121 A. 32 | Md. | 1923
The appellant filed in the Circuit Court No. 2 of Baltimore City a bill of complaint alleging that he was engaged in the retail jewelry business at 107 North Gay Street, in Baltimore City, which property was condemned by the city to make room for "the proposed civic center," and in order that he might retain his trade and business, which he had established through much toil and effort, he had moved his stock and belongings to 314 West Baltimore Street, from which point he has conducted auction sales, as he had done at various times at his former place of business, said sales being conducted by a licensed auctioneer of Baltimore City; that the defendant, the Police Commissioner of Baltimore City, through his agents, has attempted to hinder, prejudice, molest and interfere with his business by threatening to annoy and disturb the peace of persons who may visit his jewelry store for the purpose of attending the "periodic auction sales" conducted by him; that on the 13th of March, 1922, the defendant, through his agents, arrested the plaintiff and charged him with violating city ordinance No. 684, approved March 3rd, 1922, and that he was held "for the action of the grand jury in $100 bond." After setting out the ordinance referred to, the bill further alleges that, notwithstanding said ordinance provides that "such sale at public auction of the *382 stock on hand of such merchant or merchants shall be held on successive days, Sundays and legal holidays excepted, and shall not continue for more than thirty days in all within the period of one year," the defendant, with knowledge of the above provision of the ordinance, ordered his arrest and threatened to interfere with his auction sales in disregard of his right to continue such sales for the period of thirty days from the date of the approval of the ordinance; that he is advised that the action of the defendant, based on said ordinance, tends to deprive him of the use and enjoyment of his property guaranteed to him by the Constitution of this State and the Constitution of the United States, and that said ordinance is unconstitutional and void (1) because it is contrary to section 1 of article 14 of the Constitution of the United States; (2) because it is contrary to article 23 of the Declaration of Rights, and (3) because the title of the ordinance is bad in that it does not sufficiently describe its subject as required by "section 29, article 3 of the Constitution" of this State and is misleading. The prayers of the bill are, (a) that "the validity of said ordinance may be determined"; (b) that the defendant, and those acting under him, may be restrained from interfering with the plaintiff in the conduct of his said auction business; (c) that the defendant and those acting under him may be restrained from interfering with the plaintiff's business "during the period from the date of the approving of the ordinance, to wit: March 3rd, 1922, and until thirty days thereafter," and (d) for general relief.
The defendant demurred to the bill, and this appeal is from the decree of the court below sustaining the demurrer and dismissing the bill.
The ordinance in question, which is set out in the bill, is as follows:
*383"No. 684.
"An ordinance to prohibit the sale at public auction of any gold, silver, plated ware, precious stones, watches, clocks or jewelry.
"Section 1. Be it ordained by the Mayor and City Council of Baltimore, That it shall be unlawful for any person or persons or corporation to sell, dispose of, or offer for sale, in the City of Baltimore, at public auction, or to cause or permit to be sold, disposed of, or offered for sale, in the City of Baltimore, at public auction, any gold, silver, plated ware, precious stones, watches, clocks or jewelry, whether the same shall be their own property or whether they sell the same as agents or employees of others; provided, however, that this auction shall not apply to judicial sales or sales by executors or administrators nor to sales by or on behalf of licensed pawnbrokers of unredeemed pledges in manner provided by law, nor to the sale at public auction of the stock on hand of any person or persons or corporation that shall, for the period of one year next preceding such sale, have been continuously in business in the City of Baltimore as a retail or wholesale merchant of gold, silver, plated ware, precious stones, watches, clocks or jewelry; provided, further, that such sale at public auction of the stock on hand of such merchant or merchants shall be held on successive days, Sundays and legal holidays excepted, and shall not continue for more than thirty days in all within the period of one year.
"Section 2. Be it further ordained, That any person or persons or corporation convicted of a violation of the preceding section shall be fined the sum of $10.00 for the first offense and $20.00 for every subsequent offense. Each separate sale, at public auction, of an article or articles of gold, silver, plated ware, precious stones, watches, clocks or jewelry in violation of the preceding section shall constitute a separate offense hereunder.
"Section 3. And be it further ordained, That this ordinance shall take effect from the date of its passage."
The contentions of the appellant in this Court are, as stated in his brief, that the ordinance is unconstitutional and *384 void, "1. Because the object and content of said ordinance are not expressed or described in the title * * * as is required by section 221 of the Charter of the City (Weeks' ed.)," and "2. Because * * * it makes unreasonable and arbitrary class distinctions in violation of the Fourteenth Amendment of the Federal Constitution."
Section 221 of the Charter provides that "Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title." We said in Baltimore v. First M.E.Ch., 134 Md. p. 603: "The general rules of construction which govern in the interpretation of acts of the Legislature are applicable to legislative acts of a municipal corporation (State v. Kirkley,
In his second proposition the appellant does not claim that the subject-matter of the ordinance is not within the police power granted to Baltimore City, and he admits the power of the city to "regulate" the business of transient dealers in gold, jewelry,c.; that the judicial sales, sales by executors and administrators, and sales by licensed pawnbrokers of unredeemed pledges "do not come within the mischiefs * * * intended to be remedied by the ordinance," and that the exemption of such sales "from its provisions is a reasonable class distinction," but he insists that the ordinance "makes an arbitrary and unreasonable class distinction between those engaged in the jewelry business continuously for one year and those who have not been so engaged for that length of time."
The obvious purpose of the ordinance in question is to prohibitthe business of conducting auction sales of the articles mentioned, as distinguished from such sales by merchants, who have been continuously in business for the period of one year, of the stock on hand. In other words, while prohibiting auction sales of such articles by those who conduct them as a business, the ordinance permits merchants who have an established business of one year's standing to dispose of their stock on hand upon certain conditions.
In disposing of this branch of the case the learned court below said: "In drawing this ordinance its framers knew that common knowledge and experience shows, * * * 1. That a public auction sale is not the usual method of selling merchandise like that named in the ordinance. 2. That but two classes of persons sell such merchandise at public auction, viz.: (a) Reputable merchants, because, either retiring from business, or of a wish to reduce inventory, or of the need or wish to raise money more quickly than by sale in the ordinary course of business. (b) By merchants, not reputable, who would make sales at public auction from a desire to deceive and defraud the public, who often are itinerant merchants with but little, if any, financial responsibility, who go from place to place to make such sales and remain in each *388
place but a short time, leaving it in time to avoid being held civilly or criminally responsible for the fraud of such sales." Whether this is an accurate description of the classes of persons who sell merchandise at public auction it is not necessary for us to determine, but it is apparent that auction sales of the class prohibited may be attended with much greater risk to the public than the auction sales permitted upon the conditions named, and that the classification made by the ordinance is not an arbitrary one, but one that bears a reasonable relation to the object sought to be accomplished by it. In the case of Chicago, B. Quincy R.R. Co. v. McGuire,
Many other authorities might be cited in support of the ordinance, but those we have referred to are sufficient to show that it is not open to the second objection urged against it, and we must therefore affirm the decree of the court below.
Decree affirmed, with costs to the appellee. *390