Arnreich v. State

Digges, J., delivered the opinion of the Court. Ferdinand M. Arnreich, George Weil and George H. Sloatfield were separately indicted and convicted in the Criminal Court of Baltimore City for the violation of section 12 of article 56, of the Annotated Code of 1924. This section provides: “No person or corporation other than the grower, maker or manufacturer shall barter or sell or otherwise dispose of, or shall offer for sale any goods, chattels, ⁹³ wares or merchandise within this State without first obtaining a license in the manner herein prescribed.” Each of these parties was, in separate trials, adjudged guilty and sentenced to pay a line of one dollar and costs. From these judgments the respective defendants have prosecuted appeals to this Court.

In this court, the three appellants being represented by tbe same counsel, their cases were argued together. In the lower court there was on behalf of each defendant a motion to quash the indictment filed, which being overruled, a demurrer was then filed, which also was overruled by tbe lower court; there was then filed on behalf of each defendant four special pleas in bar, to which said plea in bar the State demurred, which demurrer the lower court sustained. Whereupon the plea of not guilty was entered and upon this plea the trial proceeded and resulted as above stated. The first contention of the appellants is that their motion to quash and demurrer to the indictments should have been sustained, for the reason that the indictments should have shown affirmatively on their face that the prosecution was with the approval of the 'Comptroller of the Treasury.

This contention is based upon the language of chapter 138 of the Acts of 1924, now codified as section 7 of article 56 of the Code of 1924. This section, after providing! for the appointment by the Comptroller of the Treasury of a chief inspector of state licenses and three assistant inspectors of state licenses, provides: “And the Comptroller of the Treasury is hereby authorized and empowered to superintend the issuance of all licenses by the clerks of the several courts of this State, and he is further empowered to investigate, through the said inspectors to be appointed under tbis section, the adequacy of all licenses applied for and issued by the clerks of the several courts of this State to the end that all persons, firms and corporations required to procure licenses under the laws of this State shall procure the same according to the laws thereof. ⁹⁴ and the said inspectors, with the approval of the Comptroller of the Treasury, shall institute proceedings for the prosecution of all persons, firms or corporations failing to procure a license or a license for an adequate amount, said prosecution to he in accordance with Section 6 of this Article, and the Comptroller of the Treasury is hereby empowered to have general supervision over the license laws of this State. Provided, however, that any law or part of law under which the State Tax Commission has exercised or may exercise any authority similar to that conferred upon the State Comptroller by this section, be and it is hereby repealed to that extent, it being the purpose of this section to concentrate in the office of the State Comptroller the power to supervise the issuance of all licenses issued by the clerks of the several courts of this State, and that this power shall he exercised by no> other official.” Section 6 of article 56 of the Code of 1924 provides: “It shall be the duty of the sheriffs and constables of the several counties and Baltimore City, and the agents and inspectors of the State Tax Commission of Maryland to make diligent inquiry of all persons, firms and corporations doing business in this State, and apprehend and take before some Justice of the Peace, all persons, firms and corporations found doing business without a license, as may be required by law, to be committed or held to hail for appearance at the succeeding term of the Circuit Court for the county or Criminal Court of Baltimore City to answer the charge of selling goods without a license.” And further provides for the penalty upon conviction. Section T of article 56 was the re-enactment with amendments, by chapter 138 of the Acts of 1924, of chapter 516 of the Acts of 1922, and the only change made by the Act of 1924, chapter 138, was to empower the Comptroller of the Treasury to appoint four inspectors of state licenses, one to be designated as chief inspector' and the other three assist ⁹⁵ ant inspectors, in the place of a single inspector, as provided hy the Act of 1922.

Prior to the enactment of chapter 516 of the Acts of 1922, the State Tax Commission had authority to supervise the issuance of certain licenses, and the effect of the proviso in that act, also contained in the Acts of 1924, oh. 138, was to withdraw from the State Tax Commission the authority to exercise this supervision, and to concentrate it in the office of the Comptroller of the Treasury. It is true that the Acts of 1922, eh. 516, as well as section 1 of article 56 of the present Code, authorized the inspectors appointed hy the Comptroller to institute proceedings for the prosecution of all persons, firms or corporations failing to procure a license, or a license for an adequate amount, hut this provision does not repeal section 6 of article 56, which makes it the duty of the sheriffs and constables of the various counties and Baltimore City to apprehend and institute proceedings for the conviction of all persons who have failed to take out a license as required by law. In other words, the authority given to the license inspectors, with the approval of the Comptroller, is in addition to and not in lieu of the provisions of section 6 of article 56. This, we think, is the proper construction of the language used, and wa's evidently the legislative intent.

To give it any other construction would be to' say that the Legislature, after declaring the failure to take out a license by all persons who by law were required to do so, was a misdemeanor and punishable by fine and imprisonment, meant that they could only be convicted, or proceedings leading to their conviction could only be instituted, by warrants sworn out by the inspectors of licenses with the approval of the Comptroller. It is clear that the Legislature could not have had such an intent, but loft the violation of this law to be punished by information furnished a’s in all other violations of law, and in addition thereto, made it the specific duty of all sheriffs and constables to apprehend violators of this law, and also imposed a similar duty on the inspectors of licenses with the approval of the Comptroller. We do not think that ⁹⁶ the approval of the Comptroller must be apparent upon the face of the indictment or warrant, even if the approval of the Comptroller in these particular cases were a prerequisite of conviction, as this would be properly a matter of defense; but this question is immaterial, because it is our view that if a grand jury had sufficient evidence that a person or corporation is conducting such a business as the law requires that a license shall be- taken out therefor, without having such license, it undoubtedly could indict such person or corporation for violation of the law, upon its own motion or upon any evidence adduced before it. All of the defendants admit that they have no license.

The next contention is that the appellants are not required to take out the license provided for by section 42 of Article 56 because this section by its terms has no application to the grower1, maker, or manufacturer, and it is contended that the appellants are manufacturers. The testimony shows that all three of the defendants conducted stalls in Lexington Market in the City of Baltimore, from which they sold to the general public certain articles of food. The testimony of Arnreich is that he had a stall in Lexington Market where he sold fish on every week day; that he, like the other defendants, had such license as the City of Baltimore required; that under the terms of the Baltimore City license he could not sell anything but fresh sea food, fish, oysters and clams; that he bought the articles, which he sold, in the wholesale market, just as they come from the water, and in order to sell them he had to clean them and occasionally he would split a shad down the back, or sell fresh salmon by the pound, after having bought it whole, cleaned it, and cut it into parts; that this also applied to all large fish; that as to oysters, he bought them shucked and sold them in the same condition, by the pint or quart, as desired; that he had owned the stall in the said market for about forty years and never during that time paid a state license fee, and that such a fee was never demanded of him until about Christmas, 1924. George Weil, the appellant in No. 101, testi ⁹⁷ fled that he owned his stall in Lexington Market, which he purchased about five years ago; that he had been in the market for twenty-seven years, but prior to five years ago he owned another stall; that he paid all of the license fees and rent required by the City of Baltimore, amounting to sixty-six dollars a year, and that this license fee and rent had heen paid to the city for the year 1924; that he had been conducting a stall in Lexington Market owned by him for twenty-seven years, and during all that time sold veal, and for a short period lamb; that he was engaged in no other line of business at any other place in the state and that he never paid to the‘State of Maryland, or any officer thereof, acting on behalf of the State, any license fee, and that no such state license fee had ever been demanded of him during the period of twenty-seven years; that he was familiar with what is going on in the market, and that no one conducting a similar business paid the state license fee prior to the year 1924; that he sells veal by the pound, buys carcasses of calves as a whole and cuts them up into pieces; that he buys some of the calves alive, and kills them himself, and others that have been killed; that in both cases he does the carving and cutting up of the veal himself, so as to make it prepared for edible use; that it requires time to learn to cut and carve vea'l; that he keeps no stock of meat on hand; that he buys carcasses of calves and lambs, which are delivered to him at his stall in the market, and keeps them until sold and then purchases others, that the carcasses are not cut up in different parts when brought to him, but are generally whole.

In the case of the appellant George II. Sloatfield, the record discloses that he has owned and operated a stall in Lexington Market for twenty-five years, and, like the other appellants, has paid all the license and rent required by the laws of Baltimore City, and has not paid any to the State of Maryland, nor has any such heen demanded of him, prior to 1923; that he buys lambs alive in Baltimore, Chicago and Buffalo, besides which he occasionally buys dressed meats; ⁹⁸ he has the lambs killed at the abattoir, employing men there to do this; that he then skins them and prepares them for market with the help of two men who work for him; that such, preparation requires some skill; that with the aid of one helper he carves them into such shape as to make them ready for service on the table, and that this also requires training; that he sells no meats to customers except that taken from the carcasses of the lambs, which he brings to Baltimore and butchers, and the dressed meats which he buys in between to keep up his stock, and which are bought from other butchers’ stalls and western houses; that he purchases animals on the hoof and never sells them -on the hoof; that as a regular business he kills and butchers all these animals; that the value of the stock that he has on hand at any one time does not exceed one hundred dollars. On cross-examination the witness testified that he sold smoked meat and dressed meat; that he buys the meat and does not smoke it himself; some of the dressed meat he kills himself and some he buys from Baltimore dealers and from western dealers. It is difficult, if not impossible, to define the word “manufacturer,” as used in the statute now under consideration; and the courts throughout this country, in construing similar statutes, have given a variety of definitions.

This Court, in Carlin v. Western Assurance Co., 57 Md. 523 , when construing the provisions of a fire insurance policy on a steam flour mill, fixtures and machinery, determined that it was a manufacturing establishment within the forfeiture clause contained in the policy, which provided: “If it be a manufacturing establishment running in whole or in part over or extra time or running at night, then and in every such case this policy shall become void.” The 'Court in that case said: “The counsel for appellant contended that making flour from wheat, reasoning from the etymology of the word, and the nature of the process, is not manufacture. But whilst, from its derivation, the primary meaning of the word ‘manufacture’ is making with the hand, this definition is too narrow for its present use. Its mean ⁹⁹ ing has extended as workmanship and art have advanced; so that now nearly all artificial products of human industry, nearly all such’ materials as have .acquired changed conditions or new and specific combinations, whether from the direct action of the human hand, from chemical processes devised and directed by human skill, or by the employment of machinery, which after all is but a higher form of the simple implements, with which the human hand fashioned its creations in ruder ages, are now commonly designated as 'manufactured.’ ” The Court then goes on to cite the definition of the phrase “to manufacture” as given by Burrill, Abbott, Webster and Worcester. In the case of Carroll County v. Shriver, 146 Md. 412 , we held that a company engaged in canning corn, beans, peas and succotash, and employing for the purpose intricate and expensive machinery, is engaged in manufacturing within the meaning of the Act of 1924, chapter 528, authorizing the county commissioners, by resolution, to exempt from, taxation the tools and machinery of those so engaged.

And in the more recent case of H. M. Rowe & Co. v. State Tax Commission, 149 Md. 251 , where the appellant composed and arranged contents and forms for its books, while the mechanical labor or most of it necessary to produce the finished product was done by others, but by its order and direction, the appellant claimed to be the real producer and the manufacturer, and therefore exempt from taxation under the statute and ordinances; and it was held that the business so operated was not a' manufacturing business within the meaning of chapter 528 of the Acts of 1924, and the ordinances of Baltimore Oity passed in pursuance of said act. The