State v. Clifton

• Decision Date: 25 January 1940
• Docket Number: 20.
• Citation: 10 A.2d 703,177 Md. 572
• Parties: STATE v. CLIFTON.
• Court: Maryland Court of Appeals

10 A.2d 703

177 Md. 572

STATE v. CLIFTON.

No. 20.

Court of Appeals of Maryland

January 25, 1940

Appeal from Circuit Court, Dorchester County; James M. Crockett and T. Sangston Insley, Judges.

Proceeding between the State of Maryland and Emerson Clifton, wherein Emerson Clifton was indicted on a charge of selling an alcoholic beverage without a license in violation of the State Alcoholic Beverages Act, Code Pub.Gen.Laws Supp.1935 art. 2B, § 2, and § 2, as added by Acts 1939, c. 775. From an order quashing the indictment, the State appeals.

Reversed and remanded.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C. Walsh, Atty Gen., and Calvin Harrington, Jr., State's Atty., of Cambridge, on the brief), for appellant.

James A. McAllister, of Cambridge (J. Gorman Hill, of Cambridge, on the brief), for appellee.

Argued before BOND, C.J., and OFFUTT, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

DELAPLAINE, Judge.

Emerson Clifton, the appellee, was indicted on April 25, 1939, and arrested on the charge of selling an alcoholic beverage in Dorchester County without a license in violation of the State Alcoholic Beverages Act. Acts of 1933, Extra Sess., ch. 2; Code Supp.1935, art. 2B, sec. 2.

The statute has been amended by an Act of the Legislature, which took effect on June 1. Acts of 1939, ch. 775. The act repealed art. 2B, sec. 2, and enacted another section in its place; but it did not change the penalty for violations thereof: a fine of not more than $1,000 or imprisonment for not more than two years, or both fine and imprisonment in the discretion of the Court.

On November 1 the appellee filed a motion to quash the indictment on the theory that the statute under which the indictment had been found was repealed. The Court granted the motion, and from the order quashing the indictment an appeal was taken by the State.

It is a general rule of the common law that after a statute creating a crime has been repealed no punishment can be imposed for any violation of it committed while it was in force. Keller v. State, 12 Md. 322, 71 Am.Dec. 596; Smith v. State, 45 Md. 49; State v Gambrill, 115 Md. 506, 81 A. 10. But it is also a fundamental principle that the law does not favor repeals by implication. No Court should ever adjudge that a repeal has occurred except when it is inevitable or the language of the act shows plainly that the Legislature intended it. Such a legislative intent is never presumed. If there is any question whether a repeal was intended, the statute is strictly construed. So, after the Legislature had passed an act prescribing for the first time in Maryland a statutory penalty for the common-law misdemeanor of keeping a disorderly house, this Court held that the intention of the Legislature was not to release from punishment those who had already been indicted, but to retain the common-law penalty in force for all cases which had arisen prior to the passage of the act, and to apply the statutory penalty to all cases which might arise subsequent to its passage. Beard v. State, 74 Md. 130, 21 A. 700.

By the Act of 1939, sec. 2 was in effect repealed and re-enacted with amendments. There is no indication in its language that the Legislature intended to abolish the crime of selling an alcoholic beverage without a license, and to establish an entirely different crime. Both the crime and the penalty for its commission remain unchanged. The appellee complained because Sec. 53D was added to the Alcoholic Beverages Act thereby conferring jurisdiction upon Justices of the Peace concurrent with the Circuit Courts to try cases of alleged violations of the statute; but this grant of concurrent jurisdiction, effective on June 1, did not have the effect of releasing any one indicted prior to June 1. It is well settled in this State that when a statute is repealed and re-enacted with amendments, and the amended statute contains substantially the same provisions as the original, the continuity of the original as to those provisions is not affected. Ireland v. Shipley, 165 Md. 90, 166 A. 593; Board of Dental Examiners v. Lazzell, 172 Md. 314, 191 A. 240.

But even if the penal section enacted in 1933 had been absolutely repealed by the Act of 1939, the State could nevertheless prosecute the present case through the operation of the general saving statutes which have been in force in Maryland since their enactment by the Legislature in 1912. One section, copied from the general saving clause enacted by Congress in 1871, 1 U.S.C.A. § 29, provides that the repeal of any statute shall not have the effect of releasing or extinguishing 'any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.' Acts of 1912, ch. 365; Code, art. 1, sec. 3. The other section provides for a saving of penalties, forfeitures and liabilities...