70 Md. 246 | Md. | 1889
— In this case the appellant applied for a mandamus to compel the clerk of the Circuit Court for Howard County to issue to him a license authorizing him to sell spirituous and fermented liquors in the second election district of that county. The result of the vote in that district whether such liquors should he sold therein, taken under the Act of 1888, ch. 402, was a tie, three hundred and twenty-one votes being cast for, and the same number against such sale. Previous to this time the voters of this district as well as of all the other districts of the county, had adopted the local option Act of 1882, ch. 450, which prohibited such sale. The Court below refused the mandamus, and we affirm that judgment for the reasons'stated in the following opinion of Judge Jones of the Circuit Court, delivered upon passing the order appealed from:
“Whether the writ of mandamus applied for in this case shall issue or not depends on the effect to he given
“Now, the repealing clause of this Act is not in terms a simple and absolute repeal of the Act of 1882, ch. 450, but its language is ‘be and the same is hereby repealed as far as said Act applies to the second election district of said County, and re-enacted and amended so as to read as follows.’ It is therefore manifest upon the face of the repealing clause itself, that it was not in the mind of the Legislature to totally obliterate and destroy the whole operative effect of the Act of 1882, but rather to effect some modification of it. What was this modification? The plain reading of subsequent sections, in the light of the history and policy of the legislation of which it is a part, makes it apparent that the amendment of the Act of 1882 was intended to extend only so far as to enable the voters of the designated locality to decide whether the then existing statute or policy in reference to the sale of spirituous, fermented, or intoxicating liquors should in their district be changed. The statute now being construed is a piece of what is known as ‘Local Option’ legislation. The principle upon which this legislation pro
“As to the concluding words of the fourth section, ‘and said Act shall apply therein as heretofore,’ it was argued on behalf of the petitioner that they were nugatory, because of attempting to re-enact the Act of 1882 in violation of Art. 3, sec. 28, of the Constitution. But this would he a reason for not construing the Act of 1888 as an attempt on the part of the Legislature to repeal the Act of 1882 by its first section, and to reenact it by the language of its fourth section ; for it is not to be presumed that the Legislature intended to do an unconstitutional and void thing ; and any construction that would lead to such a .conclusion ought to be avoided if possible. But these words are to he given some meaning, and to be intended to be used for some purpose. This can only be done by treating the law in which they occur as simply a submission to the voters of the designated locality, of the question whether the status upon the question of policy involved, existing at the time of the adoption of the law, should be changed. In this view, their meaning becomes obvious, and their use altogether appropriate. Another consideration deserving of notice, in connection with this fourth section is, that in the corresponding provision in -the Act of 1882 it is first provided that if a majority of the votes cast are against the sale of intoxicating liquors, then it shall not he lawful to sell them; and then it is provided that if it shall he found that a majority is for the sale, then the same may b'e sold ‘as now permitted.’ In this fourth
"It only remains to notice the suggestion that section 5 of the Act of 1888 (which provides that it shall take effect.from the date of its passage) is entitled to weight when taken in connection with the first section. But this fifth section would seem to have no special significance. Both the laws passed in 1886, before referred to, conclude with the same provision, and yet it is perfectly clear that neither of them was to take effect as a repeal of the Local Option laws then in force in the locality to which they applied, except in the event of its approval by a majority of the votes to be cast at the election provided for in the Act. The application for the mandamus in this case must therefore be refused.”
■ Order affirmed.