Bratburd v. State, 160

• Decision Date: 08 May 1952
• Docket Number: No. 160,160
• Parties: BRATBURD v. STATE (two cases).
• Court: Maryland Court of Appeals

Page 96

200 Md. 96

88 A.2d 446

BRATBURD v. STATE (two cases).

No. 160.

Court of Appeals of Maryland.

May 8, 1952.

Paul D. Taggart, Silver Spring (William R. Richards, Silver Spring, on the brief), for appellants.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Walter W. Dawson, State's Atty., Montgomery County, and Thomas M. Anderson, Deputy State's Atty., Montgomery County, both of Rockville, on the brief), for appellee.

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

DELAPLAINE, Judge.

These appeals were taken by Eddie Bratburd and Ruth E. Bratburd, his wife, residents of Silver Spring, from convictions for the possession of gambling paraphernalia in violation of the Montgomery County gambling law. Laws 1924, ch. 483, Montgomery County Code, 1950 Ed., sec. 50-3.

On June 27, 1951, Chief Judge Woodward of the Circuit Court for Montgomery County issued a search warrant commanding Corporal Watkins of the Montgomery County Police Department to search Bratburd's home at 8869 Piney Branch Road for gambling paraphernalia as prohibited by Section 50-3 of the Montgomery County Code. The warrant was issued upon the officer's affidavit that, by means of wire tapping, he and other officers had overheard numerous conversations in which Bratburd had engaged in carrying on gambling operations. On the same day the officers raided the house, arrested Bratburd and his wife, and seized two adding machines, two telephones, 918 slips containing numbers bets, 648 slips containing gambling information, and other gambling paraphernalia.

Each appellant filed a motion to dismiss the action, but the motions were overruled. Appellants filed actions in the United States District Court for the District of Maryland for an injunction to prohibit the police officers from divulging the contents of the intercepted telephone conversations which they proposed to use as evidence in prosecutions. Judge Chesnut dismissed the complaints, holding that the Federal court was without jurisdiction to issue an injunction against testimony proposed to be given by witnesses in a State criminal prosecution. Bratburd v. Dawson, D.C., 101 F.Supp. 414.

The instant cases were tried separately by jury with Associate Judge Prescott presiding. In each case the jury found a verdict of guilty, and the Court sentenced each defendant to be confined in the Montgomery County jail for the period of six months and to pay a fine of $500.

First. Appellants contended that Section 50-7 of the Montgomery County Code, which prescribes that the penalty for violation of the local gambling law shall be a fine of not more than $1,000 or imprisonment in jail for not more than one year, or both such fine and imprisonment in the discretion of the Court, was repealed by the Montgomery County Charter, and that the sentences imposed upon them exceeded the maximum limits prescribed by law.

In pursuance of Article XIA of the Constitution of Maryland, known as the Home Rule Amendment, which was proposed by the Maryland Legislature in 1914, Laws 1914, ch. 416, and ratified by the voters of the State in 1915, the Legislature enacted in 1918 the Express Powers Act, which granted to any county which should thereafter form a charter under the provisions of Article XIA the power: (1) to enact local laws for such county, including the power to repeal or amend local laws enacted by the Legislature upon the matters covered by the express powers granted in the Act; and (2) to provide for the enforcement of all ordinances, resolutions, by-laws and regulations adopted under the authority of the Act by fines, penalties and imprisonment, enforceable according to law as may be prescribed, with the proviso that 'no such fine or penalty shall exceed $100.00 for any offense or imprisonment for more than six months.' Laws 1918, ch. 456, Code 1939, art. 25A, sec. 3.

The question of creating a Charter Board for Montgomery County was first presented to the electorate of the county at the general election in November, 1942. The Board was created and it submitted a Charter to the County Commissioners of Montgomery County in May, 1943. That Charter failed of adoption at the general election in November, 1944. At the general election in November, 1946, the second Charter Board was created and it submitted a Charter to the County Commissioners in May, 1947. This Charter was adopted at the general election in November, 1948, and it became law on the thirtieth day following its adoption.

Montgomery County is the first county in the State to adopt a Charter under the provisions of the Home Rule Amendment. The Charter established a county government with local legislative power exercised by the County Council in place of the previous system of government by County Commissioners exercising no general legislative power. We have decided several problems arising out of the adoption of the Charter. Schneider v. Lansdale, 191 Md. 317, 61 A.2d l71; County Com'rs for Montgomery County v. Supervisors of Elections of Montgomery County, 192 Md. 196, 63 A.2d 735; Ames v. Board of Supervisors of Elections of Montgomery County, Md., 74 A.2d 29.

Under the Charter the County Council has the power to enact public local laws for the county and to repeal or amend local laws enacted by the Maryland Legislature upon the matters covered by the Express Powers Act. Charter, art. 2, sec. 4. The local gambling law has not been repealed by the County Council. But appellants argued that the Express Powers Act defined the scope of the legislative power of the County Council; and although the County Council may enact a local gambling law different from the public general law, no local law can validly prescribe maximum penalties greater than those prescribed by the Express Powers Act.

The Charter provides that the public local laws of the county in force at the time the Charter becomes law are repealed to the extent that they are clearly inconsistent with provisions of the Charter, but no further; and all other public local laws shall continue in full force and effect until repealed or amended. Charter, art. 9, sec. 6. However, we cannot agree with appellants that the local gambling law is inconsistent with the provisions of the Charter. The proviso in the Express Powers Act that no penalty shall exceed a fine of $100 or imprisonment for more than six months refers to 'ordinances, resolutions, by-laws and regulations' adopted by the County Council and enforceable as may be prescribed by it. The proviso is a limitation upon the power of the County Council, not a restriction upon the Legislature. We hold that Section 50-7 is still in force.

Second. Appellants urged that the search warrant, which authorized a search for gambling paraphernalia 'as prohibited by Section 50-3 of the Montgomery County Code,' was invalid because it was issued by the Chief Judge of the Circuit Court, whereas Section 50-5 authorizes Justices of the Peace and the Clerk of the Circuit Court, but not Judges of the Circuit Court, to issue warrants for search of gambling paraphernalia in Montgomery County.

The answer to this complaint is that the Chief Judge of the Circuit Court has authority to issue search warrants under the Maryland search warrant statute. This statute, enacted in 1939, fifteen years after the enactment of the local law, authorizes any Judge of the Supreme Bench of Baltimore City, or any Judge of any of the Circuit Courts in the Counties of this State, or any Justice of the Peace in this State, to issue a search warrant whenever it is made to appear, by a writing signed and sworn to by the applicant, that there is probable cause to believe that any misdemeanor or felony is being committed by any individual or in any place within the territorial jurisdiction of such Judge or Justice of the Peace, or that any property subject to seizure under the criminal laws of the State is located on the person of any such individual or in any such place. Laws 1939, ch. 749, Code 1939, art. 27, sec. 306, as amended by Laws 1950, ch. 81.

Therefore, although the warrant under attack was issued by the Chief Judge of the Circuit Court to authorize the search for gambling...