Molinari v. State

• Decision Date: 18 July 1922
• Docket Number: 32.
• Citation: 119 A. 291,141 Md. 565
• Parties: MOLINARI v. STATE.
• Court: Maryland Court of Appeals

119 A. 291

141 Md. 565

MOLINARI v. STATE.

No. 32.

Court of Appeals of Maryland

July 18, 1922

Appeal from Circuit Court, Allegany County.

Anthony Molinari was convicted of selling intoxicating liquors, and he appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, ADKINS, and OFFUTT, JJ.

Clarence Lippel and Arch A. Young, both of Cumberland (Carl G. Mullin of Cumberland, on the brief), for appellant.

Fuller Barnard, Jr., State's Atty., of Cumberland, and Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen on the brief), for the State.

ADKINS J.

Anthony Molinari, the appellant, was indicted on January 6, 1922, by the grand jury of Allegany county for selling on or about November 15, 1921-

"a certain quantity of intoxicating, spirituous, and fermented liquors to Harry Morris and to other persons to the jurors unknown, the said Anthony Molinari then and there not having a license, under the provisions of chapter 140 of the Acts of the General Assembly of Maryland, passed in the year 1894, and the amendments thereto, to sell intoxicating spirituous, and fermented liquors in Allegany county aforesaid; contrary to the form of the act of assembly in such case made and provided, and against the peace, government and dignity of the state."

A demurrer to the indictment was overruled, whereupon he filed special pleas, which aver, in substance-

That even if the defendant did make the sale of intoxicating liquors, as set forth in the indictment, such sale does not constitute an offense under any valid law of the state; that said sale was not made for medicinal or non-beverage purposes, but was made for the purpose of being drunk and consumed as a beverage; "that such sale is not a violation of the acts referred to, because said acts pertain to the license and unlawful sale of intoxicating liquors for beverage purposes," and such sale came "within the prohibition contained in said constitutional amendment (Eighteenth Amendment) and said act of Congress (the Volstead Act), and that both said constitutional amendment and said act of Congress constitute a repeal and abrogation or a suspension of the aforesaid laws of the state of Maryland, known as chapter 140 of the Acts of 1894 and all amendments thereto."

A demurrer to these pleas was sustained, whereupon traverser pleaded "not guilty," was tried by the court, and convicted. From which conviction this appeal was taken.

The provisions of the local law of Allegany county above referred to are in many respects like those of the law of Pennsylvania, known as the Brooks Law (Act May 13, 1887 [P. L. 108]), and the character and purposes of both are practically identical. Both are primarily regulatory laws; the revenue features being incidental. Both cover spirituous and fermented liquors, whether intoxicating or nonintoxicating.

It has been held recently by both the Supreme Court of Pennsylvania (in Vigliotti v. Commonwealth of Pennsylvania, 271 Pa. 10, 115 A. 20) and by the Supreme Court of the United States (April 10, 1922, affirming the Pennsylvania court, on appeal) 258 U.S. 403, 42 S.Ct. 330, 66 L.Ed. 686, that the Brooks Law was not abrogated by the Eighteenth Amendment and the Volstead Act (41 Stat. 305), and no distinction is made by either court between sales for beverage and sales for nonbeverage purposes. The Pennsylvania court said:

"The Brooks Law so survives as Pennsylvania's own police power method of officially listing and adequately controlling the customary sources of general supply and distribution to the people within her borders of those kinds of liquors among which intoxicating beverages are usually found, and she may thus assist in prohibiting their illegal use as such. Although, of course, not intended for that specific purpose, the statute is adapted to serve as an instrument with which to perform, at least in part, this state's right and obligation to enforce 'by appropriate legislation,' the Eighteenth Amendment."

And Justice Brandeis, in the United States Supreme Court's opinion, after quoting in part the above-quoted expression of the Pennsylvania court,...