Ulman v. State

• Decision Date: 13 January 1921
• Docket Number: 92.
• Citation: 113 A. 124,137 Md. 642
• Parties: ULMAN et al. v. STATE.
• Court: Maryland Court of Appeals

113 A. 124

137 Md. 642

ULMAN et al. v. STATE.

No. 92.

Court of Appeals of Maryland

January 13, 1921

Appeal from Criminal Court of Baltimore City; James P. Gorter Judge.

Bernard Ulman and another were indicted in Baltimore City for selling intoxicating liquor without a license. Demurrer to the indictment overruled and demurrers to the special pleas sustained, and defendants appeal. Affirmed.

Argued before BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS and OFFUTT, JJ.

William Curran, of Baltimore, for appellants.

Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen and Robert F. Leach, Jr., State's Atty., of Baltimore, on the brief), for the State.

ADKINS J.

The appellants were indicted in Baltimore City for selling intoxicating liquor without a license. They demurred to this indictment, and the demurrer was overruled, whereupon they filed two special pleas in which respectively they admit that on May 8, 1920, they sold 50 pints of whisky to Lipman Kiewe, and 50 pints to Jacob Legum "for nonbeverage purposes, to wit, for medicinal purposes"; that at the time of the said sale they were duly permitted and authorized by permit, issued by John F. Kramer, United States Commissioner of Prohibition, under the National Prohibition Act (41 Stat. 305) and Regulations issued thereunder, to sell intoxicating liquors for other than beverage purposes to others holding permits, which confer authority to purchase and use intoxicating liquors for nonbeverage purposes; that the said Lipman Kiewe and Jacob Legum then and there held said permits; that the said defendants acted under such permits issued as aforesaid to them, and all provisions of the National Prohibition Act and Regulations issued thereunder were then and there strictly observed. To each of which pleas the state demurred, and the demurrers were sustained. This appeal is from the rulings of the trial court on the respective demurrers.

It is unnecessary to set out the counts in the indictment, as the demurrer to the indictment is based, not on the form of the indictment, but on the general proposition that there is not now, and was not at the time of the alleged offenses, any enforceable law in Maryland prohibiting the sale of intoxicating liquor in Baltimore City without a state license. The contention of appellants is, not that the liquor laws applicable to Baltimore City were not valid at the time of their passage, or that they have been repealed either expressly or by implication by any later statute of this state; but that they have been abrogated or nullified by the Eighteenth Amendment to the Constitution of the United States and the act of Congress known as the Volstead Act. If this is so, it must be because the statute in question is repugnant in all its parts to the said amendment and act of Congress, or at least to such an extent that when the repugnant provisions are eliminated the remaining parts of the act do not carry out any of the purposes for which the law was enacted. It certainly cannot be because of any exclusive jurisdiction assumed by the federal government under the amendment, for the amendment expressly provides for concurrent action. For the purpose of this case it is not necessary to decide whether the prohibition feature of the Maryland license law would now be enforceable if the Eighteenth Amendment had prohibited the sale of intoxicating liquor for every purpose. In passing, however, it is to be noted that it has been held in at least four states that a later local option law prohibiting the sale of intoxicating liquor in one of the counties of a state does not prevent prosecution for violation of an earlier law prohibiting sale without license. Com. v. Barbour, 121 Ky. 463, 89 S.W. 479, 3 L. R. A. (N. S.) 620; State v. Smiley, 101 N.C. 709, 7 S.E. 904; Webster v. Com., 89 Va. 154, 15 S.E. 513; State v. Swanson, 85 Minn. 112, 88 N.W. 416. See, also, 23 Cyc. p. 120.

We have here to deal with the federal Constitution and an act of Congress which permit the sale of intoxicating liquors for nonbeverage purposes, and a state law which prohibits the sale of such liquors without a license for any purpose. Certainly there is no conflict so far as the state law applies to sales for nonbeverage purposes. Because it permitted the license of sales for beverage purposes also when such sales were not prohibited by the federal Constitution, and because such licenses can no longer be issued, it does not follow that the whole law has been abrogated. On the contrary, it is not unreasonable to suppose the Legislature would have enacted laws regulating the liquor business and providing for a revenue from such sales as would have been permissible if the Eighteenth Amendment had then been in force. One of the ways of exercising control over the business by the state and preventing clandestine and illegal sales would be to enforce...