Clark v. Harford Agricultural & Breeders' Ass'n

Briscoe, J., delivered the opinion of the Court. On the 24th of September, 1912, the Harford Agricultural and Breeders’ Association, a corporation, duly incorporated under the General Laws of the State, and the plaintiff below, filed the bill in this case, for an injunction to restrain the defendant Vm. L. Clark, the sheriff of Harford county, from interfering with the plaintiff corporation, or any of its officers, in the conduct of a race meeting being held at the time near Havre de Grace, in Harford county, and from arresting any person or persons engaged in taking bets or in book-making or in betting at this meeting. The application for injunction was set for hearing on the bill, and after argument by counsel for the plaintiff and defendant, an injunction was directed, on the same day to be issued, in accordance with the prayer of the bill.

By an agreement of counsel, filed in the case, it was agreed that the bill of complaint should be considered as amended by adding to the end of paragraph 11, the following: “And that in fact, the members of said Racing Commission did not take and subscribe the oath prescribed by section 6 of Article 1 of the Constitution. ⁶¹¹ The docket entries as set out in the record contain the following entries: Sept. 25, 1912. — Injunction writ issued and copy Court’s order attached. Process, sum’nd. Writ of injunction accepted by Wm. L. Clark, sheriff of Harford county, on the 25th of September, 1912.

On September 27, 1912. — Demurrer of defendant, filed. Same day. — Order filed to enter an appeal to the Court of Appeals from the order of the Court dated the 24th day of September, 1912, granting writ of injunction. Ho point, however, was made at the hearing in this Court upon the state of the pleadings, or the scope of the order for injunction, but as the decision of the case will ultimately turn upon the validity or invalidity of the Act of 1912, Chapter 132, and the validity of the Racing Commission, as constituted by the Act, we shall proceed to consider the questions of law raised on the record, and by the various contentions of the parties to the suit. The facts of the case appearing from the record, that are necessary to be stated for the purposes of this opinion, are these.

At the January Session, 1912, of the General Assembly of Maryland, an Act was passed (Chapter 132, Acts of 1912), the title of which is as follows: An Act to provide for the regulation, control and licensing of horse racing within Harford county, to create the Harford County Racing Commission and prescribe its powers and duties, to provide license fees for the conduct of horse racing within said county and to repeal sections 204, 205 and 206 of Article 27 of the Code of Public General Laws of Maryland of 1904, title “Crimes and Punishments,” sub-title “Gaming,” said section 206 having been amended by Chapter 127 of the Acts of the General Assembly of Maryland of 1906, so far as said sections apply to Harford county. It appears from the record and it is admitted by the pleadings in the case, that the plaintiff is a Maryland corporation and organized for the purpose of conducting, driving and running races and maintaining a race track in Har ⁶¹² ford county and other kinds of public exhibitions, not prohibited by law. It further appears that four members of the Racing Commission, named by the Act, accepted their appointment, and on the 10th of May, 1912, met and duly organized under the law. That one, Robert C. Richardson, named as a member of the Commission, declined to serve, but on the 2nd day of September, 1912, Lewis J. Williams was elected as his successor and has since that date acted as a member of the Commission; that James T. Jones was elected president, and Thomas C. Hopkins, was made secretary and treasurer of the Commission and are now acting as such officers, but in fact, the members of the Commission did not take and subscribe the oath prescribed by section 6 of Article 1 of the Constitution.

The bill avers that on the 20th day of May, 1912, the plaintiff applied to tire Racing Commission for a license to hold race meetings under the Act, and on the 14th day of August a license was granted it to hold meetings on the dates named therein. The bill further avers that the plaintiff, in pursuance of the permission and tire privilege granted by the license, and in preparation for the race meeting, purchased a large piece of land in the Second Election District of Harford County, and expended a sum in excess of eighty thousand dollars in preparing the land for the race meeting; that the meetings were opened on the 24th of August, 1912, and continued successfully until and including the 21st of September, 1912. The bill also avers that amongst other privileges sold during the meeting was the privilege to book-makers, of whom there are more than twenty,to conduct betting or pool-selling on the races, and the privilege was to continue during the thirty days of the meetings; that the owners of horses were induced to send their horses to the meetings by tire stakes and purses which were advertised by the plaintiff, and the privileges granted to the book-makers and others were valuable and brought revenues to the plaintiff because of the ⁶¹³ length of the meeting, and each, day of the continuance of the meeting’ is important in enabling the plaintiff to fill its engagements with the horse owners and renters of the privileges. By the seventh paragraph of the bill it is averred that for the privilege of conducting the meetings the plaintiff has paid to the said Racing Commission a large sum of money — - that is to say, the sum of forty-four hundred and seventy dollars ($4,470), and in addition thereto has paid to the Treasurer of Harford County the sum of twenty-four hundred and seventy-nine dollars and five cents ($2,479.05), the same being five per cent, of the gate receipts at the meetings up to and including the 21st day of September, as required by the Act, and the plaintiff has, in all respects, complied with the law and all other laws of the State of Maryland, and is entitled under the license to complete its meetings and to conduct its races and permit betting, up to and including the 30th day of September.

The bill then charges that the law officers of the State have advised the defendant, the Sheriff of Harford County, that the racing meetings of the plaintiff are illegally held, and that betting and book-making is illegally permitted upon its grounds, because the members of the Commission failed to qualify by taking the oath required by the Constitution of the State, and that therefore the members of the Commission refused to accept the office, and all their acts are void. That the defendant has been instructed to cause the arrest of all persons betting, conducting betting, book-making or pool-selling at the meeting and of the officers of the plaintiff who permit the same. The bill also avers that it will work an irreparable injury, for reasons alleged in the bill, should the plaintiff be prevented from holding the meetings for the remaining six days, and from permitting the exercise of the privileges which have been granted and let by it, and that the plaintiff is without remedy at law, as against these threatened wrongs ⁶¹⁴ and trespass, and is entitled to the interposition of a Court of Equity, by the writ of injunction, to prevent the same. The prayer of the bill is: 1.

That the plaintiff’s right under the license mentioned may be established; and 2. That the validity of the acts of the Harford County Racing Commission may be determined and established; and, 3. That the defendant and all persons acting by and under him may be restrained by injunction from interfering with the plaintiff or its officers in the conduct of the race meeting iind from arresting any person or persons engaged in taking bets or in bookmaking or in betting at the meeting; 4. And for all such other and further relief as its case may require.

Having thus fully set out the facts of the case, as made by the bill, we come now to consider the questions of law, as presented on the appeal. There can be no doubt, it seems to us, upon both principle and authority, that a Court of Equity has jurisdiction to grant an injunction to stay and restrain a criminal proceeding where it is necessary to protect property rights and where those rights would be destroyed by such prosecution. In Dobbins v. Los Angeles, 195 U. S. 223 , it is said: “It is also urged by the defendants in error that a Court of Equity will not enjoin prosecution of a criminal case, but as we have seen the plaintiff in error in this case had acquired property rights'which by the enforcement of the ordinance in question would be destroyed and rendered worthless. If the allegations of the appellee be taken as true, she had the right to proceed with the prosecution of the work without interference by the city authorities in the form of the arrest and prosecution of those in her employ.

It is well settled that where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a Court ⁶¹⁵ of Equity.” This doctrine announced in Dobbins v. Los Angeles, supra, is well settled law and established by numerous cases and text-writers: Davis F. Mfg. Co. v. Los Angeles, 189 U. S. 217 ; Daly v. Elton, 195 U. S. 343 ; Base Ball Co. v. New Orleans, 7 L. R. A. (N. S.) 1014; High on Injunctions, Vol. 1, 68; Page v. Baltimore, 34 Md. 559 ; Deems v. M. and C. C., 80 Md. 172 . In the case at bar, assuming that the Act of 1912, Oh. 132, is valid and constitutional, then it repealed in terms sections 204, 205 and 206 of Article 27 of the Code (1904), sub-title “Gaming,” so far as said sections apply h> Harford County.

In Mayor, etc., v. Radecke, 49 Md. 217 , Judge Mitxeb said: “As to the question of jurisdiction we have no doubt. It has been decided by this Court in too many cases to be longer open to question that, where a municipal corporation is seeking to enforce an ordinance which is void, a Court of Equity has jurisdiction at the suit of any person injuriously affected thereby to stay its execution by injunction.” And this mode of procedure in like cases has been approved and sanctioned by this Court in Deems v. M. and C. C., 80 Md. 172 ; Holland v. Balto., 11 Md. 187 ; Page v. Balto., 34 Md. 558 ; Bouldin v. Balto., 15 Md. 18 ; Balto. v. Porter, 18 Md. 284 . And to the same effect are the cases of Ex parte Young, 209 U. S. 165 ; St. Louis and San F. R. R. v. Gill, 156 U. S. 649 ; U. S. v. Lee, 106 U. S. 196 ; Davis v. Gray, 16 Wall. 203 ; Osborn v. Bank, 9 Wheat. 738 ; Smyth v. Ames, 169 U. S. 466 ; In re Sawyer, 124 U. S. 200 . But it is urged upon the part of the appellant that the Court below committed an error in granting the injunction, first, because there never was any legally constituted Racing Commission under the Act of 1912, Chap. 132, because the members of the Commission failed to take and subscribe to the oath prescribed by section 6 of Article 1 of tlie Constitution, and therefore the license granted by the Commission to the plaintiff was null and void and afforded it no protec ⁶¹⁶ tion; secondly, because Chapter 132 of the Acts of 1912, is unconstitutional, illegal and void, and therefore the license issued thereunder was null and void, and afforded no protection to the plaintiff or its officers or persons betting or conducting betting, book-making or pool selling’ at the race meetings.

The question raised by the appellant’s first contention is one of public importance and is presented on this record for the first time before this Court. The question, briefly stated, is this, are the members of the Racing Commission appointed by the Act of 1912, Chapter 132, persons “elected or appointed to any office of profit or trust under the Constitution or under the laws made pursuant thereto,” and as such required to take and subscribe the oath inquired by the Constitution before they enter upon the duties of the position to which they were appointed. Section 6, Article 1, of the Constitution provides, that every person elected or appoinetd to any office of profit or trust, under this Constitution or under the laws made pursuant thereto, shall before he enters upon the duties of such office take and subscribe the following oath. Section 1, Article 1, declares that every person hereafter . elected or appointed to office in this State, who shall, refuse or neglect to take the oath or affirmation of office provided for in the sixth section of this Article shall be considered as having refused to accept the said office, and a new election or appointment shall be made, as in case of refusal to accept, or resignation of an office.

The case of Sappington v. Slade, 91 Md. 640 , relied upon by the appellant, and urged in argument, differs from this, in that the statute creating the Board of Supervisors of Elections of the counties and the City of Baltimore provided in terms that before entering upon the duties of their office they should each take and subscribe the oath prescribed in the sixth section of the first Article of the Constitution, and also an oath to perform faithfully and honestly the duties imposed upon them by law. Acts of 1896, Chap. 202, sec. 3. ⁶¹⁷ Resides this, a civil commission was issued by the Governor to each supervisor and was sent by the Secretary of State to the clerks of the respective Circuit Courts, and they were required by law to deliver them immediately to the persons to whom the commissions were directed and who might apply for them. Sec. 11 of Art. 70 of the Code (1004) also provided that any person whether elected or appointed to office who shall decline