Keller v. State , 11 Md. 525 ( 1857 )

Tuck, J.,

delivered the opinion of this court.

These cases were argued and will be decided together, as they all depend on the same condition of facts and law. In view of their importance, as affecting the public interest, we have considered them upon the merits, and having concluded that the parties were properly indicted and convicted, it is immaterial to them whether we affirm or dismiss the appeals. The latter point wo have not examined.

These appellants were indicted, each in eight several counts, for violating the license laws, from which they claim exemption, because they “are manufacturers of lager-beer, which they retail in small quantities less than a pint, in lager-beer saloons without license.”

And, first, it is contended, that the title of the act of 1856, ch. 353, is not sufficiently descriptive within the seventeenth section of the third article of the constitution, which declares, that “every law enacted by the Legislature shall embrace but one subject, and that shall be described in the title.” In the case of Davis vs. The State, 7 Md. Rep., 151, a construction was placed on this clause of the constitution, which we think maintains the validity of this act of Assembly, against the objection now under consideration. This law relates to licenses to ordinary keepers and traders, as the subject of legislation. The purpose is declared to be the raising of additional revenue, to pay the debts of the State by increasing the rates of license. The subject of the act would have been sufficiently indicated by the title, if this purpose had not been declared. The act does not dispose of the fund raised from these licenses, or in any manner treat of the revenue or debts of the State. It might, with as much reason, be said, that because a person violating the act may be punished by indictment, three subjects are embraced, to wit; revenue, licenses and crimes. The evils designed to be prevented by this clause of the constitution, are well stated in Davis vs. State, and we do not perceive that this act is multifarious in the sense of that instrument, or calculated to contravene its purposes.

Jt is also contended, that the act is unconstitutional, because it lays a tar, by way of license, on manufacturers of lager-beer, which, it is said, compels them to pay more than then' fair proportion towards the support of government; that it is a revenue measure, and not an exercise of legislative power, under the last clause of the 13th article of the bill of rights, «with a political view, and for the good government and benefit of the community.” We might dispose of this objection by referring to the case of Burton, et al., vs. The State, 3 Gill, 1, in which several questions were decided, and points ruled, upon the act of 1844, ch, 280, entitled «An act imposing duties on promissory notes, bills of exchange, specialties and other instruments of writing, to aid in paying the debts of the State,” and which act, as to some of the instruments then before the court, was declared to be valid. The title plainly showed, as does the title of the act of 1856, that the proceeds of the duties imposed, were to be applied in payment of the public debt, yet it does not appear to have been urged by-counsel, or to have occurred to the court, that the act was void, because persons who might use stamped paper would be contributing to the support of government, on a basis other than «his actual worth, in real orpersonal property; ”and we think that, considering the large amount raised by that source of revenue, and the opposition to the law in some sections of the State, the question would have been decided, if the court had thought that act violated the old bill of rights, which was the same as the present, as far as it relates to this question.

But the system of legislation to which this act belongs, may be vindicated upon the plainest grounds of public policy, acknowledged and acted upon in most, if not all, the States of the Union, to wit: the right to regulate their internal police, and every thing that relates to the morals and health of the community, besides having received the sanction of the highest tribunal known to our institutions. In the case of Brown vs. The State of Maryland, 12 Wheat., 419, it was decided, that a State Legislature could not require the importer of foreign articles to take out a license from the State before selling a bale or package so imported, because such legislation would be repugnant to two provisions of the constitution of the United States, that which deiares, that “no State shall, without the consent of Congress, lay any imposts or duties, on imports or exports, except what may be absolutely necessary for executing its inspection laws;” and that declaring, that Congress shall have power “to regulate commerce with foreign nations, and among the several States, and with the Indian tribes;” but it was conceded, that this prohibition continues only so long as the article remains the property of the importer, in the original form or package in which it is imported, and that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property-in the country, it loses its distinctive character as an import, and becomes subject to the taxing power of the State, whether in the form of licenses to those who may deal in quantities less than the original package, or through sales by licensed auctioneers, or by regulations for the safety and health of its citizens. In the License cases, 5 Howard, 504, Ch. J. Taney, refers to Brown vs. The State of Maryland, as “drawing the line between foreign commerce, which is subject to the regulation of Congress, and internal or domestic commerce, which belongs to the States, and over which Congress can exercise no control,” and all the judges who heard the cases concurred in affirming the validity of State laws, regulating the sale of ardent spirits, by requiring licenses to sell by retail. These were fully argued, and most of the judges delivered separate opinions, in view of the importance of the questions involved, and there was a difference among them on some of the points, but there was no dissent as to this power of the State. Ch. J. Taney says, “but although a State is bound to receive, and to permit the sale by the importer, of any article of merchandize which Congress authorises to be imported, it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem necessary and advisable to guard the health or morals of its citizens, although such law may discourage importation or diminish the profits of the importer, or lessen the revenue of the General Government. And if any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice or debauchery, I see nothing in the constitution of the United States, to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper.” To the same effect, see the opinions of Justices McLean, (588, 591, 592, 595;) Daniel, (617;) Woobury, (623, 626, 627;) Grier, (631.) The conclusion to be drawn from those cases is, that the liquors sold by the parties, plaintiffs in error, stood on no higher ground than domestic spirits, and that such spirits are subject to State authority as objects of taxation, or of license in restraint of their sale; and it follows, that if the liquors, for selling which the present traversers stand indicted, were merely sold by them, the validity of the act of 1856, could not be doubted.

But it is supposed that the appellants are protected, although the liquor sold is domestic, because they are manufacturers, and only retail beer of their own brewing. We are not now dealing with the power of the State, to tax, by license or otherwise, the manufacturers of this article; the question is, can they claim the right to trade or traffic in it, in small quantities, when all other persons are required to take out licenses for the purpose ? It is very manifest that this position, if allowed, might defeat in a great degree the object of the license laws, so far as they are designed to protect the morals of the community. For every distiller and brewer may become a retail dealer, or have a tippling saloon annexed to his establishment, and thus evade the license laws altogether; or the small vender, may make brewing a part of his business, with the same injurious effect upon the policy of the State. If, as was held in Brown vs. The State of Maryland, the imported article is liable to be affected by a State license law, as soon as the original package is broken up for use or retail by the importer, (see opinion of Chief Justice Taney, 5 Howard, 575,) we cannot perceive why a manufactured domestic article shall not be liable to the same laws, when placed in the market for retail, even granting that the manufacturer, as such, would be exempted from this species of tax. In the language of Ch. J. Taney, in 5 Howard, 577, as applied to imports, we may say, that although a State may not have the power to prevent the manufacture of a deleterious article, “it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem advisable or necessary to guard the health or morals of its citizens.” See also Bode vs. The State, 7 Gill, 326. It is also insisted, that the fourth section of the act of 1856, ch. 353, does not contain any prohibition against opening the places therein mentioned, but only makes it the duty of persons desiring to do so, to apply for a license in the manner prescribed, and does not impose any penalty for neglecting to obtain a license before selling in quantities less than a pint. To this the answer is, that the act of 1827, ch. 117, and its supplements, and the act of 1856, are to be considered as in pari materia, all of them relating to licenses; and that 'as the third section of the act of 1827, makes it unlawful “to open, set up, or keep any ordinary, tavern, or inn, &c., &c., or any place at or in which any spirituous or fermented liquor shall be sold or bartered, in quantities less than a pint, at any one time, without first obtaining a license;” and inasmuch as the last act does not alter the punishment imposed by the act of 1827 and its supplements, persons neglecting to obtain license as prescribed by the act of 1856, must be considered as amenable to the penalties then in force. It is quite plain, that the act of 1856, was passed with reference to previous legislation on the same subject, and with those acts before the law makers, because, the last act is a literal copy of some portions of the act of 1827. It is true, that in those laws there is no mention of lager beer, and on this an argument was made at the bar, that the offence charged against the defendant, is not within the prohibitions of the act of 1827 and its supplements; but we do not concede tire force of this argument. The design of the legislature was to impose on the venders of lager beer the same restraints as were applied to keepers of houses for the sale of other liquors named in the act; and when they are expressly included among those required to take out licenses, they can plainly perceive what the law demands, and should comply. If they do not, they ate amenable to the penalties denounced against others, in whose predicament they choose to place themselves, by a manifest and wilful neglect of what the State authorities require, as necessary to the peace and order of society. "Even penal laws, which it is said should be strictly construed, ought not to be so strictly construed as to defeat the obvious intention of the legislature.” American Fur Co., vs. United States, 2 Peters, 367. 5 Wheaton, 15. And, though they are not to be extended by construction, they should receive a rational interpretation. House vs. House, 5 H. & J., 125. If a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legislature. Russell on Crimes, 49. Rex vs. Davis, Sayer’s Rep., 163. Gearhart vs. Dixon, 1 Barr., 224. 4 Bl. Com., 122. Here the penalty is provided by previous laws, and the plain intent was, to place the keepers of lager beer establishments on the same footing with others, required to obtain licenses to sell in small quantities, and, as these acts are in pari materia, they are liable to like punishment under the original and supplementary laws of 1832, ch. 273; 1834, ch. 232.

Judgment affirmed.