Bell v. Board of Com'rs of Prince George's County

• Court: Maryland Supreme Court
• Writing for the Court: [10] Marbury
• Citation: Bell v. Board of Com'rs of Prince George's County, 72 A.2d 746, 195 Md. 21 (Md. 1950)
• Decision Date: 13 April 1950
• Docket Number: 119.
• Parties: BELL v. BOARD OF COUNTY COM'RS OF PRINCE GEORGE'S COUNTY.

72 A.2d 746

195 Md. 21

BELL v. BOARD OF COUNTY COM'RS OF PRINCE GEORGE'S COUNTY.

No. 119.

Court of Appeals of Maryland.

April 13, 1950

Robert W. McCullough, Washington, D. C., and Willis R Jones, Baltimore, for appellant.

Jerrold V Powers, Hyattsville (Robert B. Mathias, Mt. Rainier, on the brief), for appellee.

Before MARBURY, C J., and COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

The question involved in this case is the constitutionality of Chapter 753 of the Acts of 1949, which provides for the licensing of coin operated mechanical or electrical amusement devices or machines in Prince George's County. This act was subject to a referendum, which was had, and a majority of those voting at the election approved it. Subsequently, a certain Hendricks filed a bill of complaint in the Circuit Court for Prince George's County, stating that he was a resident of Montgomery County, and that his corporate co-plaintiff, of which he was the principal stockholder, was a Maryland corporation, having its principal office in Baltimore City. These complainants stated that they had been engaged in the business of operating amusement devices in Prince George's County for the past fourteen years in about 25 separate locations, with approximately 50 machines varying in price from $200 apiece to $900 apiece. They showed that the act restricted the issuance of operators' licenses to registered voters and property owners of Prince George's County, and alleged that this was an unlawful discrimination. They, therefore, asked that the sub-section complained of be declared void. The County Commissioners were made defendants to this bill and filed an answer and demurrer. There was a hearing on the bill at which some testimony was taken, and, thereafter, the Chancellor, Judge Charles C. Marbury, filed an opinion in which he held that the entire act was void. A decree was signed so holding, and enjoining the County Commissioners from issuing any licenses under the statute. No appeal was taken in that case.

Later, the present appellant filed a petition against the County Commissioners stating that he was a resident of Prince George's County and qualified under Chapter 753 to obtain a license, that he had made formal application to the County Commissioners, that the latter had denied his application, that he was not a party to the Hendricks proceeding, and he asked for a writ of mandamus directed to the County Commissioners, commanding them to receive and pass upon his application. The Commissioners answered, setting up the unconstitutionality of the statute and the decree in the Hendricks case as their defense. The appellant demurred to the answer, the case was submitted on the pleadings and the Chancellor overruled the demurrer, dismissed the petition for mandamus, and entered judgment in favor of the Commissioners for costs. From this order the case is appealed here.

It is suggested by the Commissioners that not only are they bound by the decree in the Hendricks case, but that the appellant is also bound because he is one of a class vitally interested in that case. Class suits are, of course, well known methods by which taxpayers sue for themselves and others, similarly interested, who may come in, but the principle of res judicata extends further than such other taxpayers. It is a familiar principle that if a party is interested in the subject matter of a suit and knowingly allows it to be pursued to a final decree without intervening or participating in the proceedings, he may be bound by the result. Snavely v. Berman, 143 Md. 75, 121 A. 842; Rody v. Doyle, 181 Md. 195, 29 A.2d 290. The doctrine has been applied where the question involved is the same and the rights of the parties are similar, even though the second plaintiff did not know of the action taken by the first. Holt v. Moxley, 157 Md. 619, 147 A. 596. A discussion of the general subject may be found in the case of Leviness v. Consolidated Gas, Electric Light & Power Co., 114 Md. 559, 80 A. 304, Ann.Cas.1913C, 649. The record before us does not contain the bill of complaint in the Hendricks case, but the Chancellor, in his opinion in that case, set out the chief allegations. From these it appears that the non-resident plaintiffs desired to strike down that part of the act which prohibited licenses from being granted to them. The appellant in the case before us is a resident who claims he is qualified under the act, and his position is that the entire act should be upheld. The rights of the parties in these two cases are not only not similar, but are even antagonistic, and we do not think the appellant is bound by the Hendricks case.

The basis for the decision in the Hendricks case was that the title of Chapter 753 violated Section 29 of Article 3 of the Constitution, which provides that every law 'shall embrace but one subject, and that shall be described in its title'. The title of Chapter 753 is as follows: 'An Act to add eight new sections to the Code of Public Local Laws of Prince George's County (1943 Edition being Article 17 of the Code of Public Local Laws of Maryland), title 'Licenses' to be under a new sub-title 'Amusement Devices', said new sections to be known as Sections 951A-951H and to follow immediately after Section 951 of said Code, relating to the licensing of coin operated mechanical or electrical amusement devices or machines in Prince George's County and providing for a referendum thereon at a special election to be held in said county.'

Section 951A of the Act reads as follows: 'Nothing contained in Article 27, Sections 288 to 307, inclusive, of the Annotated Code of Maryland (1939 Edition), title 'Crimes and Punishments', sub-title 'Gaming', shall be construed as prohibiting, penalizing or making unlawful the keeping, maintenances, operation or distribution for operation, for public use in Prince George's County, by any person or partnership, on and after this sub-title becomes effective, of any mechanical or electrical amusement devices, which require the insertion of a coin or token for their operation and which offer an award to the player based in whole or in part upon chance or skill, provided that the necessary licenses as provided in this sub-title are procured; and provided further, that nothing in this sub-title shall be construed as making lawful the possession, maintenance or use of the upright side lever operated slot machine commonly called the 'one armed bandit', it being the intent to exclude said devices from the following licensing provisions. * * *'

This section makes lawful the licensed use of amusement devices which require the insertion of a coin or token and which offer an award to the player based in whole or in part upon chance or skill. In other words, under the statute, there is nothing to prevent the proprietor of an establishment where these devices are set up from 'paying off' when a player is lucky enough to hit a winning number or reach a winning total. It is possible, of course, that these machines can be used for innocent amusement, but it would be a naive person indeed who would suppose that is their main purpose, or the way in which they are generally operated. Where the gaming laws are in force, the difference between innocent operation and criminal operation is such 'paying off'. We have recently upheld a conviction of the proprietor of a tavern who did that. In that case there is a discussion of how one of these amusement devices is operated as a gambling machine. Hunter v. State, Md., 69 A.2d 505. A further rather complete discussion of how some classes of these machines are operated is found in the opinion of Chief Judge Bond in Hoke v. Lawson, 175 Md. 246, 1 A.2d 77. See also Gaither v. Cate, 156 Md. 254, 144 A. 239.

It has been held in a number of cases where there is a question of confiscation by the police, that those machines which may be used for a legal as well as for an illegal purpose cannot be taken away. Police Commissioners for City of Baltimore v. Wagner, 93 Md. 182, 48 A. 455, 52 L.R.A. 775, 86 Am.St.Rep. 423; Wagner v. Upshur, 95 Md. 519, 52 A. 509, 93 Am.St.Rep. 412; Soper v. Michal, 123 Md. 542, 91 A. 684, L.R.A.1915A, 232; Penny v. Maryland State Police, 186 Md. 10, 45 A.2d 741. In the last case, which did not have to do with such machines, the statement in the previous cases was repeated; namely, that only such property or articles as are intended to be used in violation of law, and can be used for no legitimate purpose, can be summarily seized by the police authority. That, however, is not the question here. We must determine whether a provision in the title for licensing amusement devices or machines sufficiently describes the intention of the act, which is to permit such machines to be used for gambling purposes.

Section 29 of Article 3 of the Constitution has been invoked in many cases in this Court. The general rule of its construction is that every presumption favors the validity of the statute, and reasonable doubt is enough to sustain it. McGlaughlin v Warfield, 180 Md. 75, 23 A.2d 12. The purpose of the provision, which has been inserted in the last three Constitutions, is to assist the members of the Legislature in finding out the nature of the bills, usually read to them by their titles only, and in watching their course intelligently, and also to inform the citizens of the State generally about the proposed legislation, and to give them an opportunity to appear before the committees of the Legislature. Neuenschwander v. Washington Suburban Sanitary Commission, 187 Md. 67, 48 A.2d 593. The cases may be generally divided into those in which it is claimed the title is not sufficiently descriptive, and those in which it is contended that the title is misleading. ...