7 Md. 416 | Md. | 1855
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
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.”
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
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
Order reversed and bill dismissed with costs.