Benesch v. State

Boyd, C. J., delivered the opinion of the Court. The appeals of Anton Vanura and Lizzie Vanura v. State and Moritz Benesch v. State were heard together. In each case a demurrer to the indictment was overruled, a plea of not guilty was entered and a verdict of guilty was found by the Court, by whom the traversers elected to be tried. The only questions before us are presented by the demurrers to the indictments, and as the parties were indicted under the same section of the statute (section 9E of Chapter 31 of the Acts of 1916), the two cases will be disposed of by one opinion.

Those made liable to prosecution and punishment by section 9E can properly be divided into three clases, and for ⁵⁰⁷ convenience we will insert the letters (a) and (b) before the two clauses involved in these appeals, although they are not in the statute. They are as follows: “9E. (a) Any person, or any officer or member of any corporation, association or club owning, leasing, renting or occupying any park, ground or shore in Baltimore County who shall lease, rent or hire out the same for a picnic, crab feast, shad bake, barbecue, oyster roast or feast, or other entertainment or assemblage to bo held on the Sabbath or Lord’s Day, commonly called Sunday, and at which any spirituous, fermented or intoxicating liquor of any kind, or lager beer or near-beer, are drunk or to be drunk on said • Sabbatb Day; “(b) or any person, or any officer or member of any corporation, association or club, who shall give, hold, conduct or take part in any picnic, crab feast, shad hake, barbecue, oyster roast or feast, or other entertainment or assemblage on the Lord’s Day, commonly called Sunday, at which spirituous, fermented or intoxicating liquor of any kind or lager beer or near-beer are drunk or to he drunk on the Lord’s Day, commonly called Sunday, * * * shall be guilty of a misdemeanor and upon conviction thereof shall pay a fine of not loss than $200.00 nor more than $1,000.00 or he imprisoned in jail or in the House of Correction of Maryland for not less than 30 days, or suffer both fine and imprisonment, as aforesaid, in the discretion of the Court.” The grounds for the demurrer relied on are stated in the briefs for the appellants to he: 1st. That section 9E is unconstitutional and void in that, the title of the Act is defective—section 9E not being germane thereto; 2nd.

That the section is unconstitutional and void because it has, no real or substantial relation to the police power of the State; being a plain invasion of rights secured by the fundamental law and being oppressive and discriminating and obnoxious to ⁵⁰⁸ the 14th Amendment of the Federal Constitution; and, 3rd. That the indictment does not properly embrace'the language of the statute in that it is not specific and does not apprise the traversers properly of the crime with which they are sought to be charged. We will consider them in that order. First: The title to the Act is as follows: “An Act to repeal and re-enact with amendments Sections 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 21 and 26 of Chapter 179 of the Acts of the General Assembly of Maryland of 1908, entitled ‘An Act to regulate the sale and the granting of licenses for the sale of spirituous and fermented liquors in Baltimore County,’ and to add eight new and additional sections to said Chapter 179,” etc.'—Section 9F being one of the eight added.

The Act of 1908, referred to in the above title, contained 29 sections. . The title to that Act is correctly quoted in that of the Act of 1916, and it is contended that the latter is not a sufficient compliance with the requirement of Section 29 of Article 3 of the Constitution, in so far as Section 9F is concerned. It could not be successfully contended, in view of the decisions of this Court, that such a title as that of the Act of 1908, would not be sufficient to sustain a prohibition against selling or giving away liquor on Sunday, and to provide penalties for its violation. It would clearly be a compliance with the Constitution, as construed in former cases of this Court, when it purports “to regulate the sale and the granting of licenses for the sale of spirituous and fermented liquors.” The experience of those connected with the administration of the law, as well as the many decisions of this and other 'Courts, has taught them that there are many attempts to evade the laws regulating the sale of liquors.

If, then, it be found that the ordinary prohibition against selling or giving- away liquor on Sunday is not sufficient to correct the evil sought to be corrected, and that other provisions are necessary, in order to accomplish the object of such laws, it can not properly be said that such provisions are not germane. ⁵⁰⁹ No one would now question the validity of a statute having a title such as that of the Act of 1908, because in the body of the Act screens, curtains and other obstructions were required to he removed on Sundays and other days on which sales are prohibited, and it was provided that sales at times which are permitted can only be made in some room fronting on a street or public highway. The object of such provisions is to aid in the enforcement of the laws prohibiting sales and the disposition of liquor on Sundays and at other prohibited times. It is common knowledge that the excessive use of intoxicating liquors, especially where many persons are gathered together, is liable to produce disorder, rioting and disturbance of the public peace. Under such conditions tbe place is likely to become a public nuisance.

If it bad been found that in Baltimore County, which adjoins a large city, the provisions of the local liquor laws were inadequate to prevent disorder, and insure the enforcement of the law, and that such provisions as those in Section 9F were necessary for that purpose, then they are germane to the subject of the Act. It will be well to recall some of our decisions, which illustrate the1 construction of this constitutional provision by us and our predecessors, when statutes concerning the sale, etc., of liquor were involved. In the familiar case of Parkinson v. State, 14 Md. 184 , Chapter 55 of the Acts of 1858 was under consideration. The title was, “An Act to prohibit the sale of intoxicating liquors iu the City of Annapolis, or within five miles thereof, to minors and people of color,” and by the first section of the Act it was provided that “it shall not he lawful for any person or persons, whether licensed to sell spirituous liquors or not, to sell, dispose of, barter, or give within” the prescribed limits any spirituous or fermented liquors to a minor, without the written order of his parents or guardian.

Parkinson was indicted for giving liquor to a minor. In discussing the constitutional provision then in force, that “every law enacted by the Legislature shall em ⁵¹⁰ brace but one subject, and that shall be described in the title”—being the same as section 29 of Article 3 of the present Constitution—the Court said: “What is the subject of a penal law may generally be perceived by ascertaining what mischief or evil the law was designed to remedy or to prevent. And if this be true, there is no difficulty in knowing what is the subject ‘embraced’ in the Act under consideration. The plain and obvious meaning of its language clearly manifests an intention to prohibit or restrain minors.and people of color from obtaining intoxicating liquor in the City of Annapolis, or within five miles thereof.

Prohibiting the sale of it to them is only one of the means by which the chief intention of the Legislature was to be accomplished. Employing other means, designed to effect the same purpose, can not be properly considered the introduction of another or different subject, within the meaning of the constitutional restriction. If it were so, no law providing several modes for effecting its main purpose would be valid in all its provisions.” Again, it is there said: “Looking then to all parts of this Act, we consider it evident that the Legislature intended to prohibit the classes of persons named from obtaining intoxicating liquor, and that this is the one subject of the law. Making it unlawful ‘to sell, dispose of, barter or give5 the liquor and imposing a penalty upon persons who should do so, without the written order or certificate required, were but the means provided for effecting the chief design.” In Baltimore City v. Flack, 104 Md. 107, Chief Judge McSherry considered this constitutional provision at length, ■and on page 116 in speaking of Parkinson v. State, supra, said: “Wherein the distinction was pointed out between subject of a penal enactment—which must be stated in the title —and the means by which the legislative intention was to be accomplished—which need not be described in the title,” and again, “The contention was that as the title was restricted to the sale of liquors the provision in the body of the statute prohibiting the giving of liquors was not included in the title ⁵¹¹ and was therefore void.

But the Court held that it was. the manifest intention of the legislation to prohibit or restrain minors and people of color from obtaining intoxicating liquors —that was the subject of the law.” In Cearfoss v. State, 42 Md. 403 , the title of the Act was: “An Act prohibiting the sale of spirituous or fermented liquors, in the several counties of the State on the day of •elections.” The Act forbade liquor dealers and others, directly or indirectly, “to sell, barter or give, or dispose of any spirituous or fermented liquors, ale or beer, or intoxicating drinks of any kind” on election days. The traverser was indicted for giving whiskey on election day and he plead “that in his own house he was visited by some friends, who, in the course of hospitality, partook of some whiskey which he had there for his own use,” but the Court sustained a demurrer to the plea, and the traverser was found guilty. The Court said: “According to the express, terms of this law, and the policy the Legislature seemed to have in view, there is no escape from the conclusion that this case is within the letter and mischief of the law, and which can not be avoided by the Courts, without a refusal to enforce its provisions.” In Parker v. State, 99 Md. 189 , it was said by Judge E'ow-i.Eig in speaking for the Court: “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.” In Mitchell v. State, 115 Md. 360 , the title provided for submitting to the voters of Worcester County the question whether liquor should be sold and provided for penalties., but section 2 of the Act made it unlawful in addition to the sale “to give away,” “otherwise dispose of,” “to take orders for,” and “to operate as distributing or collecting agents for” any liquor. The objection that the statute was unconstitutional on account of those provisons ⁵¹² was said by Judge Bbiscoe to be “obviously not tenable upon authority.” It would oftentimes be impossible to prove sales at picnics and other entertainments mentioned in the statute, and the Legislature realizing the necessity for preventing the use on such occasions enacted section 9F.

There is no reason why owners or holders of such properties should be permitted to 'rent them, if the use of them in the way prohibited is liable to result injuriously to the peace and quiet of the community on .Sunday. Perhaps the best way to' prevent it was to do what that section does—prohibit the renting, etc., for picnics, etc., where liquor was to be drunk. If the owner acted in good faith and had no reason to believe that liquor was to be drunk, and it was done without his knowledge or connivance of any kind, then a different question would arise, but in the indictment against the Vanuras they were charged with leasing, renting and hiring out a certain park, ground and shore for a picnic, etc., to be held on Sunday, at which beer “was then and there drunk and was then and there to be drunk on said Sabbath' Day,” and in the indictment against Benesch it was alleged that he did hold, conduct, give and take part in a certain picnic on Sunday at which beer was drunk and was to be drunk. ■ It must not be forgotten that this section is a part of the Local Liquor Laws for Baltimore County, and its provisions were intended to aid the regulation of not only the sale of liquor, but of its use and, obtention at prohibited times and places. The statute was doubtless intended to reach, amongst other things, the sale of liquor without license, and it is apparent that it would be very difficult at such gatherings as those referred to in this section, to prevent evasions of the law by those who are not licensed, and licensees were pro-' hibted from selling or giving away liquor on Sunday, under the law in force when the statute was passed.

If conditions were such from the use of intoxicating liquors on Sunday in that county, as to require legislation of this character, we ⁵¹³ can see no reason why it should not he included in this Act, which was known as the Liquor Law for the County. It can he properly inferred from, the provisions' of this section that such conditions did exist. Regulations of law in reference to intoxicating liquors would naturally be expected to be found in it. In legislating on such a subject it would be practically impossible to specifically refer in the title to everything that was deemed proper to be embodied in the Act, without making the title so long that its length might have the effect of causing those interested to overlook the very thing they were most interested in.

It was not the design of the framers of the Constitution to require a bill of particulars to be set out in the title. Many additional decisions might be cited, but those referred to above are sufficient to show what this 'Court and its predecessors have regarded as the subject of an Act of this kind. Second: It is further contended that this section has no real or substantial relation to the police powers of the State. In Lochnar v. State, 111 Md. 660 , Judge Burke referred to Chapters 174 and 179 of the Acts of 1908.

Chapter 174 prohibited licenses for the sale of liquor within the town of Sparrows Point and within three miles of the school house in that town. Judge Busier: said: “The Act of 1908, Chapter 179, contains, careful and well considered restrictions concerning the sale of liquors in Baltimore County. It is a police regulation, and its object is to conserve the public morals and public order by forbidding the unregulated and indiscriminate sale of spirituous and