*1 CORPORATION POWELL YORKDALE Term, 353, September [No. 1963.] *2 7, 1964. Decided December Motion Jarmary rehearing January denied for filed
7,1965. 1964 before Hen- The cause was on argued April Horney JJ., and and Keat- derson, Prescott, SybErt, Circuit, Associate specially- ing, J., Judge Second Judicial before assigned, reargued and September Hender- son, Hammond, Marbury, C. J., Prescott, Horney, Sybert OppEnhéimER, JJ.
William Mosner Lee Har- (on arguments) F. both and W. rison Power Mosner reargument), with whom were & (on brief, on the for appellant. C. Trimble both (on arguments) appellee.
Ernest J., delivered the Hammond, the Court. majority opinion Horney Dissenting Prescott, dissent. JJ., opin- Marbury, ion by at page Prescott, J., infra.
Yorkdale which in 1960 Corporation, appellant, acquired *3 some five acres of land on a the east side York Road about acre, mile south Towson but about which was zoned (all use, for one or residential was for two-family apartment zoned use), asked the Commissioner of Zoning Baltimore County use, 1963 to zoned acre to reclassify residentially apartment to grant a for special an elevator exception apartment, grant a variance allowing an additional feet in for twenty-three height the proposed and to building, grant a density variance permit- ting the apartment house to embrace three hundred twenty-five Powell, living units. nearby appellee, Edwin E. property owner, protested. The zoning granted commissioner Yorkdale’s with the requests exception number of living units which cut two hundred eighty-five. Powell appealed to Board of Zoning which Appeals increase, denied the height further reduced the number of units to two living hundred fifty and otherwise affirmed the commissioner. Powell appealed to the where, circuit court by agreement, the case was heard and de- on question cided of whether the zoning ordinances of Balti- more County gave zoning officials power to grant a vari- ance as to density. argued
The case was before Judge on Berry 13, November 1963, 3, on December 4 he held that Art. Sec. 307 of the entitled “Variances” regulations Baltimore County
(“The of Baltimore and the Zoning County Commissioner Board of shall and are here- Zoning have Appeals, upon appeal, by given grant height variances from area and power * *” * regulations where strict the law would compliance with result in or unreasonable read “practical difficulty hardship”), 2, with Art. per- 217.7 of those defines regulations (which Sec. missible densities), did not authorize a variance density.
Yorkdale to this Court and case was appealed argued 28, consideration, on While a decision was under April we were informed that the Baltimore on Council had 2, 1963, 107, December into law passed signed which was by and became December 5 Executive 307, effective as to January to amend so Art. Sec. out spell that “no increase in residential density beyond otherwise allowable by Regulations Zoning [Sec. 217.7] shall be as a result of permitted any such variance grant from height or area regulations.” that the amendment made the main is-
Feeling might have moot, sue we set the case down for Md. Rule reargument, 835 a and the was briefed and point argued. has followed the that “an
Maryland consistently rule appel laws, late court is bound to decide a case according to existing though even when rightful rendered the court judgment Markell, below should be reversed as a consequence,” Judge Court, Comm., Tax repeated Woman’s Club v. State noted, it even when a (or, may judgment when wrong right by law). rendered made change also for this that a after a proposition change See the law decision below and before final decision Court appellate *4 will be that Court unless vested or accrued substan applied by tive would be disturbed or unless rights legislature shows intent, State, 322; a Keller v. 12 contrary Day Md. v. Day, 530; Prince, 688; Gordy 175 Md. Cockerham v. 97; Society, Children’s 185 Md. and Tudor Arms Apts. v. Shaffer, Md. 342. rule has been applied zoning
The cases. In Banner v. Home D, 425, 201 Md. a Company on property Sales owner Novem- 27, 1947, sought change ber proposed zoning of five acres classification, so housing a group to “Cottage Residential” he on which housing projects with his that he could proceed Com- County The Board large money. had amount spent De- request granted missioners of Arundel County Anne Hous- 2, 1947, “Group acres as cember and classified five 1951, for to permits owner applied On December ing.” before March houses. On group build seventy-three a peti- filed begun, houses had protestants construction of the acres from “Group of the five zoning tion for a change for a the petition to Residential.” While Housing” “Cottage considered, to build the began the owner change was being Arundel Anne for houses. seventy-three group foundations and the zoning protestants had no for appeals provision change “Group bill in that the alleging filed a equity, illegal, Housing” praying was arbitrary, discriminatory and void zoning that such be declared invalid declaration commissioner and zoning that construction be until the enjoined rezoning. the Board for petition act on the “Group Housing” The chancellor held that change valid, argu- At the zoning was and the protestants appealed. us, of the de- agreed ment before it was that since the passage from, Anne had been rezoned property cree appealed This “Cottage Arundel officials back to Residential.” said “The case before us has therefore 428) Court : (p. become * * * in the case before this Court zoning moot. The contested has been authorities.” superseded similar Falls Assn. v. Bd. holding There was a Lake court, on Appeals, Zon. 561. The circuit September 15, 1955, Board of in its action Zoning Appeals affirmed the from residential Com- rezoning ground a piece “E” thereafter, and, to this mercial. The Court protestants appealed on November a new land use the area was map “Business Local.” It was adopted which zoned property at here that uses under stipulated argument permitted same as were under “Business are not the permitted Local” “E” Commercial and that the commercial uses under the former are more under the latter. This they restricted than were Court said 565): (p.
“In the Banner in zoning case ultimate change of the satisfied the property of the purposes appellants, whereas, case, in the it is assumed that the present new Land Use does Map not satisfy appellants. But, cases, e., action, both the cause of i. the zon- classification that was ing subject litigation extinguished by repeal.” In 19, 23, Grau v. Board Appeals, Zoning
circuit court had affirmed the Board in reclassification of two lots at the northwest corner of Raven Boulevard and Loch Mussula Road in Baltimore from “B” (Semi-detached) Residential to Commercial. “E” The Board’s action was on July the circuit court’s on The pro June testants appealed this Court. On November County Commissioners for adopted new the area zoning map and zoned the lots R 6 (residential one and two families) * * “* the new This map. Court held the case moot because the reclassification ordered the Board of Zoning Appeals * ** has been superseded by County Commissioners.”
It Banner, would seem to-follow from the decisions Lake Falls and Grau that an applicant rezoning to a more intense use of his property, who has been successful before zon- ing authorities and the circuit court does not acquire vested or substantive right which may not be out wiped by legislation which takes effect during in this pendency Court the ap- peal from the actions below.
The decisions in these zoning cases are consistent with de
cisions
other areas of administrative law.
Beechwood
See
Lucas,
Coal Co. v.
There,
impair existing substantive rights but only alter the involved in procedural machinery the enforcement of legislation those such construed as rights, usually *6 on all operating instituted after its proceedings pas- whether sage, right the accrued after that before date.” Co., 509,
Relied on was v. Md. Thomas Penna. R. 162 where new law which with de novo away a did witnesses and the the ory appeals Compensation from the Commission’s action and the court review be confined to the record required before Commission, held to an the be applicable to entered appeal the to the on were before amendment law. Also relied State Jones, 21 v. Md. 432 limitations (statute shortening period Elliott, v. statute au upheld), (new 357 Elliott thorized court to remarriage offending party). Judge restrict Brune, Court, for the said further in Beechwood 256- (pp. 257) :
“Our views are reinforced rule of special are of statutory rights purely construction which statutory law are origin and have basis at common out wiped statutory creating when the them provision accrual, is repealed, of the regardless time of their * * * unless the rights concerned are It is diffi vested. cult to perceive how the Medical ‘right’ to have Board’s in an findings conclusively undetermined case presumed to be correct can be deemed vested right
[**] *" also 90; Ireland v. Shipley, See 165 Rich Md. Richardson v. ardson, 316; States, 217 73, v. United 318 U. S. Ziffrin 78, 87 621 L. Ed. Court held since (Supreme “a change in the law between nisi an prius and decision re appellate quires the appellate court to law” apply changed a change law as to motor carrier permits which became effective application to and the hearing before the Commission but before its decision must be followed Commission) Burlington States, Truck 156, Lines United 371 U. S. L. 2d change Ed. (a law applicable to admin istrative application which became effective administrative law before a case and decided
four months after the Commission court reviewing the appeal, required District Court heard law). change of the light for consideration in to remand p. also C. Sec. See S. Statutes J. otherwise if usual rule would
Yorkdale that even urges decision Berry’s make Judge here to govern and be applicable it, always correct, rendered or not when he whether it was body legislative of the is the intention consideration paramount and, change if it did not intend which the law changed it. apply not so the court will proceedings, apply did Council Baltimore that the Yorkdale finds evidence to pend- change apply variance density not intend to make the law, to its according amendatory ing cases in the fact that terms, after its enactment.” “forty-five effect was to take at the council show that
The minutes final 107 was called No. on December meeting *7 an amendment suggested and The chairman reading vote. Rose, zon- measure. Mr. the bill an emergency would make Council, the mem- commissioner, advising to the ing spoke favored the principle bers that the zoning department drawn, 180-day suggesting the bill as and bill but opposed zoning “high-rise of apartment” moratorium on the allowance of a new set would prepare all those interested during which Mr. zoning. the field of apartment to regulations pertaining that he Dill, Council of then advised the Planning, Director he favored pas- zones and that high-rise favored new strongly A to postpone measure. motion of Bill 107 as an interim sage discussion, and, withdrawn. after action on the bill was made emergency to make Bill 107 an The motion of the chairman failed, forty-five to effect and bill was take passed measure its enactment. days after Bill 107 that the did not intend
Yorkdale’s contention these would seem to be based on proceedings to to apply make the bill effec the failure of the Council to arguments: (a) County measure the emergency day tive as an Executive 3, the Charter of Art. (g) it under signed (when Sec. law)1 its action in pass- would become and Baltimore it ** * legislation any “Upon passage the same shall be forty- become effective it as law which would ing ordinary it, the Council after shows that signed five the executive days power wanted the authorities continue have zoning law; new grant the effective date variance until density status as to new because the Council continued the (b) quo law to it meant the old con- applications during period tinue to to and control which had been made apply applications law, though before the date of new even such ap- effective on, by had been plications finally not acted either yet authorities or the courts.
We cannot ascribe to the intent Yorkdale argues Council the for. Almost bill effect passed by the Council takes every forty- five after its bill days just enactment almost every passed Ill, by the effect on Legislature takes Art. (under State June XVI, Sec. Art. the Constitution Mary- Sec. land), even it was though passed Legislature and by ap- proved the Governor months before. Art. 308 (f) Sec. of the Charter of Baltimore that: County provides
“All local public laws ordinances enacted shall County Council take effect forty-five enactment, their unless by the affirmative vote of five members of the County Council or such law ordi- any nance shall date, be declared to be effective on a later or declared an measure affecting public health, welfare, safety in which latter event the same shall take effect date of its enactment.” The Notes to the Baltimore Home Rule Charter of Machen, Arthur W. Jr., Reporter to the Charter Board of Baltimore Charter, 1955, found in County, Baltimore County *8 “* * * 79, constitute, at p. according to the Reporter, ‘con- comment’ in temporaneous that are from they derived the offi- cial of records the Charter Board assembled during the period * * * presented County approval the to for Executive his or dis- ** * approval days any and within ten legis- return he shall such County approval the lation to Council with his endorsed thereon writing or in approving with statement of his reasons for not the Upon approval by County same. any legisla- the such Executive tion shall stand enacted.” intended to serve drafted” and were being the Charter was when or the who would guide adopt to voters purposes: (a) three election; help at to (b) the Charter the 1956 reject proposed officials; in appropriate (c) the first Council County in the construing to “the and Bar Charter instances Bench serve doubt, provisions if the Charter any The remove *9 in 1 suggested General Ritchie A. G. 286 that Attorney Op. every it would be wise for the to add to ordi- Legislature State bill a section that this Act shall take effect nary stating June Thomas customary. since this has been opinion practice Commissioner, v. Police 361. The Baltimore has cus- seemingly followed the same practice, un- adding to bills other than those not to take effect tomarily enactment, til later than forty-five not days bills, the direction that the ordinance shall take effect express forty-five after its enactment.
It would seem to follow that if customary postponement law, of the effective date constitu- of a either under the State tional provisions or the Baltimore provisions Charter meant, more, rule without usual legislative intent controls, that the law in effect when case is decided finally below, even it has though been since decision was changed ever, not ever, would apply pending proceedings, hardly if the so-called usual rule be so in- applied. This Court has not terpreted legislative intent. The Act of the General Assembly law, that changed the workmen’s dealt with compensation case, the Beechwood was by the Governor on March approved although Ill, under Art. Con- Sec. State stitution, law, like almost other every it was not to and State did not become effective until 1. The Beechwood opinion June found no significance fact had sixty-eight days elapsed between the time the bill enacted and when it be- came effective—during which the findings the Medical Board would continue to be conclusive and not subject review by if Commission there Compensation was legal evidence to Instead, them. this Court support said (speaking through Chief Judge Bruñe at : 256) p. case, case,
“In this as in the Thomas the repealing statute contains no clause saving respecting existing Bond there appeals. Judge said (162 : ‘The 513) words the amended are comprehensive [of statute]!
and admit of no exception. They constitute the only force, now in provision appeal the former provi- sion having been repealed enactment of one, this ; appeals *10 existing
without clause any saving respecting law and the the existing applied can have appellant only ” her to govern appeal.’ case, supra, was approved In the Thomas the act amending new law became the Governor on and the by April effective later. The Court 1931—forty-ñve days June Thomas no more than did we significance case found this : Indeed, there Judge 512) Beechwood. Chief Bond said (p. the construing “The denies the propriety appellant it should act to a so that have retrospective operation, again of the to witnesses apply prevent production on an been before the passage which had taken appeal of the And the act and the date its effectiveness. Legisla- is based on the that the argument principles must, language ture if the of the statute operation it, to intended not to cut off be have permit presumed attached, rights removing grounds pend- already by to the ing existing procedure or appeals, changing and in workmen’s disadvantage compensa- litigants, re- attitude tion not to from the liberal cases depart of Workmen’s accomplish to quired purposes * * * see no escape Act. But we Compensation to ap- the restriction to the previous construing apply peals.” certainty can with sought Yorkdale significance
No added did that the or be attached to fact accuracy meas- emergency to Bill 107 an the amendment make adopt not Council, like the Legisla- To do this in case the any ure. State health ture, public that the majority must find substantial unless is made legislation affected adversely or will be safety as an emergency Failure a bill effective. immediately pass enough mean more than that not would ordinarily measure emer- required interest immediate thought public members aid, away legislative intended do body not that the gency effect or of new rules as to application with usual not altered would because This changed proposition laws. measure failed before emergency make a bill an motion Legisla- Both the State place. the bill took which passed vote Council, the Char- Constitution, under ture, under the and be- measure ter, emergency bill as an any can almost pass instance, whether so, they given do not do they any cause at all fail to act so against merely in terms vote doing an in- as significance be accorded should not proposition, an ordinary as bill pass intended the they they dication that rules. to the usual subject measure should not be thought us, well have In before the Council may the case follow, far as the application no difference result would law was concerned, whether of the law to cases was zon- or an measure. The attitude ordinary Council, commissioner, that he wanted as revealed to the ing exceptions and special moratorium on variances density antici- might have for 180 and the Council *11 apartments days, during forty- would be granted that no new variances pated a real was date. There five from enactment to effective of County whether question and serious Sec. not, as it ex- which amended Bill 107 did
regulations by said isted, Bill 107 mean amendment made by what the already Judge in case then before it was to mean. The protestants 13 and the on November argued had so contended and Berry passed the Council decision was under consideration when not enacted Bill The bill was 107 and sent it to the Executive. S, when and did not become a law until December holding that it. decision signed Judge Berry’s County Executive filed De- new law for was the old law meant what the provided law, only ju- Bill cember so that when 107 became no could dicial decision extant was that variances density us one On this either in the case before or to else. granted, any facts, difference in of even on Yorkdale’s state theory mea- the bill whether was an result would follow bill. ordinary sure or intent that legislative no sufficient evidence of
We can find rules, and hold to the usual there- subject not to be 107 was effect while the case since the amended law came into fore that us, is moot. The will be dis- appeal before the case was pending missed. dismissed, costs.
Appeal with in which J., Prescott, dissenting opinion, following filed the HornEy JJ., Marbury, concurred. as to the majority with the
I in accord complete find myself not in full (although decision herein controls the law which mentioned the law all of to the manner which agreement as but, proper occurs that it frequently therein is expressed); the applicable determining as difficult as thereof is application law. involved single question in mind that the
It must be borne en variance, the case turns is the of a granting density construction; statutory of and rules tirely upon presumptions by from this fact away should not be drawn and our attention or five cases where four majority opinion, the first part little, pre on the questions if any, emphasis are cited with writer’s belief intent. is the (It or of legislative sumptions, a clear evinced of Baltimore to pend should not apply that Bill 107 unmistakable intention minutes be shown and that intention will ing litigation, law.) of the Maryland after a statement meeting the council’s ours, stated Chief In as it was a similar situation Justice Comm., A. 2d 293 Demarest et al. v. Zoning Maltbie in intent presumed one of “the matter becomes (Conn.), [of Leh Judge And Chief added.) legislative body].” (Emphasis man, York Court Appeals, for the New Shielcrawt serve may “General Moffett, principles 61 N. 2d said: E. for the intention of the Legislature in the search guides not are avail guides case but where better only particular the disclos they ‘govern able. We have said that default *12 * * end, *. In intent. ure of a different by Legislature sense and that the solu good justice it is in consideration of These statements seem added.) tion must be found.’” (Italics law, which will now be in full accord with the Maryland to be forth; all nearly Maryland it will be noted that of set It also are included therein. will majority cases cited by majority of the cases cited by be noted that none evidence; intent raised extrinsic legislative by of question and rules of stat general presumptions were all decided they change Bill No. 107 did not the classifica- construction. utory
135 classi- any it eliminate nor did of zoning any property, tion of former Sec- to amend was an “ordinance” it zoning; fication (forty- amendment 307, the effective date so that tion after in residential increase “no 1963) December five Regula- Zoning allowable that otherwise beyond density of a vari- such grant as a result any tions shall be permitted area height regulations.” ance from or Balto., held 206 Md. Court, City v. Higgins This And in nature. usually prospective
that
ordinances are
pro
is
ordinance
when the
this seems
appropriate
peculiarly
in a charter
such as the Council
legislative
mulgated by
body
en
laws,
are
generally,
can be little doubt
county. There
words,
ordi
conduct;
they,
in other
acted to
future
regulate
will not
“a statute
And
narily, are
nature.
prospective
clear,
so
words are
unless its
given a
operation,
retrospective
expression
in their
strong
retrospective
and imperative
them,
unless
attached
or
other
can be
meaning
manifest
gratified”
he
Legislature could not otherwise
intention
182 Md.
Company,
Tax
Power
Comm. v.
(emphasis added).
Mills,
302; Anne Arun
Md.
also
v.
180
Taggart
117. See
an
Act
amendatory
del
tion expressed” (italics added). general proposi tion, the law at the time of this Court’s decision is to be ap plied, even it though a reversal of the lower court’s requires judgment, which it under the law when proper existing Prince, 688; was entered. v. 175 v. Gordy Md. Cockerham 97; Society, Apts. Shaffer, Children's v. 185 Md. Tudor Arms 342; Comm., 191 Md. Tax 195 Md. Woman’s Club v. State But, construction, if there be one rule of which the statutory court decisions agree, recognize which authorities upon it is that the intention of Legislature should be effectuated. McKeon State, 437; Corp. v. Casey Development 211 Md. v. 138; Mont. 212 County, Company, Md. Tax v. Power Comm. supra; MTA, 509; Balto. Transit Co. C.J.S., v. 232 82 414; 223; Statutes, Statutes Jur., 50 and see the long Am. § § line of effect, cite, col Maryland cases like too numerous to Statutes, lected in the number 181 Maryland Digest, key (1). “fundamental,” This rule has been termed the “primary,” “para mount,” “cardinal,” rule of construction statutory (com State, Height pare adjec where most of these tives are All used). other rules of construction are statutory thereto, Statutes, subordinate and “all other C.J.S., § rules serve but as to assist intent guides such determining State, with greater certainty.” Antwerp v. (Italics added.) Van Plotkin, N. W. 2d 108 Romanchuk v. 2d (Mich.); 9 N. W. statutes, (Minn.). And this rule to all applies they whether remedies, remedies, relate merely to enforce or procedure otherwise; and it also to the effect applies that a statute has Statutes, upon pending actions and proceedings. 82 C.J.S., § actions and Pending proceedings. I will not attempt determine whether the ordinance here nature, involved is purely “remedial” as the make majority thereon, no I specific ruling and think the which legislative body enacted the same manifested a clear intention as to whether it should be applied and as to prospectively retrospectively, whether it should affect pending cases. There can be no doubt that a legislative body, when constitutional are proscriptions violated, exclude cases. may legislation affecting pending *14 Admin- See, (The Acts 1957 Chapter for example, § that certain is Act), provided wherein it istrative Procedure Article also proceedings.” affect See “shall not repeals 1. 66j4, Section in- legislative no that the makes claim majority
The opinion affect pending pro- Bill 107 should tent as to or not whether Bill in the language any is or arrived at ceedings by ascertained and itself, entirely presumptions upon general but turns the case an important This is rules of construction. general statutory of the case. phase circumstances, that, can under proper
There be little doubt when statute legislative history resort to the may Courts its en- motivated learn intent which seeking legislative v. MTA, Pressman supra; actment. Balto. Transit Co. Co., Barnes, 544; Supp. v. Westland Oil 96 F. Nelson Statutory (3rd Construction 656 (D.C., N.D.) Sutherland author, cited, last work states ed.), 4505. learned The § rule thus: bemay de- meaning “Before the true the statute must to the given problem termined consideration itself, addressed legislature to which the society legislative leg- consideration of the prior problem, of the statute under and to litigation, islative history administration of the statute prior and operation litigation.” Charter, Bill by Under the Baltimore enacted take effect as an measure from may emergency the date of its after its enactment where passage, forty-five days Bill, is named in the or from a date specific effective date In con- forty-five named therein later than the absence of days. stitutional the latter statutory proscriptions, permissible. Commissioner, 357; 82 C.J.S., Cf. Thomas v. Police Statutes, § Bill No. meeting
At a of the Council December reading 106 was called for final It was as an passed vote. measure, date, effect from to take which shows emergency alert the Council was as to the difference between keenly thereafter, Bill No. Immediately Bills. emergency ordinary was The likewise called for final and vote. reading pre- 23-21, amble states that which at require 23-20 Sections one and at hearing Planning least Director public least one such hearing by the Council before adopting with; regulation, were so the consid- complied being Bill, as thereon. This ered deliberation only previous after its drawn, of forty-five days for an effective date called meet- minutes of the as shown enactment. Whereupon, occurred: ing, following stated was called and the Chairman NO. 107
“BILL bill would make this that he had an amendment that Rose, Zoning measure. Mr. G. John *15 Commissioner, then before the Council appeared for of the Zoning the reasons explained Department Bill Bill a bill such as No. 107 but favoring opposing 180 period suggested day No. 107 as such and he would zoning during ‘high-rise apartment’ which would pre- all of involved granted persons of field to the regulations new set of pare pertaining of answered questions Mr. Rose apartment zoning. also the bill and of to pertaining members the Council to 180 moratorium. day the proposed Dill, Planning, appeared Malcolm Director of
“Mr. too, he, strongly and stated that before Council stated, also, that a new zone.’ He ‘high-rise favored Bill No. as an interim mea- he favored of passage that in light at this Mr. then stated sure time. Schield Mr. Dill and of the views both expressed various Rose, to action Mr. he would offer motion postpone Mr. with- study. on this bill further pending Schield at of Anderson. drew this motion Mr. request more discussion members among There then followed The then called on Mr. Ray- of the Council. Chairman Association, Carey, Chatterleigh mond representing of the of Bill passage who favor No. 107 spoke of residents stating many the fears because of an ex- of high-rise tremely rapid growth apartments. The Bristow, at the Mr. Andrew called then Chairman rea- Anderson, stated also who of Councilman request at this Bill No. passage of the sons in favor member as a that further Bristow stated Mr. time. bill Committee, an adequate felt he Revision Zoning establishing proper days in 180 presented
could be The Chair- zones. apartment and other type high-rise as bill of the passage he favored man then stated mo- measure, following he made an emergency ** tion to amend. make it an as to Bill so to amend followed a motion There the Bill to enact refused The Council ordinance. de- being measure, amendment the motion an emergency presented as originally enacted The Bill was then feated. words, In other after its enactment.” “take effect forty-five to have authorities zoning wanted explicitly under Sec- density” variances “residential grant power for a period for years) had exercised they tion 307 (a power Thereafter, S, this power after December forty-five days such cease, granting future question and the should This was ordinances. subsequent should depend upon variances Bill 107 body enacting legislative that the a clear manifestation effect, or it was a retrospective did not intend it to have challenging litigation under to affect Section thereunder. variances grant officials authority effect, emer- renders 107 an to the holding contrary, A (which of its passage from the date taking measure effect gency *16 for, Bill affects if the do), pend- refused to flatly the Council events, of to appeal course ing ordinary appeals, forty-five within from the variance granting any trial court heard, be and a likely would not after December heard, would not be this Court certainly to subsequent appeal Bill 107. date of until after the effective minutes, no the Council thought there was As I read the that, it permanently doing away of Bill was the passage but, by involving high-rise apartments, with variances density a moratorium there would be forty-five days, its after passage, ordinance relative thereto until a new comprehensive thereon of the holding majority should be formulated and enacted. The unusual, It can- incongruous, this if indeed not result. produces au- it that the zoning not be doubted is not (and questioned) thorities had the variances such as that involved power grant 5, 1963; for a after there- period forty-five days December if De- fore a half a dozen such variances were granted 5th, cember but before the expiration forty-five days were taken from their would be appeal granting, they good variances, and valid be while that would voided appellant to the (even though granted prior later be- variances) simply cause an had been I noted. unable to attribute to the appeal am an intention Council such an result. accomplish unfortunate On the when the contrary, Council refused to flatly pass measure, which, such, as an emergency if would passed as have taken officials to vari- away grant the power from of its enactment ances the date high-rise apartments general and left little doubt that (upon applying presump- tions and rules of the Bill was intended statutory construction) in- did not pending litigation, deliberately affect tend it to take as an nor intend it effect measure emergency case, de- supra, there was to affect cases. In the Nelson enactment, a statute, pro- course of its leted during argued The plaintiff vision that would made it retroactive. have was merely surplusage, that the deletion was made because it which would deleting but stated: that Judge Vogel “By part effect, saying it a was given Legislature have retroactive it should not such It seems to me that conclusion have effect. me, that when To it is likewise inescapable.” inescapable measure, it Council refused to enact Bill 107 as an emergency measure, the Bill should not be an saying or in fact effect. Black, In Interpretation (2nd Ed.), p. Laws learned author states the rule thus: that,
“It is said the absence of decla- any express act, ration in the whether it is meant to question is one of construction prospective retrospective statute, considered se and in connection upon per subject-matter. with the And occasion of the en- *17 to, in de- to assist be looked may oí law acting or prospective. as retroactive character termining its legislature when down that also been laid It has it into effect, to go the statute day future for fixes pro- to be that it is intended shows thereby plainly added.) only." spective (Italics 106; Dewart v. Connell, 43 N. also v. McGovern Law See J. Garland, 64 Me. 113; v. Inhabitants Pa. Jackman
Purdy, 29 Babcock, 26 Atl. v. 133; 86. Cf. Lydecker Reis v. 51 Cal. Graff, J.). 925 (N. cil., states: author, 584 and op. same pp.
The acts, statute, legislative “An like other amendatory not con- and will its passage, takes effect from only or facts prior or as as retroactive applying strued transactions, unless a con- pending proceedings, toor im- or necessarily stated intention is trary expressly * ** act amendatory contains And where plied. until not a future it shall take effect that provision date, until amend- old remains full force law added.) goes (Italics ment into operation.” Park Court, in Roland Judge McSherry, This Chief through State, fol- which may “The result Co. v. stated: Md. another, statute, construction, always of a is from one low itself, factor, conclusive sometimes, in and potent Phillips v. its also meaning.” as to the correct solution of See 135; 431; Cty., Balto. City, Tyrie Balto. v. State, results It seems the unfortunate Height supra. towards a conclusion weigh heavily out should pointed above cases, to affect pending that the Council not intend Bill 107 did no language since intention is from derived especially itself, and rules entirely general presumptions but of construction. moot,
I think the it should be decided in ac- case is not cordance with the law as it was when the variance was granted county was as it officials (which interpreted had been years). follows, what it seems basing not this dissent
Although upon *18 the to relative observations two make one or to appropriate fol- has states, consistently “Maryland It majority opinion. a case to decide is bound court an appellate lowed the rule that that this little doubt There can be laws.” existing according to herein, quota- but the rule, out above as pointed is the general such cases with hard to square that it is tion is so broad There, Co., Md. 274. R. 50 M. R. Appeal Tax Court v. W. in pending an 1876 law were under of petitions appellees the 1878, 413, a law. became of Ch. the Act the court below when it was held 1876 law. On appeal, Act the repealed This latter had been and what of was not retrospective, that the Act at law, repealed it had been although done under the previous inef- not rendered was hearing appeal, the time of the the fol- has been this case shows that nugatory. Shepard fectual or lowed times. many 362, the Md. Corp. Geary, v.
Again, Big Savage Ref. the time law at existing trial for applying was reversed judge trial judge learned This stated: “The he heard the case. Court * * * 1955, 82, supra, of the Acts decided Chapter of the Commission the action governed effective June However, case. in this Compensation Commission] [Workmen’s of the is limited to review evidence the of the court review at the law in upon based before the Commission effect * * way governed by It in no the review [Chapter time. *. 82] 1955, when it its order be May passed the Commission And cause it was not at that time [italics added].”1 effect 82 related to holding though purely this was the even Chapter Lucas, Coal matters Beechwood Co. “procedural” (See the was re language quoted Big Savage where mention peated. majority It is cited the with no made opinion which, ordinarily, this of the would call for a aspect case), thereof and its retrospective application application the authorities cited above that effect and those appeals. See in majority opinion. cited
Two further observations will made before concluding. language quoted ap- This case and were cited pellant. majority opinion It seems that should answer quotation, but no mention is made thereof. Banner, Falls cites the and Grau The majority opinion Lake cases, had become wherein it was held that the issues involved cases, moot. In of those authorities had zoning changed each al- zoning away or done with the classification classification Court, Falls, The the reason together. succinctly states Lake action, e., for its “The cause of i. classifi- rulings: zoning cation that was the of litigation extinguished by subject case, In repeal.” the instant there was no reclassification of the classification, property extinguishment its former but officials, No. 107 took merely away power certain, day grant variances. In the Thomas density case, cited majority, dur- Legislature, ing pendency litigation, repealed the former entirely *19 method of in Workmen’s appeal cases Compensation and adopted a new one. the grounds On that the new law purely pro- and, cedural in nature it if did not apply, appeal whatsoever available, would be it was held that the new law was retrospec- little, tive in effect. It has if any, to the case at analogy bar. CUP COMPANY
SOLO BROTH INTERNATIONAL PULP, OF ERHOOD AND SULPHITE PAPER MILL WORKERS, AFL-CIO, et al. 43, September Term,
[No. 1964.] itself.” Notes day end period that the of the any, forty-five themselves left legislative plan of 1 in the equivalent was to be the State June have same as the right to the and that the Council was State or, any emergency the effective date in to Legislature postpone of health public immediate the preservation for the “necessary XVI, Art. to Maryland, of safety” 2) Sec. (Constitution effective, number provided specified a law immediately make an ordi pass the number required than legislators, greater of Legislature; the five of seven bill of State (three-fifths nary in the belief of emergency.2 concurred Council) Charter, Notes, County Reporter’s p. Baltimore the 99 of See 1955, where it is said: Laws; Emergency Bearing in “(f) Date Measures. of Effective proposed by possibility that constitutional amendment the the mind Chapter may this force when Charter the Acts of (a), supra), (see goes the Notes to Section 308 Charter into effect provided laws ordinances of Council has not that Board any particular day, rather calendar but take on shall effect However, they enactment. their shall effect take section, this draft of tentative a revision which was made power given measure effec- to declare a 45-day beyond period. The also has the council on date tive any ‘an measure’ to take power measure declare respect, In this latter date of its enactment. effect ‘emergency’ declaring legislation its privilege so as to advance procedure level date is the followed State effective same XVI, 3 of State Constitution.” Article Section ap- change proposed of 1955 was (The Ch. 557 of laws XI-A, proved Art. Sec. and amended at the 1956 election provide follows: Constitution “* * * specify shall the num- the charters the various Counties may days, forty-five, need not be but which not to exceed ber may consecutive, sit the Counties Council of legislation enacting purpose such Counties year for the each ** *_”)