Ulman v. State

⁶⁴³ Adkins, J.. delivered the opinion of the court. The appellants were indicted in Baltimore City for selling intoxicating liquor without a license. They demurred to this indictment, and the demurrer was overruled, whereupon they filed two special pleas, in which, respectively, they admit that on May 8th, 1920, they sold fifty pints of whisky to Lipman Kiewe, and fifty pints to Jacob Lsgum “for non-beverage purposes, to wit, for medicinal purposes”; that at the time of the said sale they were duly permitted and authorized by permit, issued by John F. Kramer, United States Commissioner of Prohibition, under the National Prohibition Act and Regulations issued thereunder, to sell intoxicating liquors for other than beverage purposes to others holding permits, which confer authority to purchase and use intoxicating liquors for non-beverage purposes; that the said lipman Kiewe and Jacob Legum then and there held said permits; that the said defendants acted under such permits, issued as aforesaid to them, and all provisions of the National Prohibition Act and Regulations issued thereunder were then and there strictly observed. To each of which pleas the State demurred, and the demurrers were sustained.

This appeal is from the rulings of the trial Court on the respective demurrers. It is unneeessay to set out the counts in the indictment, as the demurrer to the indictment is based, not on the form of the indictment, but on the general proposition that there1 is not now, and was not at the time of the alleged offenses, any enforceable law in Maryland prohibiting the sale of intoxicating liquor in Baltimore City without a state license. The contention of appellants is, not that the liquor laws applicable to Baltimore City were not valid at the time of their passage, or that they have been repealed either expressly or by implication by any later statute of this State; but that they have been abrogated or nullified by the Eighteenth Amendment to the Constitution of the United States and the Act of Congress known as the Volstead Act. If this is so, ⁶⁴⁴ it must- be because the statute in question is repugnant in all its parts to the said amendment and act of Congress, or at least to such an extent that, when the repugnant provisions are eliminated, tbe remaining parts of tbe act do not carry out any of the purposes for which the law was enacted.

It certainly cannot be because of any exclusive jurisdiction assumed by the Federal Government under the Amendment, for the Amendment expressly provides for concurrent action. For the purpose of this case it is not necessary to decide whether the prohibition feature of the Marylaud license law would how be enforceable if the Eighteenth Amendment had prohibited the sale of intoxicating liquor for every purpose. In passing, however, it is to be noted that it has been held in at least four states that a later local option law prohibiting the sale of intoxicating liquor in one of the counties of a state does not prevent prosecution for violation 'of an earlier law prohibiting sale without license. Com. v. Barbour, 121 Ky. 463 ; State v. Smiley, 101 N. C. 709 ; Webster v. Com., 89 Va. 154 ; State v. Swanson, 85 Minn. 112 .

See also 23 Cyc. p. 120. We have here to deal with the Federal Constitution and an Act of Congress which permit the sale of intoxicating 'liquors for non-beverage purposes, and a state law which prohibits the sale of such liquors without a license for my purpose. Certainly there is no conflict so far as the state law applies to sales for non-beverage purposes. Because it permitted the license of sales for beverage purposes also, when such sales were not prohibited by the Féderal Constitution, and because such licenses can no longer be issued, it does not follow that the whole law has been abrogated.

On the contrary, it is,not unreasonable to suppose the Legislature would have enacted laws regulating the liquor business and providing for a revenue from such sales as would have been permissible if the Eighteenth Ainendment had then been in force. One of the ways of