PATTISON
J.
The
Conococheague Club of Washington County was indicted in the
circuit court for Washington county for violation of Acts
1908, c. 380. The indictment contains two counts. In the
first the defendant, being at the time a licensee to sell
spirituous and fermented liquors under article 56 of the Code
of Public General Laws of the state of Maryland, as therein
alleged, is charged with unlawfully selling whisky without
first having obtained a license therefor, as provided by the
act above mentioned. The second count is like the first
except that the defendant is charged with the sale of lager
beer.
To the
first count of the indictment the defendant pleaded
"The said the Conococheague Club of Washington County is
a corporation formed under the general incorporation laws of
the state of Maryland. That its charter was granted to it on
the 2d day of November, A. D. 1895. That the said corporation
so formed is an association for the maintenance of an
association or club for social purposes and for the promotion
of the interests of literature, science, and art, and to have
a clubhouse to be used for the objects above mentioned. That
the term of existence of said corporation is limited to 40
years, and that the said corporation is formed upon the
articles, conditions, and provisions herein expressed and
subject in all particulars to the limitations relating to
corporations which are contained in the General Laws of the
state. That the said charter further provides 'that the
present members of the said Conococheague Club, and such as
may hereafter become members of the same by virtue of the
constitution and by-laws thereof, adopted or hereafter
adopted, shall compose said corporation, and exercise the
functions and franchises thereof.' That the said
corporation has no capital stock. That the corporation is
managed by a president, vice president, secretary, and
treasurer and twelve governors elected by the members, all of
whom constitute the board of management of said club, and
that new members of said club are elected by the board of
governors after such new members have been proposed by one
member of the club, seconded by another, and after their
names have been posted in the clubhouse for at least 10 days.
That the said corporation has adopted a constitution, and
passed certain by-laws for its better government and
regulation. That the said corporation is the owner of its
clubhouse on West Washington street in Hagerstown, Md., and
near the center of the city, a valuable piece of real estate
which it has since its corporation used and occupied as its
home, and for purposes for which it was incorporated. That
the said corporation transacts no business of any kind
whatever for the purpose of making any profit directly or
indirectly for itself or for its members, and that its only
income is the money derived from entrance fees, annual dues,
money paid for members for such meals, refreshments, and
liquors as they may get and consume at the clubhouse, and
money paid by members of the club for the use and occupation
by them of sleeping rooms in said clubhouse, and money
derived from such additional assessments, fines, and
penalties as may be from time to time imposed upon the
members under its rules and by-laws. That the money received
from these various sources is expended in paying the current
expense of the corporation, taxes on its clubhouse, and
keeping the same in proper repair, procuring food,
refreshments, and liquors to take place of that consumed and
used by the members, in paying the subscriptions for the
magazines, periodicals, and newspapers kept in the clubhouse
for the use of its members, and in paying the interest on the
indebtedness of the said corporation. That the said meals,
liquors, and refreshments used and consumed by the said
corporation and its members at its clubhouse are bought by
the corporation, kept in the clubhouse under the charge of
its steward, who is an employé of the corporation. That the
members of the club can procure from the corporation through
its said steward such meals, liquors, refreshments, and the
use of such sleeping rooms as they may desire by calling for
them and paying the price fixed by the regulations of the
corporation, and that the price so paid as fixed is fixed and
paid, not for the purpose of making any profit either
directly or indirectly, but merely for the purpose of
covering the outlay thereof by the corporation and the
expenses attendant upon and the keeping and serving thereof
at the said clubhouse and with the funds received from other
sources of the maintaining of said clubhouse, and that the
funds derived from such furnishing of spirituous and
fermented liquors to members as aforesaid is insufficient to
pay the cost and service thereof, and that, to meet the
excess of such costs, funds from other sources must be used.
That no persons, other than the members of the said club, are
given access to said clubhouse. That no persons other than
the members of said club can procure said meals,
refreshments, liquors, and rooms from the said corporation.
That the said corporation previous to this indictment took
out the oyster house license provided for in section 102 of
article 56 of the Code of 1904, which was in force at the
time of said indictment. That at the time and place stated in
the said indictment the said Joseph C. Byron was a member of
the said Conococheague Club, and as such procured a drink of
whisky from the steward, drank it then and there, and paid
the price therefor fixed by the corporation."
To the
second count the defendant pleaded a like plea, the only
difference being that in the second plea the admission is
that the member procured beer from the defendant, as charged
in that count.
To
these pleas the state demurred. The demurrer was sustained,
and a judgment thereon entered for the state, and the
defendant was sentenced to pay a fine of $100 and costs.
The
statute, for the violation of which the defendant is
indicted, provides that: "It shall not be lawful for any
person or persons to sell spirituous, fermented or
intoxicating liquors in Washington county, state of
Maryland," until he shall have complied with the
conditions and requirements contained therein, and shall have
obtained a license therefor from the clerk of the circuit
court for Washington county. The cost of such license,
"if the proposed place of sale is located in Hagerstown
or within one and one-half miles of the corporate limits
thereof," being "the sum of five hundred dollars in
addition to the sum required by law to sell such liquors
under the provisions of article 56 of the Code of Public
General Laws of the state of Maryland." Section 325e of
the above-mentioned act, near the end thereof, provides that:
"It is the intention of this act that licensees to sell
spirituous and fermented liquors under article 56 of the Code
of Public General Laws of the state of Maryland *** shall in
all respects be subject to the conditions, provisions and
penalties of this act." Section 102 of article 56 of the
Code of Public General Laws of the state of Maryland (Acts
1890, c. 282, § 89a), thus referred to, provides: "It
shall not be lawful for any club or for any corporation
heretofore formed or hereafter to be formed under the General
Laws of this state or under any special law, to give, barter
or sell spirituous or fermented liquors or lager beer to any
member of said club or corporation, or to any other person,
without having first taken out an oyster house license
therefor." The oyster house license referred to in the
section last above mentioned is provided for by sections 90
and 91 of article 56, which are as follows:
"Sec.
90. If any person shall purpose to open, set up or keep an
oyster house, cook shop, victualling house or lager beer
saloon, or any place other than an ordinary, at or in which
spirituous or fermented liquors or lager beer may be sold
or bartered in less quantities than a pint, at any one
time, he shall apply to the clerk of the circuit court for
the county in which he may reside.
"Sec.
91. Upon such application the said applicant shall pay to
the clerk of the circuit court of the county where he
resides *** the sum of fifty dollars for each and every
such license."
It is
contended by the defendant that by the facts pleaded it is
not required by Acts 1908, c. 380, under which it is
indicted, to obtain the license therein mentioned in order to
enable it to legally dispose of to its members spirituous or
fermented liquors in the manner mentioned in the plea, for
the reason that such a disposition of it is not a sale within
the meaning of the statute, and it is not a license within
the meaning of section 325e, c. 380, Acts 1908. While, on the
other hand, it is contended by the state that a disposition
of it in the manner stated in the plea is a sale of the same
within the meaning of the act, and that the defendant comes
within the meaning of the statute and is required to take out
the license...
