Wheeler v. State

• Decision Date: 12 December 1977
• Docket Number: No. 66,66
• Citation: 281 Md. 593,380 A.2d 1052
• Parties: , 3 Media L. Rep. 1607 John W. WHEELER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 593

281 Md. 593

380 A.2d 1052, 3 Media L. Rep. 1607

John W. WHEELER v. STATE of Maryland.

No. 66.

Court of Appeals of Maryland.

Dec. 12, 1977.

Burton W. Sandler, Towson, for appellant.

Bruce C. Spizler, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, and ORTH, JJ.

ORTH, Judge.

We hold that §§ 417(2) and 418 of Maryland's Obscene Matter Act, Maryland Code (1957, 1976 Repl.Vol.) Art. 27, are unconstitutional on the ground that these sections violate the equal protection clause of the Fourteenth Amendment.

John W. Wheeler was convicted by a jury in the Criminal Court of Baltimore of distributing an obscene magazine in violation of § 418 of the Obscene Matter statute. He was punished by a fine of $500 and ordered to pay the costs. The Court of Special Appeals affirmed the judgment, Wheeler v. State, 35 Md.App. 372, 370 A.2d 602 (1977), and we granted a petition for a writ of certiorari. We reverse.

I

By Acts 1967, ch. 394, § 1, the General Assembly repealed §§ 417, 418 and 418 B through 425 of Art. 27 of the Maryland Code of 1957, title "Crimes and Punishments," subtitle "Obscene and Other Objectionable Publications," and enacted in lieu thereof new §§ 417, 418, and 419 through 425 under the subtitle "Obscene Matter." Section 418 proscribes the crime of which Wheeler was convicted. It appears in the 1976 Replacement Volume as originally enacted:

"Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor."

"Person" is defined in § 417(2):

" 'Person ' means any individual, partnership, firm, association, corporation, or other legal entity, but shall not be construed to include an employee of any individual, partnership, firm, association corporation, or other legal entity operating a theatre which shows motion pictures if the employee is not an officer thereof or has no financial interest therein other than receiving salary and wages.'' ¹

II

The cardinal rule of statutory construction is to ascertain and carry out the real legislative intention. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 31, 358 A.2d 241 (1976). A statute should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation. Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976); Cearfoss v. State, 42 Md. 403, 407 (1875). That is, we must confine ourselves to the statute as written, and may not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute. In Re Appeals Nos. 1022 & 1081, 278 Md. 174, 178, 359 A.2d 556 (1976). Thus, if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature. Maryland Auto Ins. Fund v. Stith, 277 Md. 595, 597, 356 A.2d 272 (1976). As we said in Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 66, 327 A.2d 483, 487 (1974), "where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning." All parts of a statute are to be read together to find the intention as to any one part, and all parts are to be reconciled and harmonized if possible. Thomas v. State,277 Md. 314, 317, 353 A.2d 256 (1976). See Harden v. Mass Transit Adm.,277 Md. 399, 406-407, 354 A.2d 817 (1976). Our most recent pronouncement on the matter appears in Coleman v. State, Md., 380 A.2d 49, decided 8 December 1977:

"It is elementary that a statute should be construed according to the ordinary and natural import of the language used unless a different meaning is clearly indicated by its context, without resorting to subtle or forced interpretations for the purpose of extending or limiting its operation. State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975) (cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976)); State v. Zitomer, 275 Md. 534, 341 A.2d 789 (1975) (cert. denied sub nom. Gasperich v. Church, 423 U.S. 1076, 96 S.Ct. 862, 47 L.Ed.2d 87 (1976)). In other words, a court may not as a general rule surmise a legislative intention contrary to the plain language of a statute or insert exceptions not made by the legislature. St. Paul Fire & Mar. v. Ins. Comm'r, 275 Md. 130, 339 A.2d 291 (1975); Amalgamated Ins. v. Helms, 239 Md. 529, 212 A.2d 311 (1965)."

We pointed out that in Birmingham v. Board, 249 Md. 443, 239 A.2d 923 (1968), where it was evident that words were inadvertently omitted from a statute, the effect of which was to render the statute unconstitutional on its face, we held that "since the (Court) could not invade the function of the legislature, it had no power to correct an omission in the language of a statute even though it appeared to be the obvious result of inadvertence." Coleman at 55. And we repeated what we said in "the oft-cited case" of Schmeizl v. Schmeizl, 186 Md. 371, 375, 46 A.2d 619 (1946), that " 'the doctrine giving the judge power to mould the statute in accordance with his notions of justice has no place in our law.' " Coleman at 55. In short, judicial preference may not be put before legislative intent.

Furthermore, penal statutes are to be strictly construed. Howell v. State, 278 Md. 389, 392, 364 A.2d 797 (1976). This was succinctly put over a century ago in Cearfoss v. State, supra, and holds fast today:

"No man incurs a penalty unless the act which subjects him to it, is clearly, both within the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction. The law does not allow of constructive offenses or of arbitrary punishment." Id. 42 Md. at 407.

Reading § 418 together with § 417(2) in light of these well known and oft repeated principles, we find no ambiguity or obscurity in the language of the statute, so there is no need to look elsewhere to ascertain the intent of the Legislature. The legislative purpose is clear to deter the dissemination of obscene matter by making designated acts a crime punishable by imprisonment and fine. The all encompassing application of the prohibitions to any individual and every other legal entity, plainly the original intention, was limited by the 1968 amendment. By that amendment the plain intention was to exempt from criminal responsibility for the proscribed conduct employees of any individual and every other legal entity "operating a theatre which shows motion pictures," unless the employee is an officer thereof or has a financial interest therein other than receiving salary and wages. The word "employee" and the phrase "operating a theatre which shows motion pictures" must be construed according to their ordinary and natural meaning, for there is no indication that the Legislature intended to use them in an abnormal sense. Blue Cross v. Franklin Sq. Hosp., 277 Md. 93, 105, 352 A.2d 798 (1976). According to Webster's Third New International Dictionary of the English Language (unabridged 1968), an "employee" is "one employed by another usually in a position below the executive level and usually for wages." If a person is so employed by a legal entity operating a theatre showing motion pictures and is not an officer thereof and has no financial interest therein, he is within the ambit of the exemption and without the proscriptions of the statute. He may, under the clear and unambiguous statutory provisions, with impunity, engage in the conduct § 418 prohibits. We are not at liberty to bring about a different result by inserting or omitting words to make the statute express an intention not evidenced in its original form. The word "employee" may not be limited beyond the limitations set out in the statute. It may not be construed, for example, to mean only the film projectionist. It must include the theatre manager, ticket sellers, ushers refreshment stand salespersons, restroom attendants and all other persons meeting the exemption criteria while acting in the course of their employment. The Legislature specified only two conditions under which an employee of a legal entity operating a theatre which shows motion pictures is excluded from the exemption. This penal statute is to be strictly construed. Considering the clear and unambiguous language of the statute in its natural and ordinary signification, we cannot find that the Legislature contemplated other conditions, such as the nature of the duties performed by an employee, which would defeat the exemption. The statute, therefore, establishes two classes. Any individual, partnership, firm, association, corporation, or other legal entity, except an employee of any such legal entities operating a theatre which shows motion pictures, if the employee is not an officer thereof or has no financial interest therein other than receiving salary and wages, constitute the first class. Those persons exempted from the first class constitute the second class. A member of the first class is guilty of a misdemeanor and subject to imprisonment and fine if he violates the provisions of § 418. A member of the second class is not.

III

Swingers Life, Inc. operated a "bookstore" in Baltimore City which sold not only books and magazines ranging from the pristine to the pornographic, but also rubber supplies, prophylactics, condoms and "marital aids," described at the trial as including "dildos or vibrators or electrical devices...