de Kalb Smith v. County School Commissioners

| Md. | Jun 20, 1895

Boyd, J.,

delivered the opinion of the Court.

The question in this case is whether the Clerk of the Circuit Court for Dorchester County shall pay to the Comptroller of the State one-third or one-half of all moneys received by him from what are called county scraping licenses to take oysters.

Under the Local Laws of that county the Clerk is authorized to issue licenses to residents of the county to employ their boats of a designated capacity in taking or catching oysters with scrapes or dredges in certain defined waters. By sec. 260 of Art. 10 of the Local Code, the School Commissioners of Dorchester County were required to furnish the Clerk with the requisite number of blank licenses, and the Clerk was required, at the end of the season, to return to the School Commissioners the licenses not issued, and to pay the license money into the public school fund of the county after deducting a fee of fifty cents for each license issued.

The general oyster laws of the State, as embodied in Art. 72 of the Code of Public General Laws, authorized certain licenses to be issued for the benefit of the State, but did not originally require any portion of the money received from the county scraping licenses to be paid to the State.

By chap. 380 of the Laws of 1894, the Legislature repealed Art. 72 of the Code of Public General Laws and re-enacted the same with amendments. Apparently conflicting provisions in sections 29 and 30 of that Article, as amended, have caused the difficulty in this case. Section 29 provides ■ that “all moneys received or obtained from dredging licenses, issued under the provisions of the preceding sections of this Article, and one-third of the moneys received from the county scraping licenses, and all fines, penalties or forfeitures imposed in pursuance thereof, shall, upon the warrant of the Comptroller, be paid into the treasury and placed to the credit of a fund which shall be called “ The Oyster Fund,” and the same'shall be kept separate and distinct from other funds in the treasury,” etc. It then goes on to provide, that this fund should only be used for the protection of fish and oysters in Maryland waters, the maintenance of the State Fishery Force, etc. The Comptroller is required to make a special statement in his annual report of the receipts and expenditures on account of said funds. Section 30 requires the Comptroller to furnish two sets of numbers corresponding with the licenses to catch oysters with scoop, scrape, dredge or any other similar instrument, to persons taking out such licenses. The size of numbers and places where they are to be put are mentioned with great particularity, and severe penalties are provided for the violation of any of the provisions of this section. Thus far the section corresponds with section 12 of Article 72 of the Code, and then adds the following: “The provisions of this section shall apply to all boats licensed to take oysters with scrape or scoop by any county in this State, except that the numbers for such boats shall be painted red instead of black, and the numbers shall be delivered by the Comptroller to the Clerks of the Court as they may be ordered, and at the end of the season all licenses not used shall be returned by said Clerks to the Comptroller; and the said Clerks shall also pay to the Comptroller one-half of all moneys received by him for such licenses, which sum shall be paid to the credit of the oyster ftmd.”

It will be observed that by section 29 one-third of the money received from the county scraping licenses is to be paid into the State Treasury and placed to the credit of the oyster fund. If that stood alone there could be no question as to what proportion of the amount received from these licenses should be paid to the State. But it is contended that section 30 provides that one-half shall be paid to the State, and that inasmuch as it is subsequent to section 29 it must prevail. “The general doctrine on the subject of implied repeals is that where there are two Acts on the same subject, both are to be given effect if possible. If, however, the two Acts are plainly repugnant to each other in any of their provisions, the latter Act, without any repealing clause, will operate to the extent of the repugnancy, as a repeal of the first.” Tax cases, 50 Md. 296. This also applies to different sections of the same law. Harrington v. Rochester, 10 Wend. 553; State v. Shelby County, 36 Ohio St. 326; Packer v. Sunbury, etc., R. Co., 19 Pa. St. 211. If, however, it is manifest from the whole act that the Legislature intended the prior section to remain in force, then such intention must govern.

But is section 30 “clearly repugnant” to section 29? It is true that it says the Clerks shall pay to the Comptroller one-half of all moneys received by them from “ such licenses,” But what licenses ? The only prior use of the word “ licenses ” in this section is in the clause immediately preceding, which says, “ and at the end of the season all licenses not used shall be returned by said Clerks to the Comptroller.” It is perfectly manifest that the Clerks will not receive any money from licenses not tised, and hence it is apparent that there is an error of some kind in this section. It is said on the part of the appellant that we should give the language such a construction as would prevent it from being meaningless, and hence we should construe the section to mean that the Clerk shall pay over one-half of all moneys received from licenses that were issued. To do that we must assume that the Legislature meant to say some-' thing other than what it did say, and if that be so, can we be cei'tain that it intended to require the Clerk to pay to the State one-half of the money received from these licenses for the use of the oyster fund when it had just said in a preceding section that one-third should be so paid ? In order to determine that section 30 repeals section 29, so far as the question involved in this controversy is concerned, we must give it a meaning different from the language used and contrary to its gramatical construction. Section 260 of Article 10 of the Local Code directed the Clerk of Dorchester County to pay all the money received from these licenses to the public school fund. Section 29 of Art. 72 of the Code of Public General Laws as amended by the Act of 1894, repealed it by implication to the extent of requiring one-third of the money to be paid to the State, and the-appellant contends that section 29 should be construed to be further amended by a section which admittedly does not apply to it, unless the construction is changed. Whilst, therefore, we think that the general principles of the rules of construction of statutes are as contended for by the appellant, yet it is clear that one section of an Article of the Code should not be held to be repealed by the section immediately succeeding it, when both were passed at the same time, unless the language of the latter is so clear and definite as to leave no room to question the intention of the Legislature.

Then, again, so far as the Act itself reflects on the intention of the Legislature, it would seem to point to section 29, as the one expressing the legislative intent on this subject. Sections 2 and 4 give the State only one-third of the money received from tonging licenses, which are issued by the State, and it is not probable thet the Legislature intended to give the State one-half of the proceeds of licenses issued by the counties — especially when it would be taken from the public school fund. Sections 66 and 67 A, which of course are subsequent to section- 30, require the moneys received from the licenses mentioned in them to be placed to the credit of the oyster fund, as provided by section twenty-nine. Thus showing that when the members of the Legislature reached section 66 and 67 A, they had in mind, had before them, section 29, which, as we have said, clearly stated that one-third of the proceeds of the county scraping licenses was to be placed to the credit of the oyster fund, and they could not have supposed or intended that one-half was to be so placed when they had the plain declaration to the contrary before them.

We are therefore of the opinion that the language of section 30 is too vague and indefinite to justify us in saying that it by implication repeals section 29, and, moreover, the whole Act shows that the will of the Legislature, as far as it can be gathered, was expressed by section 29. The decree of the Court below must be affirmed.

(Decided June 20th, 1895.)

Decree affirmed with costs to the appellee.