Benesch v. State

• Decision Date: 13 December 1916
• Docket Number: 53,54.
• Parties: BENESCH v. STATE. VANURA et al. v. SAME.
• Court: Maryland Court of Appeals

99 A. 702

129 Md. 505

BENESCH v. STATE.

VANURA et al. v. SAME.

Nos. 53, 54.

Court of Appeals of Maryland

December 13, 1916

Appeals from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Anton Vanura and Lizzie Vanura were convicted of violation of the liquor law, and Moritz Benesch was convicted of violation of the liquor law. In both cases defendants appeal. Judgment in the case of Anton Vanura and Lizzie Vanura reversed. Judgment in case of Moritz Benesch affirmed.

Argued before BOYD, C.J., and BRISCOE, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.

William P. Cole, Jr., of Towson, for appellants.

Isaac Lobe Straus, of Baltimore (Albert C. Ritchie, Atty. Gen George Hartman, State's Atty. of Baltimore County, of Towson, and W. Clinton McSherry, of Frederick, on the brief) for appellee.

BOYD C.J.

The appeals of Anton Vanura and Lizzie Vanura v. State and Moritz Benesch v. State were heard together. In each case a demurrer to the indictment was overruled, a plea of not guilty was entered and a verdict of guilty was found by the court, by whom the traversers elected to be tried. The only questions before us are presented by the demurrers to the indictments and as the parties were indicted under the same section of the statute (section 9F of chapter 31 of the Acts of 1916), the two cases will be disposed of by one opinion.

Those made liable to prosecution and punishment by section 9F can properly be divided into three classes, and for convenience we will insert the letters (a) and (b) before the two clauses involved in these appeals, although they are not in the statute. They are as follows:

"9F. (a) Any person, or any officer or member of any corporation, association or club owning, leasing, renting or occupying any park, ground or shore in Baltimore county who shall lease, rent or hire out the same for a picnic, crab feast, shad bake, barbecue, oyster roast or feast, or other entertainment or assemblage to be held on the Sabbath or Lord's Day, commonly called Sunday, and at which any spirituous, fermented or intoxicating liquor of any kind, or lager beer or near beer, are drunk or are to be drunk on said Sabbath day;

"(b) Or any person, or any officer or member of any corporation, association or club, who shall give, hold, conduct or take part in any picnic, crab feast, shad bake, barbecue, oyster roast or feast or other entertainment or assemblage on the Lord's Day, commonly called Sunday, at which spirituous, fermented or intoxicating liquor of any kind or lager beer or near beer are drunk or to be drunk on the Lord's Day, commonly called Sunday, *** shall be guilty of a misdemeanor and upon conviction thereof shall pay a fine of not less than $200.00 nor more than $1,000.00 or be imprisoned in jail or in the House of Correction of Maryland for not less than 30 days, or suffer both fine and imprisonment, as aforesaid, in the discretion of the court."

The grounds for the demurrer relied on are stated in the briefs for the appellants to be: (1) That section 9F is unconstitutional and void in that the title of the act is defective, section 9F not being germane thereto; (2) that the section is unconstitutional and void because it has no real or substantial relation to the police power of the state, being a plain invasion of rights secured by the fundamental law, and being oppressive and discriminating and obnoxious to the Fourteenth Amendment of the federal Constitution; and (3) that the indictment does not properly embrace the language of the statute, in that it is not specific and does not apprise the traversers properly of the crime with which they are sought to be charged.

We will consider them in that order.

First. The title to the act is as follows:

"An act to repeal and re-enact, with amendments, sections 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 21 and 26 of chapter 179 of the Acts of the General Assembly of Maryland of 1908, entitled, 'An act to regulate the sale and the granting of licenses for the sale of spirituous and fermented liquors in Baltimore county' and to add eight new and additional sections to said chapter 179," etc.

-section 9F being one of the eight added.

The act of 1908 referred to in the above title contained 29 sections. The title to that act is correctly quoted in that of the act of 1916, and it is contended that the latter is not a sufficient compliance with the requirement of section 29 of article 3 of the Constitution, in so far as section 9F is concerned. It could not be successfully contended, in view of the decisions of this court, that such a title as that of the act of 1908 would not be sufficient to sustain a prohibition against selling or giving away liquor on Sunday and to provide penalties for its violation. It would clearly be a compliance with the Constitution, as construed in former cases of this court, when it purports "to regulate the sale and the granting of licenses for the sale of spirituous and fermented liquors." The experience of those connected with the administration of the law, as well as the many decisions of this and other courts, has taught them that there are many attempts to evade the laws regulating the sale of liquors. If, then, it be found that the ordinary prohibition against selling or giving away liquor on Sunday is not sufficient to correct the evil sought to be corrected, and that other provisions are necessary in order to accomplish the object of such laws, it cannot properly be said that such provisions are not germane. No one would now question the validity of a statute having a title such as that of the act of 1908, because in the body of the act screens, curtains, and other obstructions were required to be removed on Sundays and other days on which sales are prohibited, and it was provided that sales at times which are permitted can only be made in some room fronting on a street or public highway. The object of such provisions is to aid in the enforcement of the laws prohibiting sales and the disposition of liquor on Sundays and at other prohibited times.

It is common knowledge that the excessive use of intoxicating liquors, especially where many persons are gathered together, is liable to produce disorder, rioting, and disturbance of the public peace. Under such conditions the place is likely to become a public nuisance. If it had been found that in Baltimore county, which adjoins a large city, the provisions of the local liquor laws were inadequate to prevent disorder, and insure the enforcement of the law, and that such provisions as those in section 9F were necessary for that purpose, then they are germane to the subject of the act.

It will be well to recall some of our decisions, which illustrate the construction of this constitutional provision by us and our predecessors when statutes concerning the sale, etc., of liquor were involved. In the familiar case of Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522, chapter 55 of the Acts of 1858 was under consideration. The title was, "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," and by the first section of the act it was provided that "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 prescribed limits any spirituous or fermented liquors, to a minor, without the written order of his parents or guardian. Parkinson was indicted for giving liquor to a minor. In discussing the constitutional provision then in force that "every law enacted by the Legislature shall embrace but one subject, and that shall be described in the title," being the same as section 29 of article 3 of the present Constitution, the court said:

"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 is 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. It it were so, no law providing several modes for effecting its main purpose would be valid in all its provisions."

Again it is there said:

"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."

In Baltimore City v. Flack, 104 Md. 107, 64 A. 702, Chief Judge McSherry considered this constitutional provision at length, and at 104 Md. on page 116, 64 A. on page 405, in speaking of Parkinson v. State, supra, said:

"Wherein the distinction was pointed out between subject of a penal enactment, which must be stated in the title, and the means by which the legislative intention was to be accomplished, which need not be described in the title."

And again:

"The contention was that as the title was restricted to the sale of liquors the provision in the body of the statute prohibiting

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