Mayor of Annapolis v. State, 30 Md. 112

Mayor of Annapolis v. State

30 Md. 112 | Md. | 1869

RouiNSON, J.,

delivered the opinion of the Court.

The view we take of this ease, makes it unnecessary to decide whether the traversers, a Municipal Corporation, are liable to indictment for obstructing or closing South street, alleged to be a public highway, in the city of Annapolis. If this be conceded, we are clearly of opinion, that their special plea, setting forth the acts of permission in pursuance of which the obstruction was erected, in connection with the provisions of the curing Act of 1867, ch. 240, constitute a bar to the indictment.

The general rule in the construction of this and all other statutes, is to ascertain the intention of the Legislature, and to this end, each and every provision of the law must be taken and compared together. Now although, the first section of the Act of 1867, in conferring power upon the corporation to open and discontinue new streets, provides, that it shall not extend to streets already opened; this limitation cannot be held to control the second section, which declares, that “all acts, deeds or ordinances of the Mayor, Recorder or Aldermen of said city, heretofore made, done, executed or passed in reference to the closing or discontinuance of any street, lane or alley, in said city, be and the same are hereby declared and made oj>erative and valid, in the same manner, as if the said Mayor, Recorder or Aldermen, had free power and authority to do the same, at the respective times, when the same were severally done.” Such a construction, -would defeat the plain, explicit and unambiguous provisions of the law.

But it is said, that the traversers are not charged with the closing or discontinuance of South street, and they cannot, therefore, rely upon this Act in response to the indictment. *118This objection is more technical than sonnd. The indictment does charge them with encroaching upon, obstructing and “stopping up.” said street by means of a fence, and it would be difficult to distinguish between these acts and the actual closing or discontinuance of the street. But be this as it may, the question is not whether they are so charged, but whether the obstructions erected by the traversers, and for which they are indicted, amount in fact to a closing or discontinuance of the street ? And upon this point, we think there cannot be a doubt. In their special plea, it is averred, that the fence across the street was erected by their permission ; that it had remained there for a period of over thirty years, and that the bed of the street had been sold and conveyed by them to the purchaser. We are at a loss to imagine a more effectual closing or discontinuance of a street, than thus averred in this plea. Moreover, this street was obstructed and this indictment pending, when the Act of 1867 was passed. It does not appear from the record, that any other street had been closed or discontinued or obstructed, and if the second section was not intended to embrace South street, “ what acts, deeds, ordinances” of the traversers “in the closing or discontinuance of any street, lane or alley, in said city,” was it the purpose of the Legislature to ratify and make valid? We cannot escape the conclusion therefore, but that it was the intention to confirm and make lawful the very acts of the traversers, charged in this indictment. Such an interpretation is demanded both by the spirit and letter of the statute.

But it is urged, in the next place, that the Act of 1867, contravenes the 28th section of Article 3, of the Constitution of 1864, which provides that “every law enacted by the General Assembly shall embrace but one subject and that shall be described in the title.” The object of this provision, and the evils against which it was intended to guard, are very clearly stated by this Court in Davis vs. State, 7 Md., 152; Keller, et al. vs. State, 11 Md. 525, and Parkinson *119vs. The State, 14 Md., 186, and these cases are decisive as to the objection now made.

The title of the Act of 1867, declares it to be “an Act to amend and alter the charter of the city of Annapolis.” The subject matter of legislation, was the charter of a Municipal Corporation, embracing its powers, rights and duties. In the first section the boundaries of the city are defined, power to open, alter and discontinue new streets conferred, and can it be said, that a clause ratifying acts and ordinances already done and passed by the corporation, in the closing or discontinuance of a street, is foreign to the subject matter as declared by the title ? That it can be considered as a blending of different and independent subjects in the same law ? We think not. And whilst it is the duty of the Court to place such a construction upon this constitutional provision, as shall guard against the mischiefs intended by it to be remedied, reason and sound policy demand, that "we should not by a technical interpretation embarrass legislation and encumber laws with long and prolix titles.

If then, the acts of the traversers, in closing or obstructing South street, and for which they have been indicted are made valid and lawful, the only remaining question to be decided, is whether they can plead the statute in bar to the indictment? In Keller vs. The State, 12 Md., 323, it was decided that a party could not be convicted after the law under which he was being prosecuted had been repealed, although the offence may have been committed before the repeal. “The same principle applies where the law is repealed or expires pending an appeal or writ of error from the judgment of an inferior Court,” because the decision must be in accordance with the law at the time of final judgment. In the language of C. J. Marshall, in 1 Cranch, 110, “if it be necessary to sot aside a judgment rightful when rendered, but which cannot bo affirmed but in violation of law, the judgment must be set aside.”

Applying the principles of these decisions to this case, we are of opinion, that the traversers had the right to interpose *120the plea, relying upon the Áct of 1867, as a bar to the further prosecution of the indictment.

(Decided 28th January, 1869.)

The judgment of the Court below, sustaining the demurrer to this plea was therefore erroneous and must be reversed.

Judgment reversed.