134 Md. 593 | Md. | 1919
delivered the opinion of the Court.
This appeal is from an order of the Baltimore City Court quashing the proceedings of the Highways Engineer and the Appeal Tax Court of Baltimore City, in which the appellee was assessed with the cost of repaving the sidewalk in front of its property, etc. The ground of the motion to quash and of the order appealed from was that Ordinance No. 266, in pursuance of which the assessment was made, was not passed by the City Council and was not a valid ordinance of the Mayor and City Council of Baltimore.
At the hearing of the motion to quash, the appellee, the appellant in the Court below, produced O. Charles Fried el, Chief Clerk of the Second Branch of the City Council, and also produced certified copies of the journals of the two branches of the City Council, from which it appears that the ordinance in question, Ordinance Ho. 266, was introduced in the Second Brandi as Ordinance S. B. No.. 149 on March 19th, 1917, and was referred to the Joint Standing Committee on Highways. It also appears from the journals that after a favorable report by that committee the ordinance was read the first time on April 30th, 1917, and on May 7th, 1917, it was read the second time and ordered to be engrossed for its third reading. On May 14th, 1917, it was read the third time and passed, the vote being taken “by yeas and nays” and the names of members voting entered upon the journal. It was then sent to the First Branch, where it was read the first time on May 14th, and the second time on May 21st, 1917. When it was taken up in the First Branch for its third reading, on May 24th, two amendments were proposed and adopted, and the ordinance, with the amendments, was then read the third time and passed by a yea and nay
In addition to the journals, the appellee offered in evidence two other ordinances, Ordinance F. B. Ho. 374 and Ordinance F. B. Ho. 375, the entries in the journals showing that they had been passed by the City Council and the message of the Mayor giving his reasons for not approving tiie same. One of these ordinances was an ordinance to repeal Ordinance Ho. 266, and the other was an ordinance which recited in its preamble that the amendments offered to Ordinance Ho. 266 had been erroneously omitted, and which contained the provisions of Ordinance Ho. 266, as amended.
The appellee also offered in evidence the original Ordinance S. B. 149 and the engrossed Ordinance Ho. 266, which was approved by the Mayor. They wore in the custody of the City Register and were produced by him. The engrossed ordinance, which is in the “exact language” of the original, bears the following endorsements: “Introduced, title read and referred to J. S. 0.—0. O. Friedel, Chief Clerk” (I. S. O. meaning Joint Standing Committee on Highways) ; “In Second Branch, April 30, 1917, read first time and laid over under the rule”: “In Second Branch, May 7, 1917, taken up, read second time and ordered to he engrossed, by order, C. O. Friedel, Chief Clerk”; “May 14, 1917, taken up, read third time and passed, by order, O. C. Friedel, Chief Clerk” ; “In First Branch, May 14, 1917, read and laid over under the rule, by order, Gilbert A. Hailey, Clerk”; “In First Branch, May 21, 1917, taken up, read second time and laid ever under the rule, by order, Gilbert A. Hailey, Clerk”; “In
“Second Branch Ordinance S. B. 149.
“I hereby certify that Ordinance S. B. Ho. 149 was duly passed in accordance with the requirements of the City Charter, as will be seen by reference to the following entries:
“Second Branch.
“First Beading, date April 30, 1917; Second Branch Journal, pages 575-578.
“Second Beading, date May 7, 1917; Second Branch Journal, page 595.
“Third Beading date May 14, 1917; Second Branch Journal, pages 603-604.
“First Branch.
“First Beading, dated May 14, 1917; First Branch Journal, page 768.
“Second Beading, date May 21, 1917; First Branch Journal, page 779.
. “Third Beading, date May 24, 1917; First Branch Journal, page
“Bemarks.
“I also certify that the above-mentioned ordinance was passed by a majority of all the members elected to each Branch, and that on its final passage, the vote was taken by yeas and nays, the names of members voting for and against same being 'entered in the respective journals. The said ordinance was not read the third time in either Branch until it had first been' actually engrossed for its third reading.
“(Signed) O. Chas. Friedel,
“Chief Clerk.
“The proper steps appear to have been taken in the passage of this ordinance, and there is no legal reason why it should not be approved.
“(Signed) S. S. Field,
“City Solicitor.”
Counsel for the appellees objected to the introduction of the journals and to the oral evidence offered to contradict- the “ordinance, as presented to the Court,” and to the introduction of the two other ordinances mentioned, and the entries
Section 221 of the Charter of Baltimore City’(Weeks’s Edition) provides:
“Every legislative act of the Mayor and City Council of Baltimore shall be by ordinance or resolution.
Ho ordinance or resolution shall be passed except by a vote of' a majority of all the members elected to each Branch, and on its final passage the vote shall be taken by yeas and nays, the names of members voting for and against the same being entered on the journal. Every ordinance enacted by the city shall embrace but one subject, which shall be described in its title, and no ordinance shall be revived, amended, or rb-enacted' by mere reference to its title, but the same shall be set forth at length, as in the original ordinance. And no ordinance shall become effective until it be read on three different days of the session in each Branch, unless all the members elected to the Branch where such ordinance is pending shall so determine by yeas and nays, to be recorded on the journal, and no ordinance shall be read a third time until it shall have been actually engrossed for a third reading.”
Section 23 of the Charter, which provides for the authentication of ordinances, is as follows:
“All ordinances or resolutions duly passed by the City Council, after being properly certified by the Presidents of the Eirst.and Second Branches of the City Council as having been so passed, shall be delivered by the Clerk of the Branch in which the same originated, to the Mayor for his approval, and there shall be noted on said ordinances or resolutions the date of said delivery; and, when approved by him, they shall become ordinances or resolutions of the Mayor and City Council of Baltimore,” etc.
Ordinances F. B. No. 374 and F. B. No. 375, and the entries in the journals relating thereto, were clearly inadmissible. Those ordinances were never approved by the Mayor and never became ordinances, of the Mayor and City Council of Baltimore. Baltimore City v. Gorter, 93 Md. 8. The recital in the preamble of Ordinance F. B. No. 375, that cor-la in amendments had been erroneously omitted from Ordinance No. 266 was at most only a declaration of the then members of the City Council that the amendments referred to bad been omitted. The only remaining evidence admitted by the Court below tending to impeach the ordinance consists of the entries in the journals of the two branches, relating to Ordinance 266 and the statement of Air. Briedel that it was the duty of Norval H. King “to have re-engrossed the ordinance with the amendments,” and we do not think this evidence sufficient, under the decisions in this State, to' justify the Court in striking down the ordinance on the ground that it was not passed by the City Council.
In the case of Fouke v. Fleming, 13 Md. 392, where the facts wore very similar to the evidence relied on in this case, it appeared from the Senate journal that a hill which originated in the House had been amended in the Senate, and the journal of the House indicated that the amendments: had been assented to by the House of Delegates, and were included in
The case mainly relied on by the appellee is Berry v. Balto., etc., R. R. Co., supra. But in that case Judge Ad vet said: “The engrossed bill as it was finally acted on by the two houses of the Legislature, with the endorsements thereon by the proper officers, as to the action of the respective Houses, together with the journals of both Houses, have been produced from the custody of their proper custodian; and from the evidence thus furnished it is made clear, beyond all question of dispute, that the particular section of the Act involved, as it passed the two houses of the Legislature, is essentially different from the corresponding section in the Act that received the imprint of the Great Seal, the signature of the Governor, and was lodged in the office of this Court for record.” In disposing of the contention of counsel that, under the cases of Fouke v. Fleming, supra, and Annapolis v. Harwood, supra, the Court had no right to examine the engrossed bill with its endorsements and the journals, he said: “In those cases it was not made distinctly to appear that the particular provision of the statute, as published, did not receive the legislative assent; the evidence not being such as the Court was willing to accept to overcome the strong presumption arising from the due authentication of the statutes there involved. It was assumed from the fact that the bills, as published, corresponded in all respects with the bills as engrossed, that they did receive the assent of the Legislature. But in this case now before us it is plainly shown by most unquestionable evidence, that the third section of the bill, as engrossed, before the third reading and the passage thereof, pursuant to the requirements of the Constitution, * * * as it actually passed, is essentially different from the corresponding section in the bill that was attested, sealed, signed by the Governor, and filed for record.” After referring to a number of cases, Judge Alvey further said: “But while the authorities just cited maintain that it is the right and duty of the Court to go behind the authentication of the statute,
The general rules of construction which govern in the interpretation of Acts of the Legislature are applicable to the legislative acts of a municipal corporation (State v. Kirkley, 29 Md. 85), and no good reason can be assigned why the rules governing the courts in determining whether an Act has been passed in accordance with the provisions of the Constitution should not be applied in determining whether an ordinance has been passed in accordance with the provisions of the charter of a municipal corporation. Applying those rules, as stated in the cases referred to, it is clear that the evidence furnished by the journals of the two branches of the City Council is not sufficient to overcome the presumption arising from the duo authentication of the ordinance in question. The statement by Hr. Friedel that it was the duty of Horval II. Xing “to have re-engrossed the ordinance with the amendments” was the mere expression of the opinion of the witness, and was not admissible as tending to show that the ordinance had been amended. But even if it was admissible, it
The record contains a certificate of tire Judge who presided at the hearing of the motion to quash setting out, under the head of “Addendum,” certain other evidence offered by the .appellee, some of which appears to have been admitted. We have examined this evidence, and we think that the evidence excluded by the Court was-, for the reasons we have already stated, properly rejected, and that the evidence admitted does not sustain the contention of the appellee.
It follows from what has been said that the judgment of the Court below quashing the proceedings of the Highways Engineer and the Appeal Tax Court must be reversed.
■ Judgmenb reversed, with costs and new trial awarded.