Phillips v. State

Boyd, C. J., delivered the opinion of the Court. The appellant was convicted of selling fermented lager beer in violation of the statute applicable to Baltimore City relating to the sales of intoxicating liquors. The material question' for our consideration is the construction of the provisions of Article'4 of the Code of Public Local Laws, in reference to a license “to conduct a bottling business by selling fermented liquors only, and in quantities or packages not less than twelve pint bottles.” There are six counts in the indictment, and the traverser filed a special plea to the indictment and to each count- thereof. That plea was demurred 'to by the State and, the demurrer having been sustained, a plea of not guilty was entered, and an agreed statement of facts was filed.

As the plea and the agreed statement were intended to raise the same question, we will not discuss them separately or pass on any purely technical points as to the statements in them. Section 661 of Article 4 of the Code of Public Local Laws provides that: “Ho person shall sell, offer for sale or keep for sale in the City of Baltimore any intoxicating liquors ex-(opt as hereinafter provided; but this shall not apply ³⁹³ to sales made by a person under a provision of law requiring him to sell personal property, nor to sales of liquors by wholesale, nor to sales by the maker, brewer, or distiller thereof, nor to sales by bottlers of fermented liquors not to be drunk on the premises; save and except as hereinafter specially provided in reference to wholesale dealers and jobbers, brewers, distillers and bottlers in section 688, wherein the rights and duties of said classes of persons are set forth and defined.” , A Board of Liquor Incense Commissioners for Baltimore City is provided for. and Section 611 provides that no licenses to sell intoxicating liquors other than by wholesale traders, distillers, brewers, rectifiers and bottlers of fermented liquors shall be granted in the city of Baltimore except by said Board. Various provisions and regulations are then prescribed in reference to licenses to be granted by the Board, and section 688 (as amended by Ch. 196 of the Acts of 1908, see p. 610 of Acts) provides that distillers, brewers and wholesale dealers or jobbers, other than wholesale druggists, shall be allowed to sell spirituous liquors in quantities of not less than one pint each, and fermented liquors in packages of not less than two dozen pint bottles, or twelve quarts, each, but in no case to be drunk on the premises; that distillers and brewers shall require no licenses, and wholesale dealers and jobbers (other than wholesale druggists) shall he entitled to receive a license upon applying to tlie Clerk of the Court of Common Pleas, and paying the sums named, which sum after May 1st, 3910, was one thousand dollars per anna in. That section then provides: “But any person, co-partnership, or corporation (other than brewers, who, as hereinbefore stated, require no license) may be licensed to •conduct a bottling business by selling fermented liquors only, and in quantities or packages not less than twelve pint bottles. by applying direct to the Clerk of the Court of Common Pleas and paying him” the sums named, which sum was i(160.00 per annum after May 3st, 3930. ³⁹⁴ On May 1st, 1913, a license was granted by the Clerk of tbe Court of Common Pleas, “to Frank Phillips, of 1805 E-Biddle St., Bottler of Fermented Liquors, to sell fermented liquors only and in quantities or packages not less than twelve pint bottles.” On May 1st, 1913, the traverser was, and had been for a long time before then, a bottler of soft drinks, such as sarsaparilla, soda, ginger ale, etc., with a bottling plant at 1805 E. Biddle Street, and prior to May 1st, 1913, he had bottled beer at that bottling plant but had not done so since then.

The beer sold by him as charged in the indictment was bottled at the bottling plant of the George-Gunther, Junior, Brewing Company in Highlandtown, Baltimore County. He had a contract with that company as follows: “Whereas, the George Gunther, Junior, Brewing Company, a body corporate of Baltimore County, has erected at its brewery a plant for the bottling of beer and fermented liquors for the use of licensed bottlers of fermented liquors. How this agreement witnesseth: That I, Frank Phillips, being a licensed bottler of Baltimore City, in consideration of the premises' and one dollars ($1.00), in hand paid, do hereby contract with the said George Gunther, Junior, Brewing Company of Baltimore County for the use of said bottling plant for the purpose of bottling beer and fermented liquor sold by me in Baltimore City. “It is further agreed, that I shall purchase the beer of the said brewing company, paying therefor five dollars and forty cents ($5.40) per barrel, from the vat, and shall further pay the said Brewing Company two and one-half cents (2%c.) per dozen bottles for the use of the said bottling plant in bottling said beer.” That contract was signed and sealed by Frank Phillips,, and beneath his signature was an endorsement of the acceptance of the contract by the company. The agreed statement shows that the traverser sold" seventy-two pints of fermented lager beer to one person, and twenty- ³⁹⁵ one