Martin, J.,
delivered the opinion of this court.
This is a writ of error directed to the city court of Baltic more, and brings before us the judgment of that court rendered against the plaintiff in error, upon an indictment, for violating the act of the legislature of Maryland, of 1847, ch. 193.
By the first section of this act, it is declared:
<c That it shall not be lawful for any person or persons within this State, to sell, dispose of, or barter any spirituous or fermented liquors or cordials of any kind, or in any quantity whatever, on the Sabbath day, usually called Sunday, and any person or persons violating the provisions of this act shall be liable to indictment in any court of this State, having criminal jurisdiction ; and upon conviction thereof shall be fined a sum not less than twenty dollars, nor more than one hundred dollars, at the discretion of the court, for the first offence, and if convicted a second time for a like offence the license of the person or persons so offending, shall be declared null and void by the judge of said court.”
[329]*329And by the second section, it is provided ;
‘£ That it shall be the duty of the treasurer of the State, or such other person, whose duty it is to have the tavern licenses prepared, to have inserted in said licenses a clause, specially excepting the Sabbath day from the operation of said licenses.”
It is perceived from an examination of this statute, that by the terms of the first section the judge, before whom the case is tried, is required, upon a conviction for a second offence, to forfeit the license of the party offending; and by the second section, it is made necessary to incorporate into a tavern license a clause excepting from its operations, the Sabbath day; and it is perfectly apparent, from the character of these provisions, that the act only intended to embrace the licensed tavern keep- or, and the licensed retailer of the liquors and cordials therein designated.
The act upon which this indictment was founded has no application to the importer, who is authorized to sell spirituous liquors in the form in which they were imported, without obtaining a license from the State of Maryland, by force of the constitution of the United States, as expounded in the case of Brown against the State of Maryland, 12, Wheat., 419. And the point raised in the argument of the cause, with respect to the right of the State in the exercise of its police power, to restrain the importer from a desecration of the Sabbath, by an exhibition of his merchandize for sale on that day, has therefore become a mere abstract and speculative question, upon which it does not become this court to express an opinion. The probability is, that a question of this character will never be presen ted for the adj udication of the j udicial tribunals of the country.
The right of the State to impose the limitations and prohibitions contained in the act of 1847, upon the class of persons intended to be embraced by it, cannot be doubted; and the only question to be decided by the court, is that which relates to the sufficiency of the indictment, in point of form, to authorise the judgment rendered by the court below, against the plaintiff in error.
The indictment contains two counts. The first, charges that the defendant unlawfully sold spirituous liquors on Sun[330]*330day, contrary to the form of the act of Assembly; and the allegation in the second is, that the traverser unlawfully disposed of spiritous liquors on the Sabbath day, to persons unknown, &c. But in neither count, is there to be found an averment, that the plaintiff in error was at the time of the sale of the liquors in. question, a tavern keeper or licensed retailer,-and his. counsel have insisted, that the indictment is in this respect defective, because it should have appeared on its-face, that the party accused, belonged to that class of persons, upon whom alone, the provisions of the act were designed to operate.
The indictment is, we think, open to this objection. The point indeed has already been determined by the construction we have placed upon the act, under which this defendant was indicted. We have said, that according to the correct exposi- . tion of that act, it must be regarded as embracing only licensed tavern keepers and licensed retailers, and assuming this to be its true interpretation, it is perfectly clear upon the settled prin-1 ciples of pleading in criminal cases, that it was incumbent on1 the State, to bring the party charged within the purview of the statute, by a positive averment that he belonged to that class of persons, who only were restrained from selling upon the Sabbath, and against whom alone the penalties and forfeitures provided by the act, in case of its-violation, were intended to be denounced. To carry into effect the intention of the legislature in framing this statute, and to enable the courts of criminal jurisdiction to execute its provisions, it is necessary to incorporate into it, by interpretation, the terms “licensed tavern keepers and licensed retailers. ’ ’ The act is therefore to be read as if the words were, “that it shall not be lawful for any person within this State, being a licensed tavern keeper or licensed retailer, to sell,” <fcc.; and treating this to be the true exposition- and reading of the act, the proposition is, we think, incontrovertible that the indictment should have contained on its face a distinct allegation, that the traverser was within the class of persons thus described.
In the case of Spiers vs. Parker, 1 Term Rep., 141, it was held, “that in an action for a penalty on a statute, the plaintiff must aver a case which brings the defendant within the act.”
[331]*331The rale of pleading in cases, where, after general words of .prohibition, exceptions arc created in the enacting clause of a statute, or in a subsequent clause or section, is stated with characteristic precision by Lord Mansfield, in Spiers vs. Parker, already adverted to. He said :
“There is a settled distinction between a proviso in the description of the offence, and a subsequent exemption from the penalty under certain circumstances. ’ ’
And Ashhurst, J., in the same case, said:
“The rule is, that a man who will bring an action for a penalty on an act of parliament, must shew himself entitled under the enacting clause; but if there be a subsequent exemption, that is a matter of defence.”
The same doctrine is announced in the case of Steel vs. Smith, cited by the counsel for the defendant in error, 1 Bar. & Ald., 38.
Bayly, remarked:—
“I cannot say that the proviso is a part of the same sentence, for if it had been omitted, the preceding sentence would have been entire. I admit that where there is an exception so incorporated with the enacting clause, that the one cannot be read without the other, there the exception must be negatived.”
Lord Ellenborough held, that it was not necessary for the plaintiff to notice the exception in his declaration.
He said:—
“The sense of die enacting clause is perfectly complete, and the proviso is so distinct, that seyeral sections might have been interposed between that, and the enacting clause, without any prejudice to the sense.
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Martin, J.,
delivered the opinion of this court.
This is a writ of error directed to the city court of Baltic more, and brings before us the judgment of that court rendered against the plaintiff in error, upon an indictment, for violating the act of the legislature of Maryland, of 1847, ch. 193.
By the first section of this act, it is declared:
<c That it shall not be lawful for any person or persons within this State, to sell, dispose of, or barter any spirituous or fermented liquors or cordials of any kind, or in any quantity whatever, on the Sabbath day, usually called Sunday, and any person or persons violating the provisions of this act shall be liable to indictment in any court of this State, having criminal jurisdiction ; and upon conviction thereof shall be fined a sum not less than twenty dollars, nor more than one hundred dollars, at the discretion of the court, for the first offence, and if convicted a second time for a like offence the license of the person or persons so offending, shall be declared null and void by the judge of said court.”
[329]*329And by the second section, it is provided ;
‘£ That it shall be the duty of the treasurer of the State, or such other person, whose duty it is to have the tavern licenses prepared, to have inserted in said licenses a clause, specially excepting the Sabbath day from the operation of said licenses.”
It is perceived from an examination of this statute, that by the terms of the first section the judge, before whom the case is tried, is required, upon a conviction for a second offence, to forfeit the license of the party offending; and by the second section, it is made necessary to incorporate into a tavern license a clause excepting from its operations, the Sabbath day; and it is perfectly apparent, from the character of these provisions, that the act only intended to embrace the licensed tavern keep- or, and the licensed retailer of the liquors and cordials therein designated.
The act upon which this indictment was founded has no application to the importer, who is authorized to sell spirituous liquors in the form in which they were imported, without obtaining a license from the State of Maryland, by force of the constitution of the United States, as expounded in the case of Brown against the State of Maryland, 12, Wheat., 419. And the point raised in the argument of the cause, with respect to the right of the State in the exercise of its police power, to restrain the importer from a desecration of the Sabbath, by an exhibition of his merchandize for sale on that day, has therefore become a mere abstract and speculative question, upon which it does not become this court to express an opinion. The probability is, that a question of this character will never be presen ted for the adj udication of the j udicial tribunals of the country.
The right of the State to impose the limitations and prohibitions contained in the act of 1847, upon the class of persons intended to be embraced by it, cannot be doubted; and the only question to be decided by the court, is that which relates to the sufficiency of the indictment, in point of form, to authorise the judgment rendered by the court below, against the plaintiff in error.
The indictment contains two counts. The first, charges that the defendant unlawfully sold spirituous liquors on Sun[330]*330day, contrary to the form of the act of Assembly; and the allegation in the second is, that the traverser unlawfully disposed of spiritous liquors on the Sabbath day, to persons unknown, &c. But in neither count, is there to be found an averment, that the plaintiff in error was at the time of the sale of the liquors in. question, a tavern keeper or licensed retailer,-and his. counsel have insisted, that the indictment is in this respect defective, because it should have appeared on its-face, that the party accused, belonged to that class of persons, upon whom alone, the provisions of the act were designed to operate.
The indictment is, we think, open to this objection. The point indeed has already been determined by the construction we have placed upon the act, under which this defendant was indicted. We have said, that according to the correct exposi- . tion of that act, it must be regarded as embracing only licensed tavern keepers and licensed retailers, and assuming this to be its true interpretation, it is perfectly clear upon the settled prin-1 ciples of pleading in criminal cases, that it was incumbent on1 the State, to bring the party charged within the purview of the statute, by a positive averment that he belonged to that class of persons, who only were restrained from selling upon the Sabbath, and against whom alone the penalties and forfeitures provided by the act, in case of its-violation, were intended to be denounced. To carry into effect the intention of the legislature in framing this statute, and to enable the courts of criminal jurisdiction to execute its provisions, it is necessary to incorporate into it, by interpretation, the terms “licensed tavern keepers and licensed retailers. ’ ’ The act is therefore to be read as if the words were, “that it shall not be lawful for any person within this State, being a licensed tavern keeper or licensed retailer, to sell,” <fcc.; and treating this to be the true exposition- and reading of the act, the proposition is, we think, incontrovertible that the indictment should have contained on its face a distinct allegation, that the traverser was within the class of persons thus described.
In the case of Spiers vs. Parker, 1 Term Rep., 141, it was held, “that in an action for a penalty on a statute, the plaintiff must aver a case which brings the defendant within the act.”
[331]*331The rale of pleading in cases, where, after general words of .prohibition, exceptions arc created in the enacting clause of a statute, or in a subsequent clause or section, is stated with characteristic precision by Lord Mansfield, in Spiers vs. Parker, already adverted to. He said :
“There is a settled distinction between a proviso in the description of the offence, and a subsequent exemption from the penalty under certain circumstances. ’ ’
And Ashhurst, J., in the same case, said:
“The rule is, that a man who will bring an action for a penalty on an act of parliament, must shew himself entitled under the enacting clause; but if there be a subsequent exemption, that is a matter of defence.”
The same doctrine is announced in the case of Steel vs. Smith, cited by the counsel for the defendant in error, 1 Bar. & Ald., 38.
Bayly, remarked:—
“I cannot say that the proviso is a part of the same sentence, for if it had been omitted, the preceding sentence would have been entire. I admit that where there is an exception so incorporated with the enacting clause, that the one cannot be read without the other, there the exception must be negatived.”
Lord Ellenborough held, that it was not necessary for the plaintiff to notice the exception in his declaration.
He said:—
“The sense of die enacting clause is perfectly complete, and the proviso is so distinct, that seyeral sections might have been interposed between that, and the enacting clause, without any prejudice to the sense. That there were no words of reference or of virtual incorporation, but this is a distinct and substantive proviso.”
The principle enunciated Ity the cases to which we have been referred, is admitted, but it has no application, we think, to question of pleading raised on this indictment.
You certainly look to the language of the second section of the act, and to the concluding words of the first section, as demonstrative of the intention of the legislature to include within [332]*332its provisions only a designated class. But it is pot a case where, after general prohibitory words, exemptions are carved out of the statute, either in its enacting clause .or in its subsequent clauses.
This act is to be considered on its true construction, as limited in its character and prohibitions. Confined to a prescribed class. There were no exceptions to be negatived by the indictment; and it was pot a case of exemption, to be interposed by the accused, as a matter of defence;
If, however, the case could be treated as an exception in favor of a particular class of individuals, and analogized to the adjudications on the game laws, and similar statutes, the indictment must have negatived the exception, because the exception would necessarily be incorporated into the enacting clause, as descriptive of the persons who could alone be guilty of violating the law.
The counsel for the defendant in error has contended, that the indictment is to be held sufficient, because the offence is charged in the language of the act. This is the doctrine as announced by the Court of Appeals, in the case of The State vs. Cassel, 2 Har. & Gill, 410, and in The State vs. Dent, 3 G. & Johns., 8. As a general principle, it is unquestionably correct. x
But what is the offence created by this statute, as correctly expounded ? It is not the sale of spirituous liquors upon the Sabbath. It is the sale of such liquors on that day, by persons who have been licensed to deal in the sale of liquors of this description, in conformity with the laws of the State. The character and qualification of the party charged, is a necessary element in the description of the offence. It is conceded that the offence is properly charged so far as regards the act done; the factum of the sale, as the words of the statute, have been pursued. But the objection of the counsel for the plaintiff in error to the indictment, is, that the offender has not been described. The distinction is manifest. The court is not informed from an inspection of this indictment, that Adam Bode is a licensed tavern keeper, or a licensed retailer of spirituous liquors. And the fatal defect is, that the party charged was [333]*333not described as a person within the purview of the statute, and capable of perpetrating the prohibited offence.
The necessity of incorporating into the indictment a description of the party charged, is illustrated by the provisions of the act, with respect to the punishment inflicted for this offence.
For the first offence the party is subjected to a fine of not less than twenty nor more than one hundred dollars; but it is provided, -'‘that if he is convicted a second time for a like offence, the license of the person so offending shall be declared null and void by the judge of the court.” And it seems to us that it would be impossible for the court to execute this part of the law, unless it appeared upon the face of the indictment, that the party charged was a licensed tavern keeper, or a licensed retailer, and in a predicament, therefore, to be visited with the forfeiture denounced against the commission of a second offence.
It follows from the views thus expressed, that we consider the indictment as defective, and upon that ground reverse the judgment of the city court.
JUDGMENT REVERSED.