent crime and preserve the public peace it should be construed as remedial statutes are construed. But it also contains penal provisions. It makes acts done at certain times unlawful and criminal, which at other times are lawful and authorized. The selling of liquor in the City of Baltimore has not been prohibited by legislation nor declared unlawful, but on the contrary it is licensed and sanctioned by law. How if the summary and repressive measures which this section of the Act authorizes, do not, when considered in connection with its general purpose, require it should receive the strict construction which the Courts apply to penal statutes, it is safe to say they impose upon it the construction which belongs to like grants of legislative *298 power to municipal corporations, and that the validity of this order is to be determined by the same rules by which the validity of municipal ordinances passed under such grants are determined. And in respect to these the Courts adopt a strict rather than a liberal construction. Thus the Supreme Court in Minturn vs. Larue, 28 How., 436 , have said, “it is a well settled rule of construction of grants by the Legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the Act, or derived therefrom by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the Legistature must be resolved in favor of the public. This principle has been so often applied in the construction of corporate powers, that we need' not stop to refer to authorities.” The same general rule is laid down in 1 Dillon on Mun. Corp , sec. 55, and in sec. 250 notice is taken of the different forms of charters, some of which, without any specific enumeration of the purposes for which by-laws may be made, contain a general and comprehensive grant of power to pass all such as may seem necessary to the well being and good order of the place, while others authorize the enactment of by-laws in certain specified cases, and for certain purposes, and after this enumeration, contain general provisions that the corporations may make any other by-laws or regulations necessary to their welfare and good order not inconsistent with the Constitution or laws of the State. And “this difference” says the author, “ is essential to be observed, for the power which the corporation would possess under what, for convenience, may be termed the general welfare clause, if it stood alone, may be limited, qualified, or when such intent is manifest, impliedly taken away, by provisions specifying the particular purposes for which by-laws may be made. It is clear that the general clause can confer no authority to *299 abrogate the limitations contained in special provisions. When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases, and to the extent, as respects those matters, allowed by the charter or incorporating Act; and the power to pass by-laws under the general clause, does not enlarge or annul the power conferred by the special provisions in relation to their various subject-matters, but gives authority to pass by-laws reasonable in their character, upon all other matters within the scope of their municipal authority, and not repugnant to the Constitution and general laws of the State.” Row, while in other instances, powers for certain purposes have been conferred without limitation and in general terms, on this Board of Police, we have here not only an express grant of power for special purposes, hut one in which the Legislature has prescribed the mode and limited the extent of its exercise. In fact from the very nature of the power itself, it would he very strange if its exercise had uot been limited and restricted in some way. In so far as the degree of necessity, and the occasions on which it shall be exerted are concerned, the law has unquestionably made the Police Board the exclusive judges. Over that the Courts have no power of revision, but it may not be out of place to remark that the events which took place at or about the time this order was issued, imperatively required the Board to exercise this power. But whenever they exercise it the law provides they shall order these places to be closed only “ temporarily,” and in the penal provision which immediately follows it is made a misdemeanor to disobey the order “ during such period as the said Board shall so forbid.” If any doubt or ambiguity rests upon the use of the term “temporarily ” in one part of the section, it is removed by the word “period,” in the subsequent part. Reading the whole clause, and giving to the words used, their ordinary and accepted meaning and import, it seems *300 to us plain the Legislature has declared that these orders shall operate not only for a short, but a definite interval or portion of time, to be specified on their face, and we are all of opinion that an order which, by its terms, is to operate “ until further notice” is unauthorized. The Attorney-General in his brief, has presented with great ability and force, many suggestions and reasons why it would better insure the public safety, and more readily quiet public apprehension and alarm, to exercise the power in the way in which the Board proceeded, and then after the necessity had passed away to revoke the order by a separate act, than to prescribe in tbe first instance a definite time for the operation of the order, but we are unable to find any legislative sanction for that mode of procedure. It is easy to perceive that an order fixing a definite time for its continuance will operate less harshly, and inflict less injury upon those against whom it is directed, than one of uncertain and indefinite duration, and this may have influenced the Legislature in imposing the limitation. But whatever may have been the motives of the law-makers, we find .the law so expressed and have no power to change it. Nor will the construction we have found ourselves compelled to adopt, in any wise impair the efficiency of the power, for if the necessity and danger shall not have passed within the period specified in the order, it can be renewed, and if they shall cease before, it can be revoked.

(Decided 27th June, 1878.)

It follows P'rom the views thus expressed, there was no error in the judgment of the Criminal Court, in sustaining the demurrer to the indictment, and discharging the defendant, and it must therefore be affirmed.

Judgment affirmed.