Thomas v. State

• Decision Date: 09 February 1938
• Docket Number: 17.
• Citation: 197 A. 296,173 Md. 676
• Parties: THOMAS v. STATE.
• Court: Maryland Court of Appeals

197 A. 296

173 Md. 676

THOMAS v. STATE.

No. 17.

Court of Appeals of Maryland

February 9, 1938

Appeal from Circuit Court, Caroline County; J. Owen Knotts, Judge.

Clifton Thomas was convicted of selling one pint of intoxicating liquor in Caroline County, and he appeals.

Reversed.

BOND C.J., dissenting.

Wesley E. Thawley, of Denton, for appellant.

Hilary W. Gans, Deputy Atty. Gen., (Herbert R. O'Conor, Atty Gen., and Layman J. Redden, State's Atty., of Denton, on the brief), for the State.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, SHEHAN and JOHNSON, JJ.

OFFUTT Judge.

The appellant in this case was indicted by the grand jury of Caroline county for the sale of one pint of 'intoxicating liquors' at that county. His demurrer to the indictment was overruled, he pleaded not guilty, he was tried and convicted by a jury, and was sentenced to the Maryland House of Correction for a term of six months. This appeal is from that judgment.

The single question submitted is whether the indictment is good. It is attacked on two grounds; one, that it is based on a local statute which was repealed by a general statute, and, two, that it is duplicitous.

The objection that the local statute on which the indictment rests was repealed by a general statute will be considered first:

Code P.L.L. art. 6, § 369, is a codification of a part of the Acts of 1910, c. 34 (p. 679). Code Pub.Gen.Laws Supp.1935, art. 2B, is a codification of chapter 2, Acts of 1933, Ex.Sess. The one is a local law designed to prohibit the sale of intoxicating liquors for beverage purposes, under any circumstances, in Caroline County. The other is a regulatory law the purpose of which is to permit, but to regulate, the sale of or traffic in such liquors in those parts of the state to which its provisions apply.

Code Supp.1935, art. 2B, is a public general law, but it provides no general system of regulating the liquor traffic uniform throughout the state. On the contrary, its manifest and controlling purpose and intent is, in accordance with the long-established policy of the state, to secure to each of its political subdivisions the option of deciding whether it will permit and regulate or prohibit traffic in liquor therein. Accordingly while some of its provisions apply to all such subdivisions they are consistent with either prohibition or with regulation. Others apply to some subdivisions but have no application to others.

It provides for five different kinds or genera of licenses and eighteen subclassifications, section 3. Of those classifications, either by reason of express exemption, or because of the nature of the license only one, a wholesaler's license may be issued for the sale of intoxicating liquor in Caroline county, except on railroads, trains, or steamboats, and, by the express terms of the statute, the holder of such a license is prohibited from selling such liquors to any person in Caroline county other than another license holder. Id. § 3, subsec. 2.

Chapter 2, Acts 1933, Ex.Sess., expressly repeals certain public general laws, naming them, and certain public local laws, naming them, but does not repeal any public local law of Caroline county, except in so far as that result may be accomplished by the following omnibus clause: 'and all other laws or parts of laws, whether general or local, inconsistent with the provisions of this Act, be, and the same are hereby repealed.' Section 2. That act was approved and became effective on December 5, 1933.

By chapter 523, Acts of 1933, which became a law on April 5, 1933, twelve new sections were added to the public local laws of Caroline county, Pub.Loc.Laws 1930, art. 6, § 375 et seq., the effect of which was to authorize the issuance of licenses for the sale in that county of lager beer, ale, and porter containing not more than 3.2 per cent. of alcohol by weight, if, but only if, a majority of the votes cast at the 'next special or general election' held in Caroline county were in favor of the law. That act was approved at an election held on September 12, 1933. Certain provisions of that act were amended by chapter 68 of the extraordinary session of the Legislature of 1933 which was approved on December 15, 1933.

The contention of the appellant is that chapter 2, Acts 1933, Ex.Sess., is wholly inconsistent with the provisions of Code P.L.L. art. 6, § 369, and effected a complete repeal of that statute. The contention of the State, on the other hand, is that it had no such effect.

In support of his contention the appellant relies mainly on the decision in Green v. State, 170 Md. 134, 183 A. 526, 529. But that case is not controlling, because the issue there and the issue here are essentially different. In that case Green had been indicted for the sale of an alcoholic beverage in violation of the provisions of Code P.L.L. art. 10 § 367, which were in substance the same as those of Code P.L.L. art. 6, § 369. The defense there, as here, was that the statute had been repealed by chapter 2, Ex.Sess., 1933. But there is this difference between the two cases, in this case chapter 2, Ex.Sess. 1933, does not permit the sale of any intoxicating beverage in Caroline county for consumption in Caroline county, but it does permit the sale of such beverages in Dorchester county for consumption in that county. That is to say, the only license which may be issued under chapter 2, Acts 1933, Ex.Sess., for the sale of such beverages in Caroline county, is a wholesaler's license, under which the licensee may sell only to another license holder, but under chapter 2, Acts 1933 Ex.Sess., manufacturer's licenses, licenses for the sale of beer, Class A, Class B, and Class C, and wholesaler's licenses may be issued in Dorchester county for the manufacture or sale of such beverages there. The manifest intent and purpose of section 367 of the Local Law of Dorchester county was to prevent local traffic in any and every kind of intoxicating liquor in that county for beverage purposes. Other sections of such laws, however, permitted the purchase for delivery in the county of such liquors for medicinal and sacramental purposes, Code P.L.L. art. 10, § 373, and it permitted under certain conditions the importation into the county of such beverages in limited quantities for the personal use of the importer, Id. § 370, and in those respects the local laws of Caroline county were the same as those of Dorchester county, Code P.L.L. art 6, §§ 370, 373. The supposed evil at which they were aimed was the local distribution of intoxicating liquors, not the complete prevention of their use for medicinal, sacramental, or even beverage purposes. Now as pointed out in Green v. State, supra, chapter 2 of the Acts of 1933 Ex.Sess., was in irreconcilable conflict with that purpose, for it permitted the very thing which the local law was intended to prevent, local traffic in intoxicating liquor, not in any kind of intoxicating liquor but only in certain kinds, but nevertheless in intoxicating liquor. It necessarily, therefore, repealed the local law which prohibited such traffic in any kind of intoxicating liquor.

But the same thing is not true of the effect of chapter 2 of the extraordinary session of the Legislature of 1933 on traffic in intoxicating liquor in Caroline county, for under its terms no license can be issued for the local distribution of intoxicating liquors of any kind in that county. So that the question comes finally to this, Is the fact that under the General Law a license may issue authorizing the licensee to deliver such liquors only to another license holder, and which fails to provide for the issuance of any other kind of license for the sale of such liquor in that county, so inconsistent with the provisions of the local liquor law of Caroline county that they cannot both stand?

As Judge Sloan said for this court in Green v. State supra: 'It has been frequently said in this court and elsewhere that repeals by implication are not favored and will not be so held unless there is some express reference to the previous statute, or unless there is a manifest inconsistency in the two, or their provisions are so repugnant that they cannot stand together. Mayor, etc., of Cumberland v. Magruder, 34 Md. 381, 389; Garitee v. Baltimore, 53 Md. 422, 435; Smith v. County School Com'rs of Dorchester County, 81 Md. 513, 32 A. 193; Frostburg Mining Co. v. C. & P. R. Co., 81 Md. 28, 29, 31 A. 698; State v. Yewell, 63 Md. 120; State v. Northern Cent. Ry. Co., 90 Md. 447, 45 A. 465; Baltimore City v. Davis, 120 Md. 403, 87 A. 690; Redmond v. State, 155 Md. 13, 141 A. 383; 59 C.J. 910, §§ 514, 519.' And as said in that case too, while chapter 2 of the Acts of 1933, Ex.Sess., is a public general law, its operation is not uniform throughout the State, a fact which is apparent from its text. It is not therefore a law which provides as a substitute for a number of statutes relating to one general subject but varying in treatment of it, a single uniform plan or scheme of treatment operating uniformly everywhere within the territory to which it applies, such as Code, art. 33A, construed in Koehler v. State Roads Comm., 125 Md. 444, 94 A. 16; Ridgely v. Baltimore City, 119 Md. 567, 87 A. 909; Pitznogle v. Md. R'y, 119 Md. 673, 87 A. 917, 46 L.R.A.,N.S., 319.

It may be conceded that the general law is inconsistent with so much of the local law of Caroline county as makes it unlawful for any person to sell any kind of intoxicating liquors in that county under any circumstances, because the general law permits a wholesaler to sell such liquor to another wholesaler in or beyond that county, or to the holder of some other kind of license beyond that county, but the two are not so inconsistent that they cannot stand...