Gibson v. State

Bruñe, C. J., delivered the opinion of the Court. The appellant was indicted by the Grand Jury for Cecil County for “making book” on a horse race. The ⁴²⁶ date of his alleged offense was August 22, 1953. When called to the stand, he admitted that he had been “making book” for some years; but he contended that bookmaking was not then unlawful in Cecil County.

The trial judge overruled appellant’s motion to dismiss the indictment, the case went to trial and the jury returned a verdict of guilty. The appellant was sentenced to a fine and imprisonment, but the latter sentence was suspended and the appellant was .placed on probation. He first urges here, as in the trial court, that bookmaking was not a crime in Cecil County on August 22, 1953; and second, he contends that the trial court’s instruction to the jury so overemphasized the court’s view with regard to the applicable law as to be prejudicial to him. I. Some review of the history of anti-bookmaking statutes in Maryland is necessary in determining the law applicable to Cecil County on August 22, 1953.

This involves a consideration of the Public General Laws and exemptions therefrom applicable to Cecil County (and certain other counties) and of the Public Local Laws of Cecil County. Unfortunately, a good deal of confusion has arisen, largely from these different types of legislation. The first Maryland statute specifically prohibiting bookmaking apparently was Chapter 206 of the Acts of 1890, which added a new section designated as 124A to Article 27 of the Code of Public General Laws (of 1888). This was a statewide act which generally prohibited bookmaking, but contained exceptions permitting it at agricultural fairs, race courses and driving parks.

Its prohibitory provisions were the precursors of the present Section 306 of Article 27 of the 1951 Code. The act was amended in 1894, chiefly by tightening the exceptions as to both place and time. This tightening, it seems, was not deemed sufficient, for in 1898 the Legislature passed three statutes dealing with the subject. The first was Chapter 13, which enacted a new local law for Cecil County.

(1888 Code of Public ⁴²⁷ Local Laws, Article 8, Section 415). This flatly prohibited bookmaking in Cecil County, without any exceptions. The reason for it may be found in Agricultural Society of Montgomery County v. State, 130 Md. 474 , 101 A. 139 , (1917), where the opinion of this Court indicates that in Cecil County, “six race tracks were located * * * upon each of which racing and gaming were carried on for thirty days, or for a total of six months during the winter months of each year.” One of the other statutes passed in 1898 was Chapter 290, which was a local law for Anne Arundel County similar to that for Cecil County, except that it permitted bookmaking at the local tracks in one month of the year. The third of the 1898 statutes was Chapter 285.

This repealed and re-enacted with amendments Section 124A of Article 27 and added four new sections, designated as 124B to 124E, inclusive. * The amended section, 124A, which now constitutes Section 306 of Article 27 of the 1951 Code, continued in force and amplified to some extent the prohibitions contained in the 1894 Act. The exceptions permitting bookmaking and betting at tracks were transferred to Section 124B and were made operative only in the counties and only if the premises were licensed by the Circuit Court of the County where the track was located. Sections 124C to 124E related to licensing, but Section 124E also contained provisions exempting Cecil, Washington and Anne Arundel Counties from the operation of the Act. Section 124E was amended in minor respects in 1902, 1904 and 1906; and under the last of these amendments, Chapter 127 of the Acts of 1906, the exemption clause read as follows: “provided, however, that the provisions of this Act shall not apply to Cecil, Washington or Anne Arundel Counties.” ⁴²⁸ (Sections 124C to 124E were expressly repealed as to Harford and Baltimore Counties in 1912 when racing commissions were established for those counties.) In Close v. Southern Maryland Agricultural Association, 134 Md. 629 , 108 A. 209 (1919), Section 124B to 124E, inclusive, were held unconstitutional as imposing a non-judicial duty (licensing) upon the Circuit Courts.

Such a holding had been more or less foreshadowed in Agricultural Society of Montgomery County v. State, 130 Md. 474 , 101 A. 139 (1917), in which the prohibitory section (124A) was held valid, regardless of the possible invalidity of the Sections 124B to 124E, and a local law of 1892 applicable to Montgomery and Prince George’s Counties (Chapter 386) was considered repealed. This view was adhered to in Beall v. Southern Maryland Agricultural Association, 136 Md. 305 , 110 A. 502 (1920), which was decided after the Close case had determined the invalidity of the licensing sections, and the 1892 local law applicable to Prince George’s County was expressly held to have been repealed. Two weeks after the decision of the Beall case, Chapter 273 of the Acts of 1920 was enacted and became effective. This Act created the State Racing Commission and conferred upon that Commission the power to regulate betting on horse races in Maryland. * In Nolan v. State, 157 Md. 332 , 146 A. 268 (1929), it was held that Section 124A was not repealed by Chapter 273 of the Acts of 1920, and this Court stated that the Maryland Racing Commission Act, which authorized the Commission to issue licenses to conduct races, “was passed in substitution for the four last sections of Chapter 285 of the Acts of 1898 * * *, as those sections authorizing the court to issue such licenses, had been declared unconstitutional.” The question of the survival and effect of the three-county exemption proviso in old Section 124E (Then Section 221 of Article 27) came before this Court in ⁴²⁹ O’ Connell v. State, 159 Md. 376 , 150 A. 735 (1930), and it was there held that, notwithstanding the fact that the licensing provisions of old Sections 124B to 124E had been held unconstitutional in the Close case, these exemptions survived and were effective as a limitation upon the scope of Section 124A.

The codifier’s change of “Act” to “section” in the exempting proviso in both the 1912-1914 Code and in the 1924 Code was held erroneous and was disregarded. The Court held as to the exempting proviso: “That part of the Section is valid and stands as if it were all that was ever in the section. * * * It was in fact as much a part of every Section of the Act as if it had appeared in each Section.” In commenting on the exemptions, the Court said: “As to two of the counties, at least (Cecil and Anne Arundel), it was clearly the intention to exempt them from all the provisions of the act, because at the same session of the Legislature local laws were passed for them practically identical with Section 124A, and omitting the other sections. Of course we do not know why there was no similar local legislation for Washington County.” Five years later legislation affecting Washington County was passed. Chapter 390 of the Laws of 1935 was entitled: “An Act to repeal and re-enact with amendments Section 251 of Article 27 of the Annotated Code of Maryland (1924 Edition, title ‘Crimes and Punishments,’ sub-title ‘Gaming,’ to make said sub-title applicable to Washington County.” In furtherance of this stated purpose the body of the Act amended the exempting proviso of Section 251 (old Section 124E) by omitting Washington County from the exempted counties so that the proviso read: “provided, however, that the provisions of this section shall not apply to Cecil or Anne Arundel Counties.” This proviso remained unchanged until Chapter 411 of the Acts of 1953 undertook to repeal Section 307 to 310 ⁴³⁰ inclusive of the 1951 Code (old Sections 124B to 124E).

In Miggins v. Mallott, 169 Md. 435 , 182 A. 333 (1936), the validity of Chapter 390 of the Acts of 1935 as making bookmaking illegal in Washington County was attacked on several grounds. These were (1) that an Act once held void cannot be ■ revived in whole or in part by repeal and re-enactment, (2) that the Act sought to do an affirmative thing in a negative way and (3) that the Legislature cannot amend one section of the law by repealing and re-enacting another related section. All three contentions were rejected. The first point was disposed of on the basis of the O’Connell case, which had clarified the Close case and had held the exempting proviso still in effect.

This Court said that the “apparent effect” of the 1935 amendment “was to leave only Anne Arundel and Cecil Counties free from the restrictions contained in section 247” (old Section 124A), and added: “* * * and this court having held that the exempting clause survived, a logical analysis of the action of the Legislature shows that what it effectuated, in reality, by the Act of 1935, was an amendment of the exempting proviso which left Anne Arundel and Cecil Counties exempt, and struck out such exemption as to Washington County.” ( 169 Md. 438, 439 .) The second point turned largely on the sufficiency of the title of the Act, and it was held that “the title in conjunction with the body of the act, brings out with resounding clarity the patent intent, purpose, and effect of the amending statute in no uncertain manner.” ( 169 Md. at 440 .) On the third point, which the Court considered more serious, it was held that it is not always necessary in amendatory legislation, to set out in extenso every section of correlative law which may be affected thereby, and the title was held sufficient under Section 29 of Article III of the Maryland Constitution. The appellant had also contended that if Chapter 390 of the Acts of 1935 was valid, its only effect was to render Section 251 (old Section 124E) inapplicable to ⁴³¹ Washington County, leaving the prior exemption applicable to Section 247 (old Section 124A). The Court took the position that its views with regard to the constitutional questions made it unnecessary to discuss this matter further than to refer to its holding that Section 247 (old Section 124A) was then applicable to Washington County and that the appellant was consequently no longer entitled to continue there in the occupation formerly permitted. It will be noted that the Court placed no emphasis upon the Legislature’s use of the word “section” in the proviso in the 1935 Amendment instead of the word “Act,” which had been held to be the proper word in the O’Connell case, rather than “section,” which was there held to have been mistakenly substituted by the codifier.

See Code, Article 27: 1904 Ed., Section 206; 1914 Ed. Section 221; 1924 Ed., Section 251. It seems to have been assumed that this change of words had not altered the meaning of the proviso or its application to the then Section 247 of Article 27 (old Section 124A, Section 306 of the 1951 Code,) but the elimination of the Washington County exemption, coupled with the declared purpose of the Act, was held to make Section 247 operative in Washington County. The effect of Chapter 390 of the Laws of 1935 as to Cecil and Anne Arundel Counties was not, of course, directly involved in the Miggins case, and the State contends that “section” should be construed literally. Two later statutes which are now pertinent are Chapter 256 of the Laws of 1945, a local law for Cecil County which repealed the local anti-bookmaking statute, and Chapter 411 of the Acts of 1953, which repealed Sections 307 to 310, inclusive, of Article 27 of the 1951 Code (old Sections 124B to 124E,) along with many other provisions of Article 27 described in the title as “generally obsolete and no longer necessary or desirable among the criminal laws of this State.” Chapter 256 of the Acts of 1945 is entitled: ⁴³² “AN ACT to repeal Section 162 of Article 8 of the Code of Public Local Laws of Maryland (1930 Edition), title ‘Cecil County,’ sub-title ‘Crimes and Punishments,’ sub-heading ‘gaming,’ relating to gambling.” The title is followed by this recital: “WHEREAS, the State-wide law against gambling makes the provisions of this section unnecessary,” and this in turn is followed by the outright repeal of the Section named in the title, The Act became effective June 1, 1945.

The title of this Act meets the requirements of Section 29 of Article III of the Maryland Constitution insofar as the repeal of a prior law is concerned. County Commissioners of Dorchester County v. Meekins, 50 Md. 28 (1878). A preamble may be resorted to in aid of construction of a statute if its meaning is doubtful. C. & O. Canal Co. v. B. & O. R. R. Co., 4 Gill & J. 1 (1832); Clark v. City of Baltimore, 29 Md. 277 (1868).

But a preamble forms no part of the act itself, Hammond v. Frankfeld, 194 Md. 487 , 71 A. 2d 482 (1950) ; Sutherland, Statutory Construction (3rd ed.) Sections 4804, 4808; Endlich, Interpretation of Statutes, Section 375; and the intention and meaning of the Legislature are to be collected from the law itself and are not to be restrained by anything in the preamble, Laidler v. Young’s Lessee, 2 Har. & J. 69 (1807). It will be noted that Chapter 256 of the Laws of 1945 differs markedly from Chapter 390 of the Laws of 1935 in that (1) the preamble assumes that the statewide anti-bookmaking law is already applicable to Cecil County, and (2) the title therefore indicates no intention to bring this about by affirmative action. Where the Legislature acts with respect to a statute already construed by the Court of Appeals, it is presumed to do so with knowledge of such construction. Herbert v. Gray, 38 Md. 529 .

The views expressed in Miggins v. Mallott as to Cecil and Anne Arundel Counties would indicate that the Legislature was in error in assuming (as it did) in ⁴³³ the preamble to Chapter 256 of the Laws of 1945 that the statewide anti-bookmaking laws were in force in Cecil County; and several questions consequently arise as to the effect of the 1945 repeal of the local anti-bookmaking law. That statute, merely by assuming the general State law to be effective in Cecil County, could hardly make it so. See State v. Kirkley, 29 Md. 85, 109 , where the Court said: “A law which, by its own terms, is to have no effect until the happening of a future contingent event, cannot be made effective before the event happens by any Acts or series of supplements passed upon the assumption that the event has happened, and that the law is in force. All such Acts, instead of possessing any curative powers, merely multiply errors.” Even if the preamble of the 1945 Act could be regarded as a declaration of a legislative construction of the 1935 Act, it still would not be controlling.

Marburg v. Mercantile Bldg. Co., 154 Md. 438, 443 , 140 A. 836 ; Montgomery Co. v. Bigelow, 196 Md. 413, 422-3 , 77 A. 2d 164 . Since we are dealing with a criminal statute, such a construction could have no retroactive effect, for it would then be an ex post facto law; and even with its effect wholly prospective, there would still be a grave objection to the title of Chapter 256 of the Acts of 1945 under Section 29 of Article III of the Constitution, if that enactment were said to extend the scope of old Section 124A either as a matter of affirmative legislation or as a matter of curtailing an existing exemption. If the “statewide” anti-bookmaking law (old Section 124A) was in force in Cecil County in 1945, this could only have been so by reason of the 1935 amendment of old Section 124E and by adopting a literal interpretation of the word “section” as used in that amendment.

Such an interpretation would, however, at once raise the question as to why Section 124E had been re-enacted at all (instead of simply repealed), for it would render nugatory the only portion of the Section which, after the Close and O’Connell cases, still had any vitality — the exempting clause — and which then granted, and could ⁴³⁴ grant, exemption only from the provisions of another Section (124A). Also the adoption of such a literal interpretation of the word “section” would then immediately lead to an apparently insuperable difficulty with the title of the 1935 amendatory Act, for its stated purpose of bringing Washington County within the operation of the general anti-bookmaking law (old Section 124A) would be exceeded by bringing in Cecil and Anne Arundel Counties as well. Two other possibilities might flow from the 1945 repeal. The first is that the rule might be invoked under which the repeal of a repealing statute has the effect of reviving the original statute, which was Section 124A of Article 27 as enacted by Chapter 232 of 1894.

Brenner v. Plitt, 182 Md.