Parker v. State , 99 Md. 189 ( 1904 )

The traverser, George Parker, was indicted on the 21st of May, 1903, in the Circuit Court for Talbot County for selling and giving away spirituous and fermented and intoxicating liquors to one William Ewing, and on the same day in the same Court he was indicted for a similar offense committed in selling and giving away such liquors to another person. In each of these cases there was a demurrer to the indictment. These demurrers were overruled and in each case there was a plea of not guilty, tried before a jury and a verdict of guilty and judgment thereon of fine and imprisonment. In each case there was an appeal and a writ of error, but the latter were dismissed at the hearing in this Court. The two appeals, therefore, remain, but they present the same questions, viz., the constitutionality of the Acts under which the traverser was indicted and secondly as to the form of the indictment.

This case was most elaborately argued, but we think the general principles involved are well settled.

It appears that the two Acts were passed at the session of 1902, one of them being ch. 84 and the other ch. 265 containing the same provisions, both prohibiting the selling and giving away of spirituous or intoxicating liquors in Chapel District of Talbot County. There is a difference, however, in the titles of the two Acts. The title of the former may, perhaps, be properly criticised, but be this as it may, no objection has been made to the validity of the latter, ch. 265, on the ground that its title does not sufficiently disclose its subject-matter, nor is it objected to for any other reason relating to the imperfection of the title. We may; therefore, for the purposes of this case concede that the Act of 1902, ch. 84, is not valid because of the objection to its title based on Art. 3, § 29 of the Constitution. But, as we have said the title of ch. 265 of the same session of the Legislature containing the same provisions as those contained in ch. 84 is, or must be conceded to be free from any objection whatever, and hence, unless there is some constitutional objection to the Act itself, the judgment appealed from must stand — unless the indictment is bad in form.

First then as to the constitutional validity of ch. 265, 1902.

The objection as stated by the traverser is that it is "unreasonable, arbitrary aad oppressive; invades the rights of personal liberty and security guaranteed by the Constitution to the people and denies them the privileges and immunities secured to them by the fundamental doctrines of the common law."

This is certainly very strong language as applicable to the facts of the case now before us. The traverser was indicted for, and by the jury convicted of, the violation of the Act under which he was indicted, that is to say, he was convicted of selling and giving away intoxicating drinks. The question, therefore is, does the Constitution of this State or do "the immemorial principles of the common law" guarantee to the traverser the right to sell and give away spirituous and intoxicating liquors.

Even the counsel of the traverser concedes the plenary power of the State to abolish and destroy the liquor traffic or to suppress the evils of intoxication at certain places, or at certain times or to certain classes of persons. But his contention is that the Act is void because it does not contain explicit provisos excepting the giving of liquor by private citizens to the members of their household or their guests within their own homes. In our opinion no such exception is necessary to make the Act valid. In the first place we do not think that under any circumstances it was intended or that it would be reasonable, to give this Act the extended application which is sought to be given to it here on behalf of the traverser in order to make it invalid, and, secondly, assuming that its terms are so general that it might be construed as suggested, yet if such a construction would, as contended, make the Act invalid, it would be our duty, if possible, to so construe the language as to make the Act valid and effective. This rule of construction is so well settled that it requires no elaboration. Temmick v. Owings,70 Md. 251. But there is nothing in either of the records before us to require the discussion or decision of the question just indicated, for non constat the traverser was not one of the very class against which the provisions of the Act were aimed, namely, persons who unlawfully sell under the guise of giving away intoxicants. It is conceded the Legislature has the right not only to forbid the sale, but the manufacture of liquor, but such an exercise of the power to prohibit the sale would practically be nugatory unless accompanied by the power to prohibit giving it away, for the reason that it would be impossible in many cases to prove a sale if a gift be allowed.

But, finally, it is contended that the indictments are bad because they fail to negative the exceptions contained in the Act on which they are founded.

By the Act in question codified as secs. 127, 127A and 127B of Art. 21, it is provided by sec. 127 that "it shall not be lawful for any person, house, corporation, company or association to sell or give away in Chapel District of Talbot County any spirituous or fermented liquor, c. Sec. 127A provides that any person who sells contrary to the provisions of sec. 127 shall, on conviction, be fined and imprisoned as therein provided; and, finally, by sec. 127B it is enacted that nothing contained in this Act shall be construed to prevent the compounding and sale of such liquors for medicinal purposes by a regular pharmacist or druggists having a license for such business. Here then we have a case coming directly within the settled rule in this State so often announced by this Court, "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 therefore, that the indictment should on its face have negatived that the traverser was a regular pharmacist or druggist, having a license for such business, c., c. In the secs. 127 and 127A of the Act we have the general words of prohibition making it unlawful for any person, corporation, c., to sell or give away; and in the subsequent sec. 127B an exception is created in favor of pharmacists and druggists. Numerous cases from other States and the Supreme Court of the United States were cited by counsel, but we find ample authority among the decisions of this Court to sustain our conclusion. Kiefer v. State, 87 Md. 568, and cases there cited.

There was considerable discussion in the argument of this case in regard to the legitimate exercise of the police power, the invasion of the private rights of the citizen and the violation of the privileges and immunities secured to him under the Constitution and the fundamental doctrines of the common law, but we think what we have said disposes of the questions involved in these appeals, and this being so, we refrain from a discussion of the constitutional questions which were so earnestly argued.

Judgment affirmed in both appeals, with costs.

(Decided March 22d 1904.)