Davis v. State , 7 Md. 151 ( 1854 )

Mason, J.,

delivered the opinion of this court, and his own, in part, dissenting opinion.

We did not understand the counsel for the appellant as contending, that the legislature had no power to amend, modify or even repeal the act of 1821, ch. 77, creating the office of inspector of bark. We understand, that while they clearly admit the power, they insist that the legislature in passing the act of 1854, ch. 200, entitled: “An act regulating inspections in the city of Baltimore,” have exercised that power in a mode not warranted by the constitution, and that therefore the law is of no avail.

Under our former constitution, there could have been no doubt, that as the act of 1854 was inconsistent with that of 1821, the last act would operate as a repeal of the former, in so far as they were repugnant to each other. It is supposed that under art. 3, sec. 17, of our new constitution, which provides, that ccno law or section of law shall be revived, amended or repealed, by reference to its title or section only,” there can be no repeal of a preexisting law, by the implication resulting from a subsequent inconsistent or contradictory legislative enactment. We do not so understand the new constitution.

The particular clause to which we refer, was evidently inserted in the constitution, for the purpose of preventing incautious and fraudulent legislation, and to enable members to act knowingly upon all subjects, and to guard them from the contingency of voting for the repeal or revival of laws, through mistake or accident, under the deceptive language often employed in the title of acts. Under our former system of legislation, a good or abad provision might slumber in the body of a law, of which the title gave no intimation, and hence members of the legislature might suppose from the title of the law, that they were voting for one thing, when in fact they were unwittingly voting for another directly the opposite; at least the title afforded often little or no information, as to what was contained in the body of the law, which was its office to have done. Not so however with an independent act of the legislature, establishing a new, or reversing some previous policy of the State. The very fact of establishing a particular rule of conduct for the public, presupposes án intention on the part of the legislature, that a contrary rule should not prevail, and therefore the enactment of one law, is as-much a repeal of all inconsistent laws, as if those inconsistent laws had been repealed by express words. It could never surely have been the intention of the framers of the constitution, that a positive enactment by the legislature upon a subject within their legitimate powers, was to be defeated, because a previous law, not in terms repealed, was inconsistent with it. If this strict test were required, many wholesome laws would be rendered wholly inoperative, because of the inability or neglect of members to search thoroughly the statute books for laws which might be inconsistent or- repugnant ; a work in many cases of so great difficulty, as to amount almost to impossibility.

The next objection urged to the validity of the act of 1854, is, that if its purpose was to create a new system of inspections, and to repeal the act of 1821, then the subject of the law is not sufficiently described by its title, as required by the 3rd article and 17th section of the constitution. The lan guage of the constitution is:' “Every law enacted by the legislature shall embrace but one subject, and that shall be described by the title.” We think the act of 1854, ch. 200, has sufficiently been made to conform to these requirements. The law relates to inspections, and to such' other matters only as are inseparably connected with it, and to none other, and therefore can be said to embrace but a single subject. It could hardly be successfully urged against a law, that it does not embrace and dispose of the whole subject to which it relates. If it could be, few laws, if any, could stand such a test.

The object of this constitutional provision’ is obvious and highly commendable. A practice had crept into our system of legislation, of engrafting, upon subjects of great public benefit and importance, for local or selfish purposes, foreign and often pernicious matters, and rather than endanger the main- subject, or for the purpose of securing, new strength for it, members were often induced to sanction and actually vote for such provisions, which- if they were offered as independent subjects, would never have received their support. In this way the people of our State, have been frequently inflicted with evil and injurious legislation. Besides, foreign matter has often been stealthily incorporated into- a law, during the haste and confusion always incident upon-the close of the sessions of all legislative bodies, and it has not unfrequently happened,, that in this way the statute books have shown the existence of enactments, that few of the members of the legislature knew any thing of before. To remedy such and similar evils, was this provision inserted into the constitution, and we think wisely inserted.

We are not prepared to say, that a whole law, otherwise Constitutional, would be rendered void by the introduction of a single foreign or irrelevant subject into it, and where such subject was not indicated-in-the title. In such a ease the irrelevant matter would be rejected as void, while the principal subject of the law would be supported, if properly described in the title. But if an act of Assembly, be composed of a number of discordant and dissimilar subjects, so that no one could be clearly recognised as the controlling or principal one, the whole law would be void.

The appellant, in the next place, contends, that the law of 1854 is unconstitutional and void, inasmuch as it seeks to take from the governor the appointment of the inspector; and art. 2 and sec. 11 of the constitution is relied on to support this position. That section provides, that the governor shall appoint all officers “whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office.” In few words, we think this provision means, simply, that the governor shall have the power to fill all offices in the State, whether created by the constitution or by act of Assembly, unless otherwise provided by the one or the other. When, therefore, the legislature has created an office by act of Assembly, the legislature can designate by whom and in what manner the person who is to fill the office shall be appointed. If the source of appointment is not thus designated,- the governor, by virtue of the above section, makes the appointment, the same as if he had been specially authorised by the act lo do so. The act of 1821, ch. 77, authorises the governor to make the appointment of inspector, and the same power that conferred this authority upon the governor can take it from-him. The office we are now considering is one of legislative creation; and by the legislature it can be modified, controlled or abolished, and within these general powers is embraced the right to-change the mode of the appointment to the office. We have only to add, that as the legislature has the power to withdraw the authority to' appoint from the governor, the mode pointed out by the act of 1854, by which inspectors under that act are to be designated and qualified, was a constitutional exercise of legislative power, and we need not say whether the inspectors under the act of 1854 are technically officers in point of law or not.

This leads us to the consideration of another question raised by the record. Conceding the act of 1854 to be in all respects constitutional, and that the mode pointed out for designating or appointing the inspectors under it was legal and valid, still, is that act so far repugnant to the act of 1821, and to the other acts relating to the inspection of bark, as to operate as a total repeal of them ?

A majority of the court are of opinion, that whether the act of 1854 abolishes the office as it formerly existed or not, it nevertheless must be construed to require the inspector who might be appointed by the governor to take out a license as any other person, and in deciding this point they have said enough to dispose of the case as made by the record.

Upon this point the judge who delivers this opinion thinks differently. In the first place, there is no attempt at an express repeal, and a repeal by implication can only result from a clear, palpable conflict between the last and the previous law. The true test by which we are to ascertain whether such conflict or repugnancy exists, is, can the two laws stand together and be executed at one and the same time? By the act of 1821, no one could inspect bark but the officer appointed by the governor. This provision is clearly repealed, because by the act of 1854, any one can do so who takes out a license as directed by the act. The privilege, however, is not extended to any other than to those who take out a license, and any person who may attempt to exercise the privilege without such license is subjected to a penalty, and in this way it is supposed that the act is made, by implication, to exclude from the right to inspect the duly commissioned officers appointed by the governor under previous laws, unless they take out a license. I do not so' construe the law of 1854. Its object simply was to permit other persons, upon certain conditions, to exercise the privilege of inspecting in common with the commissioned officers. I do not understand the act of 1854 as affixing a new condition to the exercise of the right to inspect under the act of 1821, but as merely extending the rights or privileges of that act to all private citizens who may think proper to take out a license. If, therefore, the inspectors appointed by the governor be not subject to the penalty, and I think they are not, there can be no doubt that they might, concurrently with the licensed inspectors, continue to discharge the duties of their office as formerly, subject only to the changes and modifications made in the system by the act of 1854. Their doing so would in no way bring them in conflict with the licensed inspectors, and their powers could not therefore be said to be repugnant to each other.

By the act of 1821, chap. 77, sec. 7, it was obviously the design of tire legislature to empower the inspector of bark for Baltimore city to exercise his office beyond the limits of Baltimore should occasion call for it,, though perhaps he might not have been required to do so. So far from the act of 1854 repealing this provision, it clearly, by implication, recognises it. I cannot read the latter act without clearly discovering that the legislature contemplated that inspections were still to be made outside of the limits of Baltimore. It provides, that “no license shall authorise any inspector to act as such out of the limits of the city in which the same may have been granted;” and the act grants no authority to any one else than the clerk of the Court of Common Pleas of Baltimore to issue such license. Who then is to make inspections of bark out of Baltimore? Certainly not the inspectors created by the act of 1854, and unless they are made by the appointee of the governor, they could not be made at all. From this circumstance, so far from discovering a purpose to destroy the office as it originally stood, I find a manifest recognition of it by leaving certain duties to be discharged exclusively by its incumbent.

We do not perceive, in the act of 1854, anything so repugnant to good morals and public policy as to render it void.

The remaining question relates to the jurisdiction of the Circuit Court of the city of Baltimore to issue writs of error.

In the case of Manly vs. The State, decided at this term, we have said, that the Superior Court of Baltimore has the power to grant writs of error by virtue of its general equity jurisdiction conferred by the constitution. The constitution authorises the creation by the legislature of the Circuit Court, and in the exercise of that power, in the passage of the act of 1853, chap. 122, “concurrent jurisdiction with the Superior Court of Baltimore city, in all cases in equity,” and geneially, such cases “as have heretofore been conferred on the chancellor of this State, so far as regards the fifth judicial circuit,” has been given to the Circuit Court of. Baltimore city. This jurisdiction is ample enough tp warrant the issuing of writs of error.

Judgment affirmed-.

Mason, J., dissenting in part.