Day v. State

| Md. | Dec 15, 1848

Dorsey, C. J.,

delivered the opinion of this court.

By the first section of the act of 1846, ch. 109, it is enacted “that the dealing in foreign lottery tickets is absolutely prohibited in this State; and any sale or other disposition of, or offer to sell, or otherwise to dispose of, any such tickets or parts of such tickets, or any substitute therefor, directly or indirectly, shall be punishable by a fine of fifty dollars for each offence, to be recovered before any justice of the peace, by action of debt, in the name of the State, instituted against the offending party, on the suggestion of the commissioners of lotteries.” And the third section of the act enacts, “that all insuring of lottery tickets, or parts 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 any such insurance or insuring, or receiving any consideration for insuring for or against the drawing of any ticket or tickets in any lottery, whether authorised 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 other 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, h owsoever, 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, any thing 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 ticketsin any lottery whatsoever, shall, for each of said offences be punishable as is provided by the first section of this act, in regard to the offences there described.”

By the. second section of the act, of 1847, ch. 284, which is a supplement to the aforementioned act of 1846, it is enacted, that “upon any proceeding for the recovery of any fine imposed by the act to which this is a supplement, the party, from whom it is sought to be recovered, shall be bound to answer on oath, any bill of discovery which may be filed against him in the premises, by the commissioners of lotteries, in the name of the State, either in the high court of chancery, or in any county court, as a court of equity.” Under these enactments the commissioners of lotteries, having, in the name of the State, instituted before a justice of the peace for the city of Baltimore, six several actions of debt, for the recovery of fines incurred under the third section of the act of 1846, filed a bill of discovery on the equity side of Baltimore county court, to obtain from the defendant certain information and disclosures in relation to certain memoranda issued by him, and by reason of which he had become liable for the payment of the fines, for the recovery whereof the said actions of debt were prosecuted. To this bill of discovery, the appeLlant interposed a general demurrer, which was overruled by the county court, and a judgment rendered against him. The only question which arose under that demurrer, in the court below, or which arises under this appeal, is, was the second section of the act of 1847, ch. 284, a constitutional enactment?

On the part of the appellant, numerous decisions have been referred to, to prove, what, in the absence of any special legislation, upon the subject, nobody denies, that at common law, no person can be compelled to give testimony, which would show that he had been guilty of a crime or misdemeanor, or subject him to any fine, penalty, or forfeiture. And that a court of equity will not compel a discovery, in aid of a criminal prosecution, or a penal action. That the legislature possessed the right of passing the enactment complained of, unless inhibited from doing so by some provision in the constitution of Maryland, or of the United States, appears not to be denied. The appellant insists that such inhibition is found in the third section of the declaration of rights; by which he asserts that the whole common law, as then existing in Maryland, was made a part of its constitution, and that no part thereof could be abolished or changed, by a mere act of legislation. For this novel and extraordinary proposition, it is only necessary to say, that the third section of the declaration of rights, furnishes no foundation.

The nineteenth section of the declaration of rights, which is 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,” also fails to support the position sought to be maintained by the appellant. The concluding words of the section plainly shew, that the power was confided to the legislature, which has been exerted by it, in the passage of the act of 1847.

There is no other part of the bill of rights, or constitution of Maryland, which the appellant can invoke to his aid, in the case before us. And there is no part of the constitution of the United States, which gives the slightest color to the principle, for which the appellant contends; unless it be found in that part of tíre fifth article of the amendments thereto, which declares., that no person “shall be compelled in any criminal case, to be a witness against himself.” If the proceedings pending before the justice of the peace, be criminal prosecutions or criminal cases, then is the judgment of the county court clearly erroneous, if that clause in the constitution of the United States, extend to state legislation. But what are the proceedings before the magistrate, in relation to which the bill of discovery before us, has been filed ? Not criminal cases or prosecutions, but civil actions, actions of debt inter partes, and although the object of their institution, is the recovery of fines or penalties, yet in contemplation of law, they are as much regarded as civil actions, as if instead of actions in debt, they had been actions for money, had and received^ For this doctrine, see the case of Acheson vs. Everett, Cowp. Rep., 382. The judgment and order of the county court, appealed from in this case, is affirmed.

JUDGMENT AFFIRMED.