Abell v. Secretary of State

Barnes, J., delivered the opinion of the Court. The principal question in this appeal is whether or not Chapter 617 of the Laws of 1963, or a part of that Act, providing for the gradual and eventual total abolition of slot machines by July 1, 1968, could lawfully be referred to a vote of the electorate of Maryland at the general election to be held on November 5, 1968, under Article XVI of the Maryland Constitution upon petitions filed on May 31 and June 26,1968. Chapter 617, which was introduced into the General Assembly of Maryland as House Bill 475, has the following title: “AN ACT to add new Section 264B to Article 27 of the Annotated Code of Maryland (1957 Edition and 1962 Supplement), title ‘Crimes and Punishments,’ subtitle ‘Gaming,’ to follow immediately after Section 264A thereof, and to be under the new subheading ‘Slot Machines,’ defining the term ‘Slot Machines,’ and providing that it shall be unlawful to locate, possess, keep, maintain or operate such machines within this State, providing certain exceptions as to those counties and municipalities wherein such machines were licensed prior to the effective date of this Act, and providing, as to such counties and municipal ³²¹ ities, a limitation upon the maximum number of such machines that may be located, possessed, kept, maintained or operated in any place of business, or in any building, or upon any premises and further providing for the gradual and eventual total abolition by July 1, 1968, of all slot machines within this State, making non-compliance with the provisions of this Act a misdemeanor, and relating generally to slot machines and to their location, possession, keeping, maintenance or operation within this State.” Section 1 contains the usual enacting clause and sets forth the new Section 264B under the new subheading “SLOT MACHINES.” The first paragraph of the new Section gives the definition of a slot machine. Then follow three subdivisions with Roman Numerals I, II, and III.

Subdivision I provides that it shall be unlawful to possess, maintain or operate any slot machine in Maryland except as provided in subdivision II. Subdivision II contains three further subdivisions (A), (B) and (C). II (A) contains four additional subdivisions (1), (2), (3) and (4). We will set out II (A) and (B) in full: “II.

In those counties and municipalities of this State wherein the County Commissioners or municipal authorities thereof, prior to the effective date of this Act, licensed such slot machines for operation therein. “(A) After July 1, 1965, it shall be unlawful for any person, firm or corporation to conduct any place of business wherein is located or kept, other than in a building or upon any premises used solely for storage, a number of slot machines in excess of the maximum numbers hereinafter set forth, and it shall be unlawful for any person, firm or corporation to possess, keep or maintain, other than in a building or upon any premises used solely for storage, or operate within any one building, or upon any premises, as hereinafter defined, a number of slot machines in excess of the following maximum numbers of such machines: “(1) At any time after the effective date of this ³²² Act, a number equal to the number located, kept, possessed, maintained or operated in such place of business, building or premises as of March 1, 1963. “(2) At any time after July 1, 1965, a number equal to the number located, kept, possessed, maintained or operated in such place of business, building or premises as of January 1, 1963, or thirty (30) machines, whichever shall be the lesser number. “(3) At any time after July 1, 1966, a number equal to the number located, kept, possessed, maintained or operated in such place of business, building or premises as of January 1, 1963, or twenty (20) machines, whichever shall be the lesser number. “(4) At any time after July 1, 1967, a number equal to the number located, kept, possessed, maintained or operated in such place of business, building or premises as of January 1, 1963, or ten (10) machines, whichever shall be the lesser number. “(B) After July 1, 1968, it shall be unlawful for any person, firm or corporation, whether as owner, lessor, lessee, licensor, licensee, or otherwise, to possess, kept, maintain or operate, or have in or upon any place of business, building or premises for any purpose any slot machines whatsoever.” II (C) defines “premises.” Ill provides that violation shall be a misdemeanor, with punishment by a specified fine or imprisonment or both. Section 2 of Chapter 617 provides that the provisions of the Act are not intended to apply to pinball machines if they do not permit any compensation or reward beyond an automatic replay of a game or games mechanically provided upon the machine. Section 3 sets forth the usual severability clause. Section 4 repeals all inconsistent laws and Section 5 provides that the Act “shall take effect on July 1, 1963.” The Act was approved by the Governor on April 30, 1963.

As originally introduced as House Bill 475, Chapter 617 provided for total abolition by July 1, 1966, instead of July 1, 1968. ³²³ II (A) originally had the date July 1, 1963 instead of July 1, 1965. In the first line of II (A) (2) the date was July 1, 1963 instead of July 1, 1965; in the first line of II (A) (3) the date was July 1, 1964 instead of July 1, 1966; in the first line of II (A) (4) the date was July 1, 1965 instead of July 1, 1967; and, in II (B) the date was July 1, 1966 instead of July 1, 1968. The extended times were inserted in the original bill by amendment so that the gradual and eventual abolition of slot machines was extended by amendment for an additional two years. There was an appropriate amendment to the title of the Act to indicate that the gradual and eventual total abolition was by July 1, 1968, rather than by July 1, 1966, as originally set forth in the title.

Section 2 in regard to pinball machines was also inserted by amendment and the following sections renumbered. Section 2 of Article XVI of the Maryland Constitution providing for the referendum provides in relevant part : “Section 2. When laws to- take effect; effect of filing' of referendum petition. “No law enacted by the General Assembly shall take effect until the first day of June next after the session at which it may be passed, unless it contain a Section declaring such law an emergency law and necessary for the immediate preservation of the public health or safety, and passed upon a yea and nay vote supported by three-fifths of all the members elected to each of the two Houses of the General Assembly; provided, however, that said period of suspension may be extended as provided in Section 3 (b) hereof. If before said first day of June there shall have been filed with the Secretary of the State a petition to refer to a vote of the people any law or part of a law capable of referendum, as in this Article provided, the same shall be referred by the Secretary of State to such vote, and shall not become a law or take effect until thirty days after its approval by a majority of the electors voting thereon at the next ensuing election held throughout the State for Members of the House of Representatives of ³²⁴ the United States.

An emergency law shall remain in force notwithstanding such petition, but shall stand repealed thirty days after having been rejected by a majority of the qualified electors voting thereon; * * (Emphasis supplied.) Section 3 of Article XVI provides as follows: “Section 3. Number of signers necessary for petition; effect of petition signed by more than one half required immber. “(a) The referendum petition against an Act or part of an Act passed by the General Assembly, shall be sufficient if signed by three per centum of the qualified voters of the State of Maryland, calculated upon the whole number of votes cast therein for Governor at the last preceding Gubernatorial election, of whom not more than half shall be residents of Baltimore City, or of any one County; provided that any Public Local Law for any one County or the City of Baltimore, shall be referred by the Secretary of State only to the people of said County or City of Baltimore, upon a referendum petition of ten per cent of the qualified voters of said County or City of Baltimore, as the case may be, calculated upon the whole number of votes cast therein respectively for Governor at the last preceding Gubernatorial election. “(b) If more than one-half, but less than the full number of signatures required to complete any referendum petition against any law passed by the General Assembly, be filed with Secretary of State before the first day of June, the time for the law to take effect, and for filing the remainder of signatures to complete the petition shall be extended to the thirtieth day of the same month, with like effect.” On May 31, 1968, petitions in proper form were filed with the Secretary of State containing signatures in excess of a figure representing one and one-half-per cent of the required qualified voters not more than one-half of whom were residents of ³²⁵ Baltimore City or of any one County, to refer the entire Chapter 617 to the electorate at the next general election, i.e., in November, 1968. On June 26, 1968, the remaining number of required signatures were filed with the Secretary of State. On the same dates petitions with the required number of signatures were filed to refer designated portions of Chapter 617 (including the final phase-out provision).

Each of the petitions contained a sufficient number of apparently valid signatures to suspend the operation of a referable law. The Secretary of State refused to refer the Act or any portion of it, on the ground that the petitions were filed some five years too late, and notified J. Franklin Abell, one of the appellants, as president of the Maryland Local Option Association (the Association which had filed the petitions) by a letter of June 26, 1968, of his decision. Mr. Abell and four others, as taxpayers, voters and two as officers of Maryland Local Option Association filed a petition for the issuance of a writ of mandamus and for other relief in the Circuit Court for Anne Arundel County on June 26, 1968, against the Secretary of State alleging the relevant facts and praying that the writ of mandamus issue commanding the Secretary of State (1) to certify the petitions to refer the entire Act, (2) to refer a part of the Act, and (3) to issue an interlocutory order commanding the Secretary of State to refer both the entire Act and a part of it at the next election in the event the Circuit Court “shall find it necessary to take the matter raised by this Petition sub curia for a period of time subsequent to July 1, 1968, the effective date of the said Chapter 617 of the Acts of 1963.” The Secretary of State filed a demurrer on the morning of June 27, 1968, on the ground that the petitions were filed five years too late and also alleged that the petition for the writ of mandamus should be dismissed. A hearing on the demurrer was held before Judge Paul T. Pitcher.

After having heard the arguments of counsel for the respective parties, Judge Pitcher stated: “Alright, I have heard enough, Gentlemen, on this. For the purposes of the preliminary argument on ³²⁶ whether or not we want to stay the effect of this thing on July 1st, Mr. Noonberg, [Assistant Attorney General representing the Secretary of State] I am going to overrule your demurrer. However, that doesn’t foreclose the whole matter. But I want to get on with the argument on the merits of the matter.” Judge Pitcher then heard further argument.

At the conclusion of argument, Mr. Noonberg stated: “If Your Honor please, I would like to procedurally mention that if Your Honor prefers we would at this time, we could move for summary judgment in favor of the Secretary of State on the merits, or we could, we rely on our demurrer which raises the issue also on the merits, which ever Your Honor prefers. I know that the time gun here is a pressure that the petitioners are suggesting, and we would submit which ever way Your Honor wants us to handle it. If Your Honor finds that the petition should be dismissed, the court could do so either on a demurrer or on a motion for a summary judgment which we would be happy to file. “The Court: Mr. Noonberg,