Broadbent v. State

Le Grand, C. J., delivered the opinion of this court. The State filed its bill for discovery in the circuit court for Baltimore city, alleging that it had instituted, under the acts of 1846, chapter 109, and 1854, chapter 138, before a justice of the peace, three actions of debt against Stephen Broadbent, three actions against Scotti Broadbent, and three against Joseph Beard, to recover the penalties imposed by the 3rd section of the act of 1846; and that each of said actions so pending are brought for the illegal insurance of lottery tickets, and that such illegal insurances were effected on the 21st October 1851, by the defendants in the city of Baltimore, through certain person their agents, one or more of whom, were colored persons. The bill then avers that the appellants have caused to be printed and published a certain handbill filed with the bill of discovery, the true meaning of which is unknown to the appellee. It then asks that the appellants shall answer and make discovery of certain things and matters in regard to which they are specifically interrogated. To this — 426 — , bill the defendants demurred. The circuit court overruled the demurrer, from which order this appeal is taken. The third section of the act of 1846, chapter 109, is in these words: “That all insuring of lottery tickets, or numbers or certificates of numbers of lottery tickets, either foreign or domestic, is absolutely prohibited in this State; and any person, directly or indirectly, making or offering, or agreeing to make such insurance or insuring, or receiving any consideration for insuring for or against the drawing of any ticket or tickets in any lottery, whether authorized by law or not, or receiving any money, goods or thing in action, in consideration of any agreements to repay any sum or sums of money, or to deliver the same, or any goods or thing in action, if any ticket or tickets in any lottery whatever shall prove fortunate or unfortunate, or shall be drawn or not drawn, on any particular day, or in any particular order or otherwise howsoever, or promising or agreeing to pay any sum of money, or to deliver any goods or thing in action, or to do, or forbear to do, anything for the benefit of any other person or persons, with or without consideration, upon any event or contingency dependent upon the drawing of any ticket or tickets, or number or numbers of any ticket or tickets in any lottery whatsoever, shall, for each of said offences, be punishable as is provided for by the first section of this act in regard to the offences there described.” The first section provides a fine of fifty dollars for each offence, which, by the act of 1854, chapter 138, section 1, is reduced to five dollars, to “be recovered before any justice of the peace, by action, of debt in the name of the State,” &c. The 4th section of the act of 1846, chapter 109, provides,, “that the employment, by any licensed vendor or vendors, or any other person, of any negro or colored person to do any of the matters qr things prohibited by this act, or in any way. to assist in doing them,.shall be punished, upon indictment and conviction thereof, by a fine of not less than fifty, nor more than two hundred and fifty dollars,.and by imprisonment for-not less than twenty days, nor more than six-months.” — 427 — The second section of the act of 1847, chapter 284, provides: “That upon any proceeding for the recover}" of any fine imposed by the act to -which this is a supplement, the party from whom it is sought to be recovered shall be bound to answer on oath any bill of discovery which may be filed against him in the premises by the commissioners of lotteries, in the name of the State, either in the high court of chancery or in any county court as a court of equity.” The bill in this case calls upon the defendants to answer -six interrogatories. We are of opinion they ought not to be compelled to answer some of them. The bill was filed to procure evidence in aid of suits at law instituted under the third section of the act of 1846, chapter 109. That section does not make the employment, as does the 4th section, of •colored persons a crime. Some of the questions ask of the defendants to make such disclosures as would, (if they have employed negroes or colored persons,) subject them to a criminal prosecution. The 20th section of the existing bill of rights of Maryland, is precisely the same as the 19th section of the bill of rights of 1776, and the latter, in connection with the second section of the act of 1847, chapter 284, has received a judicial interpretation in the case of Day vs. The State, 7 Gill, 321. Both articles read as follows: “That no man ought to be compelled to give evidence against himself in a court of common law, or in any other court, but in such cases as have been usually practised in this State, or may hereafter be directed by the legislature.” The concluding words of the article clearly confide to the discretion of the legislative branch of the government the exercise of the power to compel a party to give evidence against himself, and so it was expressly holden by the Court of Appeals in the case to which we have referred. But, although it is competent to the legislature to alter the rules of evidence so as to compel a party to give testimony against himself, it is, nevertheless, a power of such transcendent and overwhelming importance, that a just regard for the liberties of the citizen should, at all times, induce the most cautious — 428 — and jealous exercise of it by the legislature. And especially should courts of justice anxiously and narrowly watch it; and never, under any pretence whatever, extend it beyond the limits to which the strictest interpretation of the language of the legislature confines it in the particular case. In the case before us, the parties are not being proceeded against for the violation of the 4th section of the act of 1846, but of the 3rd section. They ought not, therefore, to be compelled to answer any question which is not essential to the ascertainment of the fact, whether or not they have violated the provisions of the third section of the act. So far as liability under that section is concerned, the color of the agents through whom the insuring, &c., may have been done, is a wholly immaterial inquiry. It is the 4th. section which makes the employment of negroes a crime, punishable by fine and imprisonment. In the suits pending before the justice, the defendants are not charged with a violation of the 4th section, and we, therefore, can see no reason why they should be compelled to furnish evidence which would, in regard to a different matter, to wit, the employment of negroes, subject them to a criminal prosecution. The 2nd section of the act of 1847, chapter 284, only compels the party to answer on oath any bill of discovery which may be filed against him “in the premises.” The premises here are the things specified in the third section of the act of 1846, among which is not to be found the employment, eo nomine, of negroes or colored persons. Independently of the act of 1847, it could not and has not been contended, that the defendants could be compelled to answer the matters inquired of in this bill of discovery, and, for the reasons we have given, we are of opinion the defendants ought not to be compelled to answer the interrogatories to which we have referred, even were there no other objection to the bill. We think the joinder of the defendants is a fatal defect. The proceedings before the justice are separate. The cases have no necessary connection with each other, and the defendants in them ought not to be compelled to defend jointly, or to have their rights in a court of equity mingled with those of — 429 — other parties, and for that reason the bill is bad on demurrer. But, it is said, this defect, if one, is cured by the sixth section of the act of 1846, which provides: “That no proceedings in any court, or before any justice, by indictment, action of debt, bill in equity, or otherwise instituted, upon the suggestion of the commissioners of lotteries, shall be quashed, set aside, dismissed or delayed for any defect or (in) form whatsoever.” There might be a question, whether this section has any bearing on the 2nd section of the act of 1847, chapter 284, but conceding that it has, on the principle that matters in pari materia shall be construed together, yet it cannot avail the State in this case, for we regard the joinder of the defendants as a matter of substance, and not oí form, to which the section was evidently, in any event, designed exclusively to apply. These views dispose of this case, but inasmuch as there was another question of practical importance presented and discussed, we deem it proper to dispose of it also. It was contended, on the part of the defendants, that under the present constitution of Maryland, the lottery commissioner has no right to institute such a proceeding as that now under consideration. In this view we do not concur. We think the 4th section of the 7th article of the constitution clearly contemplates the performance, by the commissioner therein referred to, of the duties previously discharged by the two lottery commissioners. lie is required to give bond “for the faithful performance of his duties as is now (then) given by the lottery commissioners.” The 5th section of the same article only assigns to him another and additional duty, and in no wise confines his power to the mere making of a contract. The 3rd section of the bill of rights, however, is a conclusive answer to the objection. It distinctly declares to be in force all laws which were so on the first Monday of November 1850, except such as may thereafter have expired, or be repugnant to the constitution. There is nothing in the acts of 1846, or 1847, relating to the subject before us, which has expired, or which is repugnant to the constitution. The constitution ex — 430 — pressly recognizes the continuance, for a specified term, of the lottery system, and in the absence of some express declaration to the contrary, we must understand the language of the constitution to mean the system in force at the time of its adoption. The objection can find no support from the decision of the case of Mace vs. The State, 5 Md. Rep., 348. The question of the jurisdiction of the Court of Common Pleas,considered in that case, was determined in reference to the language of the 10th and 11th sections of the 4th article of the constitution, which, after conferring on the Superior Court certain powers, proceeds to say, that in addition to the enumerated powers, it shall have jurisdiction in "all other civil cases which have not been heretofore assigned to the Court of Common Pleas." This language undoubtedly makes the latter court one of limited and specified jurisdiction, and it was on this ground the court rested its decision. Order reversed and bill dismissed with costs.