Lochnar v. State

• Citation: 111 Md. 660,76 A. 586
• Parties: LOCHNAR v. STATE.
• Decision Date: 12 January 1910
• Court: Court of Appeals of Maryland

76 A. 586

111 Md. 660

LOCHNAR

v. STATE.

Court of Appeals of Maryland.

Jan. 12, 1910.

Appeal from Circuit Court, Baltimore.

County.

George Lochnar was convicted of illegally selling intoxicating liquors, and appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and THOMAS, JJ.

David Ash, for appellant.

Walter D. Eiseman and Isaac Lobe Straus, Atty. Gen., for the State.

BURKE, J. The Act of 1908, c. 179, of the Public Local Laws for Baltimore County, provides that, after its passage, no person shall sell, offer for sale, or keep for sale in Baltimore county any intoxicating liquor of any kind without having obtained a license therefor as provided in the act. It is also provided by chapter 174 of the Acts of 1908 relating to Baltimore county that no license shall be issued for the sale of spirituous or fermented liquors or lager beer within the town of Sparrows Point, or at any place In Baltimore county within three miles distance from the schoolhouse in Sparrows Point. The Act of 1908, c. 179, contains careful and well-considered restrictions concerning the sale of liquors in Baltimore county. It is a police regulation, and its object is to conserve the public morals and public order by forbidding the unregulated and indiscriminate sale of spirituous and fermented liquors in that county. The public welfare demanded proper legislation upon the subject, and the Legislature was acting within its well-recognized powers in passing the acts mentioned. It was said in Tregeser v. Gray, 73 Md. 250, 20 Atl. 905, 9 L. R. A. 780, 25 Am. St. Rep. 587, that: "Their power over the whole subject under the Constitution of this state cannot at this day be questioned. They may prohibit the sale of spirituous liquor entirely if they see fit to do so, or they may restrict it in any manner which their discretion may dictate. No one can claim as a right the power to sell; either at any time, or at any place, or in any quantity. If he is allowed to sell under any circumstances, it is simply by the free permission of the Legislature, and on such terms as it sees fit to impose."

George Lochnar, the appellant on this record, was indicted in the circuit court for Baltimore county for selling liquor without a license. The indictment contained two counts. The first count charged him with selling beer to Eliza Smith at Baltimore county on the 11th day of March, 1909, without first having taken out a license therefor as provided by law; and the second count charged that, at the same time and place he sold whisky without a license to Eliza Smith. He pleaded non cul and a special plea in which he alleged that he is a servant and employe of one William Schuette, a holder of a retail liquor license issued by the clerk of the court of common pleas of Baltimore City to sell liquors by retail; that the license was in force on the date charged in the indictment; that on the 5th day of March, 1909, Eliza Smith ordered of the traverser one-half dozen bottles of beer to be delivered to the said Eliza Smith on the 11th day of March, 1909, the date mentioned in the indictment; that the said order was received by William Schuette, the licensee and employer of the traverser, at his place of business, designated in his license in Baltimore City, and was accepted by the said Schuette, at his place of business; that the order, to wit, one-half dozen bottles of beer, was segregated and separated from the stock of the said Schuette, the licensee, from his regular place of business In Baltimore City as designated in his license, as ordered by the said Eliza Smith; and that the beer was delivered to her at Sparrows Point, Baltimore county, by the traverser from the stock in trade of the said licensee, William Schuette, in Baltimore City, as designated in the license. The state demurred to this plea, and the court sustained the demurrer. The case was tried by a jury upon the issue joined upon the plea of not guilty, and the traverser was convicted and sentenced to pay a fine of $300 and costs. From this judgment he has appealed.

Assuming that the sale was made in Baltimore county as charged, it is no defense that the appellant was a servant or employe of William Schuette, who was a licensed retail liquor dealer in Baltimore City. It is not necessary that the traverser should have been the owner of the beer in order to constitute the offense of selling it without a license. "If a person not owning it has the authority to sell it, in other words, if he acts as clerk or servant to the owner, the fact does not excuse him; but he is equally guilty as though he proceeded on his own motion and for his own profit, because no man can authorize another to violate the law." Bishop's Statutory Crimes (Ed. 1873) § 1024; 23 Cyc 206; Black on Intoxicating Liquors, § 372.

Upon the facts stated in the plea, we hold that the sale of the beer was made in Baltimore county in violation of the statutes. Those facts show that Eliza Smith on the 11th day of March, 1909, ordered from the traverser, as the servant or agent of a retail dealer in Baltimore City, one-half dozen bottles of beer; that the order was received and accepted by his employer at his place of business in Baltimore City; and that the beer ordered was segregated and separated from the stock of his employer, and delivered by his servant, the appellant, to Eliza Smith at Sparrows Point in Baltimore county. It would open wide the door to the unrestricted and indiscriminate distribution of spirituous and fermented liquors in Baltimore county to hold that such facts constitute no offense. It would frustrate the very object the Legislature had in view, and would in a very large measure withdraw this traffic from the regulation and control of the local authorities. We think it is a palpable attempt to evade the liquor laws of the county. If such a scheme can be worked with immunity from punishment by a liquor dealer in Baltimore City, the same thing can be done by a liquor dealer in Baltimore county in the city where the license...