Garrett v. Janes

• Citation: 3 A. 597,65 Md. 260
• Parties: GARRETT v. JANES.
• Decision Date: 09 April 1886
• Court: Court of Appeals of Maryland

3 A. 597

65 Md. 260

GARRETT v. JANES.

Court of Appeals of Maryland

April 9, 1886

Appeal from circuit court, Baltimore city.

BRYAN J., dissented.

Cowen & Cross, for appellant.

J Henry Keene, Jr., and J. Southgate Lemmon, for appellee.

RITCHIE J.

The controlling question in this case, and the only one after full consideration we deem it necessary to dwell upon, is whether the structure complained of is, in respect of the distance it projects upon the sidewalk, and of the architectural character, authorized by an ordinance of Baltimore city. The act of 1833 (chapter 180) empowered the mayor and common council to pass ordinances regulating the limits within which it should be lawful to erect steps, porticoes, or porches or other architectural ornaments to houses fronting on Mount Vernon or Washington place. The first ordinance passed in pursuance of this act was No. 59 of 1850; and the same regulations contained therein were re-enacted in 1858, and numbered 59 in the volume of Revised Ordinances of that year; the difference between the latter and that of 1850 being merely in the preamble, but in which they both refer to the act of 1833 as their authority. The enacting provision of the ordinance of 1858 is: "It shall not be lawful for any person to erect or set up any porticoes, steps, or any other ornamental structure whatever on Mount Vernon place, a greater distance into the place than nine feet, measuring from the building line thereof."

The width of Mount Vernon place is 200 feet, and of its sidewalks 18 feet. It is contended by the appellee that this municipal permission to encroach with any portico, steps, or any other ornamental structure upon Mount Vernon place nine feet, which is half the width of the pavement, has been repealed by the act of 1854, (chapter 9,) and the ordinance No. 36 of 1874 adopted thereafter. The act of 1854 conferred on the mayor and city council the power of regulating the limits within which it should be lawful to erect steps, porticoes, bulk windows, or other architectural ornaments to houses fronting on any of the streets, lanes, or alleys of the city. This act is codified as section 864 of article 4 of Public Local Laws. The ordinance of 1874 fixes the limit that any steps, porch, or portico may encroach from the building line upon any of the streets or alleys at one-third the width of the footway, and repeals all "inconsistent ordinances."

The operation of the act of 1854 did not, we think, take away the power conferred by the act of 1833. It simply enlarged the powers already bestowed as to a part of the city to embrace the whole of it. The power having already been to regulate porches, etc., in Mount Vernon place, a fair presumption is this later act was intended to apply to that portion of the city for which no such power had been given; and that, hence, the use of the words "streets, lanes, and alleys" was not meant to embrace the thoroughfares of Mount Vernon place, already provided for. Indeed, the designation of Mount Vernon place as a "place" tends to support this contradistinction. It is a locality of unusually spacious dimensions, and having special requirements as to the site of the Washington monument.

The same observations are equally applicable to the ordinances of 1874, founded on the statutes. But whatever might be the true construction of the ordinance of 1874 if it were the last act of municipal legislation on the subject to which it relates, or even assuming that it operated a repeal of the ordinance of 1858, this latter ordinance was revived by re-enactment in the adoption of the City Code of 1879. Both these ordinances are embodied in this Code; and all the ordinances therein set out were, by special and comprehensive ordinance, enacted to be valid and operative as such. That it is competent for a municipal legislature, by a single ordinance, to declare any compilation of ordinances or proposed ordinances in force, in the absence of a statutory prohibition, we do not doubt. Such a power has been too generally exercised, with implied, if not express, recognition by the courts, to be now questioned. The Baltimore City Code of 1879 has been recognized as the repository of the ordinances valid at its adoption in the subsequent city legislation, and has been cited by parties and relied on by this court in numerous cases as undoubted authority. To deny the operative effect of a comprehensive ordinance of this kind would practically be to deprive a city of the great utility of a Code. That the Code of 1879 was duly adopted, is apparent from the ordinances published with it. Section 48, art. 37, Pub. Gen. Laws, provides that the ordinances and resolutions of the mayor and city council of Baltimore may be read in evidence from the limited volumes published by the authority of said corporation. That the "printed volumes" are published by authority we think it competent to gather from the volumes as they appear in print; the object of the law being to remove the delay and expense incident to the production of manuscript originals where the published volumes purport to be authentic.

There is no specific reference to the ordinance allowing "any portico, steps, or any other ornamental structure whatever" to extend nine feet into Mount Vernon place in that clause of the ordinance of 1874 which repeals "inconsistent ordinances;" and, regarding the former as a special, and the latter as a general, ordinance, they should be considered as in pari materia. They are not inherently incompatible. The general rule in the construction of statutes, applicable alike to the act of 1854 and the ordinance of 1874, is that a later one of a general nature does not effect the repeal of a special one, unless direct reference is made to the latter with that intent, or in terms they are so irreconcilable that a repeal by implication is manifest.

Sedg. St. & Const. Law, (2d Ed.) 87, thus states the rule "In regard to the mode in which laws may be repealed by subsequent legislation, it is laid down as a rule that a general statute, without negative words, will not repeal the particular provision of a former one, unless the two acts are irreconcilably inconsistent; as, for instance, the statute 5 Eliz. c. 4, that none use a trade without being an apprentice, did not take away the previous statute, 4 & 5 Philip & Mary, c. 5, declaring that no weaver shall use, etc. The reason and philosophy of the rule is that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended...