Parkinson v. State

JBccleston, J., delivered the opinion of this court. At the April term 1858, of the Circuit court for Anne Arundel county, the plaintiff in error was indicted under the Act of 1858, ch. 55. The offence, as charged in the indictment, is: “That Thomas Parkinson, late of said county, yeoman, on or about the fifth day of April, in the year of our Lord, eighteen hundred and fifty-eight, with force and arms, at the county aforesaid, within the corporate limits of the city of Annapolis, unlawfully did give a certain quantity of fermented liquor, to wit, one half pint of fermented liquor, commonly called ale, to Joseph W. Barber, who was then and there a minor, under the age of twenty-one years, without the written order of the parents and guardian of said Joseph W. Barber authorizing the said giving of the said quantity of fermented liquor to the said Joseph W. Barber, contrary to the form of the Act of Assembly,” &c. To this indictment the traverser filed a general demurrer, which was overruled by the court.

The traverser then pleaded non cut., and upon a trial by a jury they rendered a verdict of guilty. A motion in arrest of judgment was then made, and the following reasons were assigned: 1st. Because the indictment charges the traverser, as a private individual, with giving a glass of ale to the minor therein named, he not receiving any compensation therefor, nor disposing of the same with a view to profit in the way of trade, and the traverser insists, that this is not a violation of the Act of 1858, ch. 55, under the true and proper construction of said Act. ¹⁹⁰ 2nd. Because the indictment does not sufficiently negative the existence of a written order. 3rd, Because when the traverser demurred to the indictment, the court, for the foregoing reasons, should have given judgment for the traverser upon said demurrer. 4th.

Because the indictment is, in other respects, defective. . The motion in arrest having been overruled, the case is brought before this court by a writ of error. In his printed statement, the counsel for the plaintiff in error presents three points, on which he relies for a reversal of the judgment below. Two of those points are the same as the first and second reasons assigned upon the motion in arrest.

The other is: “That the indictment charges the commission of the offence on the 5th of April 1858, and the Act makes no provision for its publication, or notice of its contents, (even to persons who are to take out a license subject to its provisions,) before the 1st of May ensuing, and should consequently be construed not to be operative until that time.” The title of the Act referred to is, “An Act to prohibit the sale of intoxicating liquors in the city of Annapolis, or within five miles thereof, to minors and people of color.” The first section enacts, “That from and after the first day of April next, it shall not be lawful for any person or persons, whether licensed to sell spirituous liquors or not, to sell, dispose of, barter or give, within the corporate limits of the city of Annapolis, or within five miles thereof, any spirituous or fermented liquors or cordials of any kind, or in any quantity whatever, to any youth or minor under the age of twenty-one years, without the written order of the parents and guardian of such minor.” For the first offence it imposes a fine of not less than fifty dollars, nor more than $200; and upon a second conviction for a like offence, the party is to be fined not less than $100, nor more than $400, and be confined in jail until the fines are paid. Notwithstanding the comprehensive declaration, that “it shall not be lawful for any person or persons, whether licensed to sell spirituous liquors or not,” the traverser’s counsel has ¹⁹¹ insisted, in the argument of his first point, that the Act never was intended to include a private individual, but has reference to persons who are licensed to sell liquor. This, he says, is the correct interpretation, when all parts of the Act are considered. In support of which view reference has been made to the decision in the case of Bode vs. The State, 7 Gill, 326 .

The Act of 1847, ch. 193, prohibiting the sale of liquor on the Sabbath, was there construed as intended to embrace only licensed tavern-keepers and retailers, although, by the first section, it is enacted, “That it shall not be lawful for any person or persons, within this State, to sell,” &c. It will be seen that, in addition to the fine imposed for the first offence, if there should be a second conviction for a like offence, the license of the person so offending should be declared null and void by the judge of the court. The second section of that Act, provided, that tavern licenses, thereafter to be issued, should contain a clause “especially excepting the Sabbath day from the operation of said licenses.” Annulling all licenses in cases of convictions for a second offence, and prescribing the clause to be inserted in tavern licenses, are provisions which induced the court, in Bode vs. The State, to construe the Act, then before them, as only intended to embrace licensed tavern-keepers and licensed retailers, notwithstanding the general language made use of in the Act. What is said by the court, at page 329, will show, that the restricted construction given to the general language resulted from the provisions we have alluded to.

The traverser’s counsel insists, that the language used in the Act of 1847, is quite as general and comprehensive as that of the Act before us, and that the provisions in both, with regard to annulling a license for a second offence, are sufficiently similar to require a construction of the latter quite as restricted as that given to the former. But we do not think the same restricted interpretation can, with propriety, apply to both. In the Act before us, we find the important words, “whether licensed to sell spirituous liquors or not,” and neither they, nor words of similar import, are contained in the Sunday law, (as it has been usually called.) And when it is seen that the case of ¹⁹² Bode vs. The State had been decided’ before the passage of the late Act, it may be supposed the Legislature had knowledge of that decision, and were thereby induced to use the' words just quoted, for the purpose of preventing the generaF language, employed in the former part of the same section, from receiving such an interpretation as had been given to the general language of the Sunday law. Another important difference between the two laws- is> in regard to the provisions for annulling licenses.

After prescribing a penalty, in the former law, for the first offence, it is then said, “and if convicted a second time for a’ like offence, the license of the person or persons so offending' shall be declared null and void by the judge of said court.”' The forfeiture of the license is not put hypothetically, as might have been expected, in a law intended to punish both licensed’ and unlicensed persons who might offend against the same. It is not said, if the person- offending shall have a license it. shall be annulled, but the language is the same as if the previous part of the same section had, in express terms, provided for prohibiting licensed persons only from selling on the Sabbath. The last Act is veiy different. The first section of it says’ nothing in regard to annulling a license,-although it directs how a person shall be puished for a first and for a second) offence, ’ The second section provides for annulling the license of any person having one, who may commit an offence against the' law, but it begins by saying, “That if any person, having a license of any kind, authorizing the sale of spirituous liquors, shall violate the provisions of this Act,” &c.

Putting the matter thus hypothetically,- not only does not/ in any degree, restrict the general words, “any person or persons, whether licensed to sell spirituous liquors or not,” but tends to show more clearly the propriety of considering the Act, as intended to include persons, either with or without licenses. If the law embraced only the first class, it would have been quite sufficient to say, the license of the person offending should be annulled. There could be no necessity for ¹⁹³ putting the forfeiture of the offender’s license expressly Upon the contingency of his having one, if the law embraced none but licensed persons. Such a contingent provision could only be useful, supposing the law to include others also.

In our opinion the Act of 1858, ch. 55, is not confined in its operation to licensed tavern keepers and licensed retailers. We understand the present traverser has no license, but bought tiie ale in a hotel and gave it to the minor. It has been said the word “give,” as used in this Act, has the same meaning as the word “sell;” but if it has not, then so much of the Act as undertakes to make “giving” an of-fence, and to impose a penalty for the same, is unconstitutional, and consequently this indictment cannot be sustained. This objection to the validity of the Act is based upon the 17th section of the 3d Article of the Constitution, which provides, that “every law enacted by the Legislature shall embrace but one subject, and that shall be described in the title.” It cannot be doubted, that this restriction upon the Legislature, was designed to prevent an evil which had long prevailed in this State, as it had done elsewhere; which was the practice of blending, in the same law, subjects not connected with each other, and often entirely different.

This Was not unfrequently resorted to for the purpose of obtaining votes, in support of a measure, which could not have been carried without such a device. And in bills of a multifarious ciiaracter, not inappropriately called omnibus bills, provisions were sometimes smuggled in and passed, in the hurry of business, toward the close of a session, which, if they had been presented singly would have been rejected. In Davis vs. The State, 7 Md. Rep., 160 , this court has very clearly expressed what is understood to have been the evil, which was designed to be corrected by this restrictive provision of the Constitution. We do not think it should be so construed as to render the present law unconstitutional in any of its provisions, if If the strict interpretation, insisted upon in argument, should be adopted, some portions of many of the Acts which have been passed will be rendered null and void. ¹⁹⁴ Whilst it is certainly proper that this provision should be so-construed as to prevent a repetition of the evils which it was designed to prohibit, it is no less proper to avoid the opposite extreme, the necessary effect of which would be, in many instances, greatly to embarrass the Legislature in the discharge of their duties, and would also be calculated to produce much-controversy in regard to the validity of many laws.

The argument against the present law is, that if “give” and .“sell” are not the same, then, as the title only prohibits the sale of liquor, the title rightfully describes one subject only, but the law embraces more than one, when it attempts to make it unlawful for any person either to sell or give. It therefore becomes necessary to ascertain, whether, according to the true spirit and meaning of the Constitution, this law embraces but one subject, and if so, whether that subject is sufficiently described in the title. We deem it proper now to say, that, in our opinion, “to-give,” in the present law, does not mean the same as “to-sell.” Our views on this point, however, will be more fully' stated hereafter. 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 is1 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, cannot 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. In 1 Kent’s Com., 461, 462, (6th Ed.,) the learned author says: “It is an established rule in the exposition of statutes,. ¹⁹⁵ that the intention of the law-giver is to be deduced from a view of the whole, and of every part of a statute taken and compared together.” Again, in note d,page 467, it is said: “Though penal statutes are said to be construed strictly, yet the courts are bound to give effect to their plain and obvious meaning, and not narrow the construction. They must search out and follow the true intent of the lawgiver. ” See also the authorities there cited. At page 468 the same writer says: “The great object of the maxims of interpretation is, to discover the true intention of the law.” The Supreme Court, in American Fur Company vs. The United States, 2 Peters' Rep., 367, have said: “Even penal laws, which, it is said, should be strictly construed, ought not to be construed so strictly as to defeat the obvious intention of the Legislature.

This was laid down as a rule by this court, in the case of The United States vs. Wiltberger, 5 Wheat., 76 .” See also Keller, et al., vs. The State, 11 Md. Rep,, 536, and House vs. House, 5 H. & J., 127 . These rules are equally as applicable, when the effort is to discover what is the subject of a law, according to the meaning of the Constitution, as when the object is, to ascertain the proper construction of a law in regard to any other matter. 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 give,” 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.

Although selling alone is mentioned in the title, yet, to find out what the law was intended to prevent, we are at liberty to resort to the body of the law, in which, not only selling, but disposing of, bartering and giving, are all included. Seeing that all those different modes of obtaining liquor are so carefully guarded against, we cannot suppose the sale of it was, ¹⁹⁶ the chjef mischief designed to be prevented, but the procurement of it in any way. If the mischief designed to be corrected was the procurement of the liquor, by those named in the Act, that must be the subject of the law. And that, we think, is sufficiently described in the title.

We have seen that, in the body of the law, different means are prescribed for correcting the mischief, One of those means, that of prohibiting a sale, is mentioned in (he title, in such a mapner as to show the legislative intention of restraining or prohibiting the procurement of intoxicating liquor by those prescribed in the title and in the Act. If it were necessary to insert, in the title, all the details provided for carrying a law into effect, it would require a title nearly as long as the law itself. But this cannot be necessary. From the very nature of the subject, (a title to an Act,) the Convention must have designed that the description of the subject therein, should be but a brief and concise statement, mpfely sufficient to indicate the nature of it.

Before undertaking to define the different meanings of the two words, “sell” and “give,” it may be proper to state a few of the rules relating to the construction or interpretation of slptutps, in addition to those already stated. In Dwarris on Statutes, 694, in 9th Law Lib., after stating four cardinal rules of interpretation, as being alike applicable to penal and beneficial statutes, whether restrictive or enlarging of the common law, the author adds: “It was then held to be the duty qf the judges, at all times, to make such cpnstructiop as should suppress the mischief and advance the remedy; putting down all subtle inventions and evasions for continuance of the