delivered the following dissenting opinion:
I dissent from the opinion pronounced in this case by two of my brethren. Inasmuch as 1 am of the opinion that the act charged against the' traverser is not within the Act of Assembly of 1858, chapter 55, I shall confine myself in what I have to say to the reasons which induce this belief, contenting myself, in other respects, with ‘the observation, that were I of the opinion that the act alleged against the traverser was within the purview of the statute, in such event, 1 should have no difficulty in holding the averments of the indictment all sufficient to justify a valid judgment.
I take it that this law was designed to do good and to work, as far as practicable, a reform of a great evil—the demoralization of youth and negroes by the use of intoxicating drinks. I cannot, however, suppose that its authors purposed to accomplish this end by a violation of the Constitution of the State,- nor, do I think, in its passage, the Legislature has, in anywise, usurped forbidden power.
Could I bring my mind to the conclusion that more than one subject is “embraced” in the Act; or, that the one subject is not “described” in the “title;” or, that the words “sell” and “give,” as found in the body of the Act do not mean the same but different things, then, it would be impossible for me to avoid declaring the law to be unconstitutional and void.
In the case of Franklin vs. The State, 12 Md. Rep., 247, I fully set out my reasons for holding the words “sell” and “give” as meaning the same thing in the connection in which they are employed in this Act of Assembly, however dissimilar their meaning might be in other associations. I do not propose to reiterate them here,
I neither know of any, nor shall 1 ever sanction any power in the Legislature, or the courts, on any ground of public or other policy, to annul a plain provision of the Constitution.
The language of the 17th section of the 3rd Article of that instrument, to my limited understanding, is too plain to admit of but one interpretation.
What is it?
The section emphatically and unequivocally declares that,. *202“Every law enacted by the Legislature shall embrace but one subject, and that shall be described in the title.”
It is impossible language could be less ambiguous, or more explicit. Its interdict, as well as its command, is inexorably positive.
This being so, the following inquiries are necessarily and unavoidably presented.
1st. Is there more than one subject “embraced” within the law?
2nd. If the law embrace but one subject, then, is that one (not another) subject described in the title of the law?
If these inquiries be applied to the Act of 1858, we are required to determine whether or not “sell” and “give” have the same meaning. This is a duty which we cannot escape.
If they do not mean the same, but different things, then the-law embraces more than one, because different subjects; (things being subjects, and subjects being things,) and must therefore be unconstitutional and void.
It has been said, in argument, that the words “sell” and “give” as used in the Act were intended to express not the same but different ideas.
If I correctly comprehend this statement, then I take it as conceding, when considered 'with reference to its logical sequence, the unconstitutionality of the Act; otherwise, it is felo de se,. or, in other words, to substantially declare, that although “to sell” a thing is different from “to give” a thing, yet, notwithstanding such difference, the description of the one thing is also the description of another and different thing. And this intrepretation brings about this anomaly that although the title describes only sales, yet it also describes gifts. How one can be but one, and, at the same time, more than one, is a proposition too subtle for my comprehension. In nothing but that greatest of all mysteries—the Most Holy Trinity—can such be.
In the case now before the court we have this state of things:—the person who actually sold the liquor, and who did. an act described in the title, goes unpunished, whilst one who did an act not described in the title, but different from what is there described, is punished.
*203My opinion is, that the Act only applies to persons who sell liquor in the way of trade, and that the words “give” and “dispose of,” were merely inserted to guard against the devices and practices to which I referred in Fanklin vs. The State.
I will remark, that a large portion of the opinion of my brothers consists of extracts from the writings of eminent jurists, as to the mode of getting at the intention of the Legislature. So far from cavilling at, I cheerfully yield acquiescence to their authority in all cases to which they are applicable and which they should control.
I believe the law to be a good one, and that the surest way to secure its beneficial operation is, not to force its application beyond its carefully ascertained limits. Nothing could have been easier, if such had been the purpose of the Legislature, than to have passed an Act, the title of which would have forbidden the use of intoxicating liquors by minors and negroes. But this they did not do.
The experience of the world has shown the difficulty of enforcing sumptuary laws, however wisely conceived, and the ill-will and irritation produced when they are pushed by latitudinarian, or strained interpretation, beyond the palpable and undisputed boundary; and the more especially so in cases similar to this, when this has been done by giving a significance to the words of the Constitution which they do not clearly import.
Believing that the Act includes but one subject—namely, the sale of liquors—and that subject is described in the title, I think it constitutional; but if the word sale is to be considered the equivalent of that of use, then, under such an interpretation, the man who should set fire to, or pour into the river, or drink the liquor himself, would be indictable and punishable under this Act. Extreme as are the corollaries put, yet they each, and all, follow from the premises.
Understanding the Constitution as I do, with every respect for the opinions of others, I cannot but think the traverser has been punished in direct opposition to the constitutional charter. In all this I may be wrong, but I was never clearer in my judgment in regard to any matter about which 1 entertained an opinion.
*204But be this as it may, I think it the safer to err on the side of the rights of the citizen than to presume against them; and as was said by Chief Justice Marshall in the case of United States vs. Wiltberger, 5 Wheaton, 96: “It would be dangerous,.indeed, to cany the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognised in expounding criminal laws, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.”