Lucas v. McBlair

By the act of 1838, chap. 323, commissioners were appointed by name to build a Town Hall in Baltimore, and with power, by a scheme or schemes of lotteries and sales thereof, or tickets therein, to raise the sum of, &c. These schemes were to be approved of bythe Commissioners of Lotteries. By the act of 1839, confirmed in 1840, it bocame apart of the Constitution of Maryland, that “no new grant to authorize the drawing of any lottery, or the traffic or dealing in lottery tickets, or schemes or devices in the nature of lotteries, &c., shall be made.” The commissioners of lotteries were public officers of annual appointment. By bill filed in 1843, the Town Hall Commissioners complained, that while they were endeavouring to sell the tickets in their schemes, the Commissioners of Lotteries, since the acts of 1839-40, “approved, and allowed to be availed of, (and allowed tickets therein to be sold under licenses,) schemes of lotteries for the State of Maryland, and schemes of lotteries granted and authorised by other States than Maryland; stamped tickets in such schemes, and issued them to contractors for sale, and under pretext of licenses emanating from such Commissioners of Lotteries, that the same were largely sold, thereby violating the acts of 1839-40, also seriously interfering with the sales of the complainants, in their Town Hall schemes authorised by the act of 1838. To restrain this evil their bill prayed for an injunction against the Commissioners of lotteries', and the persons licensed by them, in relation to the approval of tickets in the lotteries for this State and other States, and sales of tickets therein and granting licenses therefor. Upon this it was held— That considering the difficulty of obtaining adequate redress at law, and the probability that a multitude of suits would necessarily be instituted to protect the complainants’ franchise, the process of injunction was a proper remedy. That as trustees, invested by law with an important public duty, they were competent, as parties, complainants, to proceed in equity in their own names, to protect the franchise committed to them from violation. The State was not necessary party to the bill in order to. obtain an injunction. It was the object of the act of 1839, chap. 39, to prohibit in future, all lottery grants by the Legislature, and all grants of licenses to deal in lotteries by the lottery commissioners, so far as it could be done without affecting antecedent or prior vested rights, secured by a constitutional sanction. The difficulty of obtaining adequate redress in a court of law is one of the well established grounds for resorting to a Court of Chancery, and especially where in the pursuit of justice it may be necessary to resort to a multiplicity of actions at law. A statute privilege, in possession, of an exclusive character, not admitting of an injurious competition, may in its use and enjoyment be protected by injunction, equally essential in such cases to prevent ruinous litigation, as fraud and evasion of the right. A franchise to propose a scheme of a lottery and sell tickets for a particular object, is so far of an exclusive nature, as to be within the principle above stated. The act of 1828, chap. 129, sec. 21, recognizes the propriety of a resort.to the writ of injunction in such cases. To prevent irreparable injury or multiplicity of suits, are grounds for obtaining an injunction. This preventive remedy is now granted more liberally than, formerly- Commissioners appointed by law — invested with a public trust — with means for its execution — with full power to act — must be entitled to use all the appropriate means necessary to the end in contemplation, and are regarded as having such an interest in the subject confided to them, as will enable them to proceed before the tribunals of the country, for the due protection of the rights entrusted to them. It is not necessary in all cases, that the cestui que trusts or parties beneficially interested, should be parties to a bill in equity. Executors and administrators who may sue, or be s.ued, in many cases sufficiently represent creditors, legatees or distributees, for whom they are trustees. The want of a party as a defendant, is generally no ground upon which to claim a dissolution of an injunction; a necessary party may be supplied before final hearing. It is the constant aim of courts of equity to do complete justice, by deciding upon and settling the rights of all parties interested in the subject matter of the suit, but this may bo obtained by having the necessary parties before the court at any time before the final decree is passed. If all persons interested are not made parties to the suit, the court many times, upon hearing, will not for want of thorn proceed to a decree. The act of 1839, chap. 31, was not confined to grants of lottery privileges by the Legislature, but was intended to cover the whole system of dealing in lotteries, and to prohibit the granting of licenses by the Lottery Commissioners, and the sale of schemes by them, except as to existing private lottery grants; and the power the Legislature before possessed of regulating suchprivate grants, and the means by which they might be more effectually and speedily accomplished. Where the object of the Legislature in passing a statute, was the suppression of a great moral evil, the construction of it should be benign and liberal, and not so restricted as to leave much of the mischief designed to be suppressed, the chance of still being successfully pursued. The title and preamble of an act are, strictly speaking, no parts of it, though they may be resorted to in explanation of the enacting clause, if it bo doubtful ; or to restrain its generality, when it would be inconvenient if not restrained.

Appeal from Chancery. On the 4th December, 1841, Samuel Lucas, William Gvnjnn, Charles G. Ridgely, Oliver Holmes, George G. Bell and Chas. F. Mayer, exhibited their bill of complaint against Michael McBlair, George Cooke, Samuel Scribner, Henry M. Bash, William Pyfer and J. G. Gregory, and other persons composing the partnership of J. G. Gregory and Company, alleging, that by an act of the General Assembly of Maryland, passed at December session of 1838, chapter 323, entitled, An act in aid of the construction of a State Armory and Town Hall in the city of Baltimore, and the re-building and improvement of the Hanover Market House in said city. Your orators (excepting Holmes,) were appointed commissioners for the purpose of raising, by sales or drawing of schemes of lotteries, the requisite sum of money for the construction of the State Armory and Town Hall, which for the public convenience and defence, it was the purpose of said act lo have erected. And your orators further show, that at their December session, 1839, chap. 52, an act supplemental to that just mentioned, was passed fay said General A.ssembly, extending the term of operation of the original act, and of the privileges and rights conferred by said act. And your orators pray reference to said original and supplemental acts, as they appear in the printed compilations of the acts of the aforesaid sessions, and that they be deemed and taken as part of this their bill. Your orators now further state, that the Mayor and City Council of Baltimore, whose property and interest are to be availed of, and to-be affected by the said acts, and by the' structure by the same required, did, in consideration that said structures should be made, become a party to said acts of Assembly, and grant their assent, and the privilege and control to the said commissioners in respect of the use of the ground and property of said corporation, which are contemplated in the fourth section of the said original act. And your orators state, that thereupon, and to accomplish the project so devised and ordained by the State of Maryland, and through the said assent and concession of said corporation, so stipulated for by the Mayor and City Council of Baltimore, the commissioners aforesaid proceeded to make contracts with persons for purchase of schemes of lotteries so authorised, which contracts were performed; and finally to cause schemes of lotteries to be drawn under their own direction, they by their agents selling the tickets therein. And your orators aver, that as commissioners under the acts aforesaid, they are now engaged in carrying out the objects of said acts, by sales in manner aforesaid, with reference to the said purpose of the General Assembly, and of the Mayor and City Council of Baltimore. And your orators give your honor to know, that Solomon Hillen, who by said original act was appointed one of said commissioners, resigned his said office, and that Oliver Holmes, your orator, was duly appointed a commissioner in his place, giving bond with approved security, as did each of your orators, according to the requirements of said acts of Assembly. And your orators suggest, that being thus the constituted agents of an undertaking of much public importance, and which it is the view of the State of Maryland and of the Mayor and City Council of Baltimore to have accomplished as promptly as may be, and for which it is the policy and intent of said acts, that means should be proCured as largely and surely as practicable, your oralors are specially interested in seeing maintained all the restrictive provisions of the law and Constitution of Maryland touching the privilege of lotteries. And now your orators show, that certain officers, by virtue of enactments of the General Assembly of Maryland, have been from time to time appointed, and now are officiating, called commissioners of lotteries, representing the State in reference to the revenue derivable to her from drawings of lotteries and sales of schemes, and licenses for selling lottery tickets, whose duties however, are particularly defined and prescribed in the several relevant acts of Assembly, to which in that respect your orators refer; your orators oho wing, that the actual commissioners now are, Michael McBlair and George Cooke. Your orators further show, that by the first section of the acts of the General Assembly of Maryland, passed at December session 1831, chap. 79, entitled, An additional supplement to an act to amend the lottery system, the said commissioners are empowered to grant at any time after the passage of said act, a license or licenses to any person or persons, to be in force for one year from the date of the grant thereof, to sell not only tickets in any scheme or schemes of a lottery or lotteries which the said commissioners shall form and dispose of, or authorise for the benefit of the State, but also to sell tickets in any scheme or schemes of a lottery or lotteries granted by any of the States of the Union, or by the United States of America, and submitted to and approved by said commissioners, it being further provided, that the person or persons so licensed, shall at or before the obtaining of the licenses, contract with the commissioners aforesaid, for the right to draw a scheme or schemes of a lottery or lotteries within the year for which the license shall be granted, which scheme or schemes shall produce to the Slate, at least the sum of fifteen thousand dollars within said year. And your orators now state, that in pursuance of the provision of law just recited, the commissioners of lotteries have habitually made contracts with certain individuals, for the benefit of such individuals, of certain schemes of lotteries, devised or approved by the commissioners in behalf of the State; and with reference to the yearly profit of at least fifteen thousand dollars, contemplated to be assured to the State by the terms of the act referred to;' such schemes being thus created and operative for the benefit of the State of Maryland; and the fruit and profit thereof commuted by the contracts aforesaid, made by the commissioners as aforesaid, with certain individuals. And your orators show further, that conformably to said acts of Assembly, the commissioners of lotteries have been accustomed to grant licenses to said contracting individuals, authorising them or their assignees of the licenses, to sell tickets of lotteries of the State as aforesaid, or of foreign lotteries of other States, or of the United States, within the scope of the provision already herein before set forth, as to those licenses. And your orators state and charge, that under licenses so granted by the commissioners of lotteries, and under colour of the said act of Assembly, tickets have ever since the passage of said act been sold, and are now selling within the city of Baltimore and in the State of Maryland at large, in schemes of lotteries for the State’s use as aforesaid, and of lotteries granted and sanctioned by only other States of this Union, or by the United States of America, such sales being made not only by the contracting individuals, and the grantees of the State of the said licenses, by numerous assignees of said licenses, under transfer of them respectively from said contractors. And your orators further show, that the contractors aforesaid, for the disposal of said licenses, and the sale of tickets to those using the licenses aforesaid, as grantees of said contractors, have customarily had, and now have, agents in the city of Baltimore, such agents receiving from the commissioners of lotteries the tickets of the various schemes; that the commissioners have approved for the dealing of said contractors and the holders of said licenses, the tickets so delivered, being stamped by said commissioners in token of the approval of the schemes, as required by the act of Assembly aforesaid, of the year 1831. And your orators state, that the persons who have contracted as aforesaid with the commissioners of lotteries, and have so contracted since the tenth day of March, in the year 1841, the day of the passage by the said General Assembly of the act hereinafter mentioned, entitled An act to confirm an act entitled, an act to alter and amend the Constitution, so far as it relates to the power of the Legislature to grant lotteries, passed at December session 1839, chap. 31, are J. G. Gregory and other persons, to your orators unknown, composing the partnership of J. G. Gregory and Company; and that the agents aforesaid of said contractors, acting and managing for them, in manner aforesaid, in the city of Baltimore, are Samuel Scribner, and William Pyfer and Henry M. Bash, doing business as such agents and managers, under the style of partnership, of S. Scribner and Company. And your orators state and charge, that at the December session of the year 1839, the General Assembly of Maryland, contemplating the evils of unlimited lottery dealings, and of the multiplied lotteries agitating and alarming the community, and absorbing their means in many instances, to be diverted to objects of other States, and to be accomplished beyond the borders of Maryland, and repudiating as a source of revenue to the State, the fruits of such inordinate dealing, struck from the ordinary powers of legislature the sanction of lotteries, by passing the act entitled, An act to alter and amend the Constitution, so far as relates to the power of the Legislature to grant lotteries, declaring, that from and after the confirmation of that act by the succeeding Legislature, “no new grant should be made to authorise the drawing of any lottery, or the traffic or dealing in lottery tickets, or schemes or devices in the nature of lotteries, or the distribution of money or property by chance;” and your orators state, at the next succeeding session of the Legislature, on the tenth day of March, in the year 1841, by an act entitled as above, an act to confirm the aforesaid act of the session of 1839, chap. 31; the act aforesaid forbidding to the Legislature the power of lottery grants, was confirmed and made part of the Constitution of Maryland;■ and the State itself, disabled from continuing the practice of lottery dealing, and drawing to the treasury the premium of the mischief which the Constitution thus marked and denounced. But your orators charge, that notwithstanding this constitutional condemnation and inhibition, the commissioners of lotteries, although the agents of the State, who has thus interdicted herself the privilege and profits of lotteries, have nevertheless, in continuance of the evil repudiated by the constitution, entered into contracts of the same scope as those permitted before this Constitutional ordinance, and have approved and allowed to be availed of, (and allowed tickets therein to be sold under licenses as aforesaid,) schemes of lotteries for the Slate of Maryland, and schemes of lotteries granted and authorised above by other States, and have stamped as aforesaid tickets in such schemes, and issued them to the contractors or their agents aforesaid, which contractors and agents your orators have above named. And your orators aver and charge, that by sanction as aforesaid by said commissioners of lotteries, and by the instrumentality of said contractors and said agents, and under pretext of the licenses aforesaid, emanating from said commissioners of lotteries, schemes are every week approved for State lotteries aforesaid, and of lotteries granted and authorised above by other States, and tickets are largely and busily sold under many licenses issued as aforesaid, by said commissioners of lotteries to said contractors, and from them passing to the numerous grantees of the licenses, said commissioners stamping and authenticating thus, or by signature, the tickets so set afloat; and thus affording every ostensible warrant and all encouragement to a transgression of a solemn constitutional rule, and misinterpreting and exceeding the limits of their constitutional duty, as agents of the State. And your orators aver and charge, that by such action of said commissioners of lotteries and of the agents and persons aforesaid, not only is that social injury done which the Constitution so studiously sought to avert, but the ¡undertaking to which, as aforesaid, your orators have been appointed as representatives of important purposes of the State and of the city of Baltimore, and which the State seeks to promote, has been seriously retarded, and its interests much prejudiced; and your orators aver and charge, that the project aforesaid of the State, over which they, as aforesaid, preside, must be long delayed, if not utterly intercepted for its accomplishment, if the unconstitutional procedure aforesaid, of which your orators now complain, be not arrested. All which is much to the grievance of your orators; in tender consideration whereof, and forasmuch asno effectual remedy can be afforded in the premises, except in this honorable court. To the end, therefore, that said Michael McBlair and George Cooke, and said J. G. Gregory and the other persons, his partners as aforesaid, and Samuel Scribner, and Henry M. Bash, and William Pyfer, may on oath, answer the premises, and that said McBlair and Cooke, commissioners as aforesaid, may be perpetually enjoined from approving any schemes of any lotteries granted by any of the States of the Union, or by the United States pf America, and from devising and approving, and authorising the drawing of any schemes of lotteries for the State of Maryland and the benefit thereof, as contemplated by the said act of Assembly, passed at the session of the year 1831; and that said McBlair and Cooke, as commissioners, be so enjoined from countersigning or stamping, or by any mark or token whatsoever, approving or authenticating any tickets in any schemes of anj lotteries as aforesaid, granted by other States than Maryland, or by said United States, or in any schemes devised by, or proposed to, or approved by said commissioners, for the benefit of the State as aforesaid; and further, that said Scribner, and Bash, and Pyfer, be perpetually enjoined from issuing or delivering, or selling or disposing of, or in any wise parting with any tickets of any lottery or lotteries granted by another State than as aforesaid, or by said United States, whether such tickets be or be not approved or stamped or countersigned by said commissioners, or either of them, and whether the schemes of such lotteries be or be not approved by said commissioners; and in like manner that they be so enjoined in respect of any lotteries or schemes or tickets thereof, or therein devised or approved by said commissioners of lotteries, for the benefit of the State of Maryland as aforesaid ; and further, that said J. G. Gregory and the other persons, his partners as aforesaid, be in like manner perpetually enjoined in respect of any such lotteries or schemes or tickets therein and thereof, as to which such injunction is above prayed and suggested against said Scribner, and Bash, and Pyfer; and that your orators may have such further and other relief in the premises as to your honor may seem right. Subpoena and order of publication, &c. The bill was sworn to by three of the complainants. On which bill the Chancellor (Bland) passed the following order: The State not being represented by its Attorney General, being made a party, no injunction can be granted as prayed by the foregoing bill of complaint. • Afterwards, on the 8th December, 1841, the complainants filed in the said cause the following order of the Honorable Stevenson Archer, one of the Judges of the Court of Appeals. “ Upon the aforegoing proceedings, it appearing to me that ££the Chancellor has erred in refusing to grant the injunction Sprayed for, if is .ordered this 7th day of December, 1841, (■f that the Register in Chancery, do issue the injunction as £.£ prayed in the bill, upon the complainants, or some of them, “executing a bond with .security to be approved by the Chan- ££ cellor, in the penalty of five thousand dollars, conditioned to “ prose,cute their injunction with effect, and pay and satisfy ££ the defendants, all costs to which they may be subjected by ££ said injunction, and also pay and satisfy all damages which £.£ they,or either of them, or the State may sustain by the granting and .continuance .of this injunction.” Afterwards, upon the petition of the complainants, the said Judge of the Court of Appeals approved of an injunction bond, &c., and directed the Register of the Court of Chancery to issue an injunction as prayed in the complainants’ bill. In pursuance of the said order, an injunction was issued in the usual form, The defendants appeared and filed their answers. But as those answers are not referred to by the opinion of this court jn its disposition of the cause, the reporters deem it unnecessary to publish them. Upon motion at the usual time, Ilis Honor the Chancellor, dissolved the injunction, and the complainants having obtained an order from his honor, Archer, Judge, prosecuted the appeal to this court.