Beall v. State
| Decision Date | 22 December 1917 |
| Docket Number | 113. |
| Citation | 103 A. 99,131 Md. 669 |
| Parties | BEALL, Sheriff v. STATE ex rel. JENKINS. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Prince George's County; B. Harris Camalier, Judge.
Proceeding in habeas corpus by the State, on the relation of Lewis C Jenkins, against W. Wesley Beall, sheriff. The district court made an order discharging relator, which decision was brought to the Court of Appeals for review, pursuant to Code Pub Civ. Laws, art. 42, § 17. Order reversed.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER, and STOCKBRIDGE, JJ.
S Marvin Peach, State's Atty., of Upper Marlboro, and Ogle Marbury, Asst. Atty. Gen. (Albert C. Ritchie, Atty. Gen., on the brief), for appellant.
George Weems Williams, of Baltimore, and L. Allison Wilmer, of Leonardtown (Robert W. Wells, of Washington, D. C., on the brief), for appellee.
Lewis C. Jenkins was brought before a justice of the peace for Prince George's county on or about the 29th day of November, 1917, charged on the oath of R. Fulton Gates with keeping and selling and having in his possession, in his place of business located in Prince George's county, intoxicating liquors, contrary to and in violation of the provisions of chapter 13 of the Acts of the Extraordinary Session of the General Assembly of Maryland, which convened at the city of Annapolis on the 12th day of June, 1917. He declined to give bail, and was committed by said justice to the sheriff of Prince George's county for the action of the circuit court for that county at its next ensuing term. An application for a writ of habeas corpus was made to Hon. B. Harris Camalier, an associate judge of the Seventh judicial circuit, and the writ was issued. In obedience to the mandate of the writ the sheriff of Prince George's county produced the body of Lewis C. Jenkins before Judge Camalier at the courthouse in Leonardtown, Md., on December 3, 1917, at 3 o'clock p. m. together with the commitment under which he was detained. The matter of the application was then heard, and, after full argument by counsel representing the state and the said Jenkins, the judge announced that he would hold the matter under consideration until December 6, 1917, and directed the sheriff to produce the relator at the courthouse in Leonardtown on that day. Briefs of counsel were filed with the judge under leave granted. The sheriff produced the relator at the time and place directed, and the judge then and there, after filing a careful and well-considered opinion, held that the said Lewis C. Jenkins was unlawfully detained in the custody of the sheriff, and ordered that he be forthwith discharged. It is disclosed by the opinion filed that Judge Camalier held that section 19 of the act, which provided that it should go into effect from the date of its passage, was unconstitutional and void, and that the act could not in any event take effect until June 1, 1918, and that, since Jenkins was held under a commitment charging him with a violation of the provisions of an act which was not then in force, he was detained without warrant of law and should be discharged. It is provided by section 17, art. 42, of the Code:
"Whenever any court in this state having jurisdiction in the premises, other than the Court of Appeals, or when any judge of any court in this state having jurisdiction in the premises shall release or discharge any person brought before such court or judge, under the writ of habeas corpus, charged with the violation of the provisions of any act of assembly of this state, or section thereof, or of any article or section of the Code of Public General Laws or Public Local Laws of this state, upon the ground, or for the reason, that such act of assembly, or section thereof, or such article or section of the Code of Public General Laws or Public Local Laws is unconstitutional and void, in whole or in part, because contrary to the Constitution or Bill of Rights of this state, or because contrary to the Constitution of the United States, it shall be the duty of the said court or judge ordering such release or discharge for said cause to reduce his opinion to writing within five days after ordering said release or discharge, and to transmit the original papers in said case, together with a copy of its or his order of release or discharge, and of his said opinion, under his hand and seal, to the clerk of the Court of Appeals; and it shall be the duty of said court to consider the papers so transmitted to its said clerk, including said order of release or discharge, and said opinion, at the earliest practicable period, after the receipt thereof by its said clerk, and to give its opinion in writing upon the case so presented; and the said opinion so given shall have and possess the same authority as if the same was filed in a case formally heard and determined in said court on appeal."
The question of the constitutionality vel non of the section of the act mentioned is properly before us. State v. Glenn, 54 Md. 572.
The act is entitled "An act to prohibit the manufacture, sale, giving away or otherwise disposing of, transportation, solicitation of orders for intoxicating liquors for beverage purposes within the limits of Prince George's county; for the enforcement of such prohibition; and repealing all laws inconsistent herewith," and it contains the following recital:
"Whereas, experience has shown that prohibition is the best policy for the territory in and around forts, arsenals, navy yards, munition plants and seat of national government during war, and, owing to the close proximity of the District of Columbia, the seat of our national government, as well as the location of many forts which will be greatly injured by the continued sale of liquor in Prince George's county when all other territory adjacent and contiguous to the District of Columbia and close to forts and training camps will be under prohibition on and after November 1, 1917, therefore, this bill is introduced and passed as an emergency war measure."
The act was approved June 28, 1917.
It is unnecessary to the consideration of the questions before us to examine the several sections of the act, which is a stringent one, and contains provisions and means well adapted to accomplish the object declared in its title. Section 17 declares:
"That this entire act shall be deemed an exercise of the police powers of the state for the protection of public health, peace, morals and safety, and all its provisions shall be liberally construed for the attainment of that purpose."
The reasons which led the learned judge to hold the section of the act mentioned unconstitutional were: First, that the act was passed under the provisions of article 16 of the Constitution, and since it did not "contain a section declaring such law an emergency law and necessary for the immediate preservation of the public health and safety, and passed upon a yea and nay vote supported by three-fifths of all the members elected to each of the two houses of the General Assembly," section 19, which declared that the law should go into effect from the date of its passage, was a plain violation of that provision of the Constitution, and was therefore void; and, secondly, that the effect of the law was to abolish the board of liquor license commissioners for Prince George's county, or to change the duties of said officers, and therefore the attempt to make the act go into effect from the date of its passage was nugatory and void, because that was forbidden by that provision of article 16 of the Constitution, which provides that:
"No measure creating or abolishing any office, or changing the salary, term or duty of any officer, or granting any franchise or special privilege, or creating any vested right, or interest, shall be enacted as an emergency law."
It is provided by section 31, art. 3, of the Constitution that:
"No law passed by the General Assembly shall take effect, until the first day of June, next after the session, at which it may be passed, unless it be otherwise expressly declared therein."
Judge Camalier held that section 31, art. 3, was superseded by article 16 of the Constitution, and therefore "this class of legislation could not be supported" by the above quoted section. It may well be admitted that section 31, art. 3, of the Constitution has been modified in important particulars, but we cannot agree to the proposition that it has been repealed or wholly suspended by article 16. It was not expressly repealed by that article, and it is not declared therein that it was the purpose of the Legislature that the new article be substituted for and in lieu of it. It is not mentioned or referred to in article 16, and it would be reasonable to suppose that if the General Assembly had intended to abrogate or wholly suspend it some mention would have been made of that fact. But the act (chapter 673 of the Acts of 1914) which submitted the proposed article to the vote of the legal and qualified voters of the state does not profess to abrogate or repeal any provision of the Constitution. It was declared to be "an Act to amend the Constitution *** by adding thereto a new article to be entitled 'Article XVI,' providing for 'The Referendum'," and the first section of the act provides for the submission to the voters of "the following new and additional article to be known as 'Article XVI,' title, 'The Referendum'."
We are not called upon to point out the particular classes of laws which are still subject to the provisions of section 31 of article 3. We confine ourselves to the question, which, as we conceive it, lies at the basis of the whole controversy in this case. That question...
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