Weber v. State , 116 Md. 402 ( 1911 )

The appellant was convicted in the Criminal Court of Baltimore City upon the following indictment: "The jurors of the State of Maryland, for the body of the City of Baltimore, do on their oath present, that Joseph Weber, late of said city, on the 3rd day of May, in the year of our Lord nineteen hundred and ten, at the city aforesaid, unlawfully did then and there keep and exhibit for use four billiard tables without first obtaining from the said State a license for the keeping and exhibiting for use then and there of the said four billiard tables, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State."

A demurrer to the indictment was interposed and overruled. At the trial the traverser offered to prove that he holds a city license issued under an ordinance of the municipality. The action of the Court below in excluding this evidence forms the subject of the only bill of exceptions in the record. This exception and demurrer are intended to present the same question. They are both predicated upon the theory that the indictment charges a violation of certain sections of the Code of Public General Laws relating to licenses for the keeping of billiard tables; that these provisions are inoperative so far as Baltimore City is concerned by reason of the existence of local legislation on the subject, and that there is no State license required within the city for this purpose.

The present general law relating to such licenses is embraced in sections 8, 9 and 10 of Article 56 of the Code of Public General Laws of 1904, while the local law in question is contained in sections 658, 659 and 660 of Article 4 of the Code of Public Local Laws, title "Baltimore City." It is provided by section 8 of Article 56 of the General Code that:

"A license may be granted to any person who may apply forpermission to keep a billiard table, for which license thereshall be paid the sum of fifty dollars, and for every additional billiard table kept by the same person he shall pay a license oftwenty-five dollars; provided, that all said additional tablesshall be kept in the same apartment, and the word billiard table shall be construed to include pool tables; and provided further, that any person who shall keep a pool or billiard table where a charge is made for playing on the same, but the said charge is returned or is to be returned to the players to be exchanged with the owner of said table or his agent for money, drinks, cigars or any other articles of merchandise shall be considered as gambling, and such tables shall be deemed gaming tables for the purposes of this article, and the person so keeping such table shall be liable to the penalty or penalties prescribed by the Public General Laws for keeping a gaming table or other place of gaming or permitting gambling on his or her premises."

Section 658 of Article 4 of the Code of Public Local Laws is identical with the portion of the general law which we have italicized. The local law has none of the other provisions of the sections above quoted, but includes a proviso, which the general law does not contain, that "this section shall not apply to any billiard table kept for private use."

The terms of section 9 of Article 56 of the General Code tand 659 of Article 4 of the Local Code are exactly the same and in the following language:

"Any person keeping or exhibiting for use a billiard table or tables without first obtaining a license therefor shall, for each and every table so kept or exhibited, forfeit and pay the sum of five hundred dollars, one-half to the informer and the other half to the State."

Sections 10 of Article 56 and 660 of Article 4 of the respective codes are alike in providing that "Nothing contained in the two preceding sections shall impair the right of the Mayor and City Council of Baltimore to impose a further tax on billiard tables"; but the former law also preserved this right to other municipalities.

In the Codes of 1888 (P.G.L. Art. 56, secs. 8-10; P.L.L., Art. 4, secs. 641-643) the general and local provisions dealing with billiard table licenses were precisely similar and were the same as those now existing in sections 658-660 of Article 4 of the Local Code, except that the general law included other municipal corporations in the saving clause contained in the last section. The general law was amended into the form it now presents in the code by Chapter 525 of the Acts of 1892, while the local law was re-enacted by Chapter 123 of the Acts of 1898, which revised the Charter of Baltimore City and recodified the miscellaneous statutes relating to that locality.

Prior to the adoption of the Codes of 1888 there was no local legislation on this subject, except the Act of 1826, Chapter 219, to which we will presently refer, and those codifications adopted without change the provisions of sections 6, 7 and 8 or Article 56 of the Code of Public General Laws of 1860 as amended by the Acts of 1865, Chapter 56, and 1870, Chapter 250. The details of these intermediate amendments need not be stated. The provisions of the Code of 1860 were based upon the Acts of 1798, Chapter 113, by which such licenses were originally imposed, as modified by the Acts of 1824, Chapter 64, and 1826, Chapter 219.

The Act of 1798 authorized the County Clerk to issue the license and directed the proceeds to be applied to county uses. The cities of Annapolis, Georgetown, Baltimore and "the precincts of Baltimore" were excepted from the operation of this statute. In the Act of 1824 there was no such exception, but there was a saving clause in favor of the right of the corporations of Baltimore, Annapolis, Frederick and the commissioners of the town of Easton or of any other incorporated town to impose a further tax upon billiard tables. This act increased the license from fifty dollars to one hundred dollars, and directed that the money realized from this source be paid by the clerk to the treasurers, respectively, of the Western and Eastern Shores. At this period Baltimore City formed part of the territory of Baltimore county, but a City Court having been created by the Act of 1816, Chapter 193, provision was made that "the requisitions of the Act of December Session, 1824, Chapter 64, as they relate to the granting of licenses for permission to keep billiard tables in the said city, shall be and the same are hereby transferred to the City Court of Baltimore, and that the clerk of the said City Court shall be and he is hereby empowered and authorized to grant a license to such person or persons as may apply for permission to keep a billiard table, for which license there shall be paid the sum of one hundred dollars for the use of the State, and one dollar to the said clerk for his own use." Acts of 1826, Chapter 219.

In each of the acts mentioned there was a fine prescribed for the keeping of billiard tables without licenses. In the Act of 1798 the amount was one hundred and fifty dollars, one-half to be paid to the informer and the other half to the county; while in the Acts of 1824 and 1826 the amount was increased to five hundred dollars, of which one-half was to go to the informer and one-half to the State.

The references we have made to the history of the legislation involved in the present controversy will be useful as reflecting upon the question we are now to determine.

The indictment charges a failure to obtain a license from the State. It is hence argued on behalf of the appellant that this accusation is necessarily predicated on the general statute, and that it cannot be supported under the local law, which, it is contended, contemplates the issuance of licenses by the City of Baltimore. It is only upon this theory that the question as to whether the general law is operative in Baltimore City becomes important. If both are intended to provide for licensing by the State, the conduct charged in the indictment is "contrary to the form of the Act of Assembly" under the local, even though not under the general, statute. It is apparent, therefore, that the primary and perhaps the sole and controlling inquiry is whether the provisions we have quoted from the Local Code, under the title "Baltimore City," have lost the essential purpose of their original enactment by reason of their incorporation in that body of laws.

In all of the legislation from which the code provisions in regard to these licenses were derived it is perfectly clear that they were intended to be issued by and for the benefit of the State. Except for the codification of the laws there could be no possible ground for the suggestion that such licenses when issued within the limits of the city should be treated as being granted by the municipality. The Act of 1898 did not make these provisions a part of the Charter of Baltimore City. In fact, they are kept separate and distinct in that act from the legislation, under the sub-division entitled "Charter," which operates as a grant of municipal powers. They retain at the present time the place they were given in the Local Code of 1888 as a part of the miscellaneous laws relating to this governmental division of the State. If, therefore, the city is now entitled to issue the licenses thus prescribed and to receive the revenue they produce, it is not because the authority for that purpose has been expressly delegated by the legislature, but merely because the statute providing for the licenses, as an exercise of the State's prerogative, has been codified both as a local law for Baltimore City and as a general law for the State at large. We can have no hesitation in holding that the codification has not had such an effect.

There is nothing whatever in the terms of the act itself to indicate a legislative intent to exempt the keepers of billiard tables in Baltimore City from the necessity of obtaining a State license, but the contrary design is clearly apparent from the whole course of the legislation we have discussed, as well as from certain significant features of the existing law. The fines recovered for the violation of the act are directed to be divided equally between the informer and the State. If the purpose of the codification had been to vest in the city the right to grant the specified licenses and to collect the prescribed fees, it is not to be supposed that the State would have denied to the municipality any interest in the fines enacted from those in default. There is, moreover, in the act a distinct legislative recognition of the pre-existing right of the city to impose such a tax; and it would consequently have been superfluous to provide by statute a license which might have been just as effectually imposed by ordinance. But the consideration we regard as the most conclusive is that the requirement for the license exists as the result of a direct, and not of a delegated, exercise of sovereignty, and that the State had indicated no intention to relinquish the benefits to its treasury ordinarily produced by such an exertion of its authority.

While the sections we have quoted from the Baltimore City article of the Local Code do not designate the agency through which billiard table licenses are to be issued, it is elsewhere in the same Code (Art. 4, § 363) expressly provided that the Clerk of the Court of Common Pleas in Baltimore City shall perform the same duties as are imposed upon the clerks of the Circuit Courts of the counties by sections 57-62 (now 61-66) of Article 17 of the Code of Public General Laws with respect to "the obtaining of blank licenses, granting the same and returning an account thereof to the Comptroller." There is also a constitutional provision (Art. IV, sec. 38), that "The Clerk of the Court of Common Pleas shall have authority to issue within said city all marriage and other licenses required by law, subject to such provisions as are now or may be prescribed by law."

We accordingly hold that the license required by section 658 of Article 4 of the Local Code, as enacted by Chapter 123 of the Acts of 1898, is contemplated to be issued by the State and not by the City of Baltimore. The conclusion follows that an indictment charging a failure to obtain a license to keep a billiard table in that city "contrary to the form of the Act of Assembly in such case made and provided," is not demurrable on the ground that it describes the license as being issuable by the State, and that to such a charge the possession of a municipal license is no defence.

In disposing of the question we have thus far had under consideration, we have not found it necessary to apply the rule that "Where the public general law and the public local law of any county, city, town or district are in conflict, the public local law shall prevail." Code P.G.L. Art. 1, § 12; Cooper v. Holmes, 71 Md. 20; Prince George's County v. Laurel,51 Md. 457; Alexander v. Baltimore, 53 Md. 100. As the sections dealing with the subject in both the general and the local codes were originally and simultaneously derived, in identical terms, from the same statute, which provided a single licensing system, it is obvious that the legislature did not intend to duplicate the licenses, and there can be no doubt that the local requirement for their issuance has exclusive operation within the limits of the city. Whether the provisions added to the general law by the Act of 1892 are effective in Baltimore City is a question, raised in the argument, which we do not find it necessary to now decide. But there is a clause which is now peculiar to the local law, though formerly included in both codes, to which our attention must be directed. It is suggested that the proviso to the effect that no license shall be required for billiard tables which are kept for private use creates an exception which should have been negatived in the indictment. The settled rule, under repeated decisions of this Court, is "that where, after general words of prohibition, an exception is created in a subsequent clause or section, it must be interposed by the accused as a matter of defence," and it is not necessary in such case that the indictment should negative the exception by express averment. Parker v. State, 99 Md. 201; Kiefer v.State, 87 Md. 567; Stearns v. State, 81 Md. 341. InKiefer v. State there was an indictment under an act prohibiting the sale of intoxicating liquors by a licensee on Sunday "except that if the licensee is a hotel keeper he may supply such liquors to be drunk in their rooms or with their meals to bona fide guests." It was held that the exception should have been negatived, but it was said by the Court: "This section has a proviso with reference to the hours during which sales can be made, which is clearly a matter of defence, and it would not be necessary to negative it in an indictment for the violation of that part of the law. If the legislature had intended this exception to only have that effect, it is but reasonable to suppose it would also have been placed in the proviso and not in the very heart of the law."

In the present case, the clause exempting those keeping billiard tables for private use from the necessity of obtaining a license is contained in a clause, formulated as a proviso, which is separate and distinct from the provision requiring the license, and under the rule we have quoted we can have no difficulty in holding that it was not necessary to negative in the indictment the ground of exemption thus specified.

We concur in the rulings of the learned Court below and its judgment will be affirmed.

Judgment affirmed, with costs.