Penny v. Department of Md. State Police

• Decision Date: 08 February 1946
• Docket Number: 73.
• Citation: 45 A.2d 741,186 Md. 10
• Parties: PENNY et al. v. DEPARTMENT OF MARYLAND STATE POLICE et al.
• Court: Maryland Court of Appeals

45 A.2d 741

186 Md. 10

PENNY et al. v. DEPARTMENT OF MARYLAND STATE POLICE et al.

No. 73.

Court of Appeals of Maryland

February 8, 1946

Appeal from Circuit Court for Howard County; James E. Boylan, Jr. Judge.

Action under the Uniform Declaratory Judgment Act, Code 1939, art 31A, § 1 et seq., by H. Grafton Penny and others constituting the Board of County Commissioners of Howard county, a body corporate and politic, against the Department of Maryland State Police and Beverly Ober, as superintendent thereof, and another. From an order sustaining demurrers to the amended declaration, the plaintiff appeals.

Appeal dismissed.

Charles E. Hogg, of Ellicott City, for appellants.

T Barton Harrington, Asst. Atty. Gen. (William Curran, Atty. Gen., on the brief), for appellees.

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

COLLINS Judge.

The appellant, plaintiff below, filed in the Circuit Court for Howard County on the law side on August 2, 1944 the original declaration in this case under the Uniform Declaratory Judgments Act, Chapter 294 of the Acts of 1939, Code Article 31A. On November 25, 1944 a judgment was entered on demurrers in favor of the defendants for costs. On November 28, 1944 an amended declaration was filed and on December 7, 1944 the original judgment was stricken out by order of Court. Demurrers were filed to the amended declaration and on June 28, 1945 the Court sustained the demurrers to the amended bill but no judgment was entered. An appeal is taken to this Court from the sustaining of the demurrers to the amended declaration. It has been frequently held by this Court that a ruling on a demurrer to a declaration is not a final judgment from which an appeal lies. Emersonian Apartments v. Taylor, 132 Md. 209, 210, 103 A. 423; Waddell v. Arnett, 146 Md. 476, 477, 478, 426 A. 714; Miller v. West, 165 Md. 245, 248, 249, 167 A. 696; Smith v. Baltimore & Ohio Railroad Co., 168 Md. 89, 91, 176 A. 642; Walter v. Montgomery County, 179 Md. 665, 668, 22 A.2d 472; Elkton Supply Co. v. Stubbiles, 180 Md. 97, 99, 23 A.2d 3. Article 31A, Section 7, the Uniform Declaratory Judgments Act aforesaid provides: '(Review.) All orders, judgments and decrees under this Article may be reviewed as other orders, judgments and decrees.' The appeal must therefore be dismissed. We think, however, that the case should be discussed.

The amended declaration having been filed before the effective date, which was June 1, 1945, Chapter 724, Acts of 1945, is not applicable here.

The amended declaration filed under the Uniform Declaratory Judgments Act by the Board of County Commissioners of Howard County against the Department of Maryland State Police and Beverly Ober, the Superintendent thereof, and Otto Wachter alleges that on June 2, 1944 one Otto Wachter was operating a truck upon a public highway in Howard County and transporting therein forty-nine cases of Kinsey whiskey without having first obtained from the Comptroller of the State of Maryland a permit to do so, as required by Section 2, Subsection (h), of Article 2B of the Annotated Code of Maryland , and the amendments thereof (Flack's 1939 Code and Supplement). While so operating the said truck he was arrested by police employees of the Department of Maryland State Police 'acting as peace officers in and for Howard County' under the powers conferred by Section 21 of Article 88B of the Annotated Code of Maryland as amended and charged with a violation of Section 2, Subsection (h) of Article 2B aforesaid as amended. On the fifth day of June, 1944 the said Otto Wachter was tried before J. Lewis Thompson, a trial magistrate of the State of Maryland in and for Howard County, on said charge, at Elkridge, and was found guilty thereof and fined $1,000 and costs, which were paid and no appeal or other proceedings resulting from this conviction are pending. On the same day, June 2, 1944, the said police employees of the Department of Maryland State Police acting as peace officers aforesaid took into their possession for and on behalf of the proper authorities of Howard County the aforesaid forty-nine cases of Kinsey whiskey. On the fifth day of July, 1944 the said J. Lewis Thompson, magistrate as aforesaid, entered an order confiscating said whiskey for the use of the Board of County Commissioners of Howard County. After this whiskey had been so confiscated and while still in the possession of the Maryland State Police, the said Otto Wachter, through his attorney, made demand on the said Department of Maryland State Police for the return of the same and claimed to be the owner thereof. The said whiskey is still in the possession of the Department of Maryland State Police. The plaintiff, the Board of County Commissioners of Howard County, therein claimed property and right of possession of said whiskey. The declaration also stated that the Maryland State Police claim the right of possession and property of said whiskey by virtue of the provisions of Article 88B, Section 18A of the Annotated Code of Maryland as amended.

The plaintiff and appellant here prayed a judicial declaration as to the rights of the various parties to this proceeding in and to said forty-nine cases of Kinsey whiskey so as to terminate the uncertainty and controversy giving rise to this proceeding. Demurrers were filed by the Department of Maryland State Police and Beverly Ober, Superintendent. No plea or other declaration has been interposed by the defendant, Otto Wachter. The appeal to this court is from the order sustaining the demurrers to the declaration.

The primary question therefore before us is whether the conviction of Otto Wachter for transportation of the whiskey in question was such an offense as to justify the trial magistrate in confiscating the whiskey. Section 2, subsection (h), of Article 2B (1943 Supplement to Flack's Code), under which Wachter was tried and convicted, provides as follows: '(Storage.) No license shall be required of a person to operate a public warehouse where alcoholic beverages are stored for the accounts of other persons, or to transport alcoholic beverages into, within, or out of the State of Maryland; but the Comptroller shall issue a permit at an annual fee of $5.00 to such persons for the transaction of such business under such rules and regulations as he may deem necessary.' The penalty imposed for violation of any of the provisions of Section 2, supra, is a fine of not more than $1,000 or imprisonment for not more than two years in the House of Correction, or jail, or both fine and imprisonment. Section 2(m). Chapter 909 of the Acts of 1945 amending Article 2B effective June 1, 1945, providing for confiscation of alcoholic beverages in certain cases was not in effect at the time of this suit. It is admitted that the trial magistrate had no power by statute to confiscate the whiskey in this case.

Appellants rely strongly on the cases of Police Commissioners v Wagner, 93 Md 182, 183, 48 A. 455, 52 L.R.A. 755, 86 Am.St.Rep. 423, and Wagner v. Upshur, 95 Md 519, 52 A. 509, 93 Am.St.Rep. 412. These cases involved the seizure by the Police Commissioners of a musical slot machine without any arrest and conviction. As appellant points out, the Court said in the latter cases, at page 522, of 95 Md., page 510 of 52 A., 'The doctrines thus clearly announced in the former...