Kirkwood v. Provident Sav. Bank of Baltimore

• Decision Date: 23 June 1954
• Docket Number: No. 180,180
• Citation: 106 A.2d 103,205 Md. 48
• Parties: KIRKWOOD et al. v. PROVIDENT SAV. BANK OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 48

205 Md. 48

106 A.2d 103

KIRKWOOD et al. v. PROVIDENT SAV. BANK OF BALTIMORE.

No. 180.

Court of Appeals of Maryland.

June 23, 1954.

W. Giles Parker, Asst. Atty. Gen., for appellants.

David R. Owen, Baltimore (Semmes, Bowen & Semmes and John H. Mudd, Baltimore, on the brief), for appellee.

L. Vernon Miller and Frank L. Fuller, III, Baltimore, on the brief on behalf of Savings Bank of Baltimore, amici curiae.

Before DELAPLAINE, COLLINS and HENDERSON, JJ.

DELAPLAINE, Judge.

Provident Savings Bank of Baltimore, a mutual savings bank maintaining a central office in Baltimore and branch offices in Baltimore and Baltimore County, brought this suit against the State Bank Commissioner and the Attorney General of Maryland to obtain a judicial declaration that it has the power to establish additional branch offices in the counties of Maryland without the approval of the State Bank Commissioner, and to enjoin the defendants from prohibiting it from establishing branch offices in the counties, particularly at North Point Road and Eastern Avenue in Baltimore County.

This bank was incorporated by Act of the Maryland Legislature in 1886. The Act authorized the bank to establish 'a central office and branches in such parts of the city, and of the adjacent parts of Baltimore county, known as the 'Belt,' as cannot now be adequately reached by the present Savings Banks.' Laws 1886, ch. 145.

In 1888 the Legislature enlarged the bank's charter power by authorizing it to establish 'a central office in the city of Baltimore, and branches in said city and in the counties of the State of Maryland.' Laws 1888, chs. 69, 245.

Branch banking has been an outstanding feature of Provident's business. Within four months after its incorporation, six branches were in operation. In 1890 it established a branch at Sparrows Point, and in 1920 a branch at Dundalk. These are still in operation along with twelve branches in Baltimore.

Provident now desires to open a branch in a new shopping center at Essex in Baltimore County. But State Bank Commissioner William H. Kirkwood, Jr., acting upon an opinion of Attorney General Rollins, has taken the position that when the Legislature in 1935 empowered any mutual savings bank to establish branches in the same city, town or village with the approval of the Bank Commissioner, Provident's power to establish branches in the counties was revoked by implication.

Provident thereupon instituted this suit to obtain an adjudication that the 1935 Act does not repeal Provident's charter power. Provident declared that it has no desire to avoid regulation by the Bank Commissioner; and that, in fact, ever since the office of Bank Commissioner was created, it has obtained his approval before opening any branch office, even though such approval was not necessary. However, it asserted that it is vitally interested in preserving its charter powers, and that unless the Attorney General's opinion is overruled, its power to establish branches in the counties will be lost.

The Uniform Declaratory Judgments Act, Code 1951, art. 31A, § 2, provides that any person whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.

Section 6 of the Uniform Act provides that relief by declaratory judgment or decree may be granted in all civil cases in which an actual controversy exists between contending parties, or in which the court is satisfied that antagonistic claims are present between parties involved which indicate imminent and inevitable litigation, or when in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which he has a concrete interest and that there is a challenge or denial of such asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment or decree shall serve to terminate the uncertainty or controversy giving rise to the proceedings.

Generally, a controversy that will justify a court in entertaining a suit under the Uniform Act must be something more than a mere difference of opinion or a theoretical question. It must present a state of facts involving persons adversely interested in matters in respect to which a declaration is sought. Tanner v. McKeldin, 202 Md. 569, 576, 577, 97 A.2d 449, 452. As Provident has an actual and justiciable controversy with the State Bank Commissioner and the Attorney General, it had the right to invoke the Uniform Act.

The Savings Bank of Baltimore, as amicus curiae, filed a brief in this Court suggesting that the Court below went beyond the requirements of the case in ruling upon charter powers of the seven other savings banks to establish branch offices. We agree that, in the decision of this case, no adjudication is made of the rights of other banks.

In 1910 the Legislature completely revised the banking laws of this State. In enacting Article 11 of the Maryland Code, entitled 'Banks and Trust Companies', it created the office of State Bank Commissioner and made provision for the regulation and supervision of all banks, savings institutions and trust companies in Maryland. Laws 1910, ch. 219.

The general law authorizing mutual savings banks to establish branch offices, which was passed by the Legislature in 1935, and upon which appellants rely, provides as follows: 'With the approval of the Bank Commissioner, any mutual savings institution shall have the right and authority to establish in the same city, town or village and maintain branches where its guarantee fund equals the minimum requirement as to capital of State banks in the same locality.' Laws 1935, ch. 498, Code 1951, art. 11, § 40.

The Court below entered a decree, from which the Bank Commissioner and the Attorney General appealed, declaring that the Act of 1935 did not repeal any part of Provident's charter, and therefore Provident has the power to establish branch offices in the counties of Maryland without the approval of the Bank Commissioner. The decree also granted the injunction prayed for.

Appellants contended that the Act of 1935, by authorizing any mutual savings bank to establish branches in the same city, town or village, repealed by implication Provident's power to establish branches outside the city of Baltimore. They relied on the maxim 'expressio unius est exclusio alterius.' But this maxim, meaning that the expression of one thing implies the exclusion of another thing not mentioned, is not a rule of law, but merely an auxiliary rule of statutory construction applied to assist in determining the intention of the Legislature where such intention is not manifest from the language used. It should be used with caution, and should never be applied to override the manifest intention of the Legislature or a provision of the Constitution. Illinois Central R. Co. v. Franklin County, 387 Ill. 301, 56 N.E.2d 775; Commerce Trust Co. v. Paulen, 126 Kan. 777, 271 P. 388, 63 A.L.R. 384; State ex rel. Normile v. Cooney, 100 Mont. 391, 47 P.2d 637; Cabell v. City of Cottage Grove, 170 Or. 256, 130 P.2d 1013, 144 A.L.R. 286; Industrial Trust Co. v. Goldman, 59 R.I. 11, 193 A. 852, 112 A.L.R. 1313; United States v. Barnes, 222 U.S. 513, 32 S.Ct. 117, 56 L.Ed. 291; Neuberger v. Commissioner of Internal Revenue, 311 U.S. 83, 61 S.Ct. 97, 101, 85 L.Ed. 58.

In the case before us the conditions do not warrant the application of this maxim. We find it imperative to apply here the established rule of construction that repeals by implication are never favored by the courts, and the presumption is always against an intention of the Legislature to repeal or modify a pre-existing statute beyond the express terms or immediate scope of a later statute. The Court should not hold that there has been a repeal by implication unless there is some express reference to the previous statute, or there is a manifest inconsistency in the two statutes or their provisions are so repugnant that they cannot stand together. Thomas v. State, 173 Md. 676, 681, 197 A. 296; State v. Clifton 177 Md. 572, 574, 10 A.2d 703; Buchholtz v. Hill, 178 Md. 280, 288, 13 A.2d 348; Lewis v. Gsell, 183 Md. 123, 128, 36 A.2d 702; Pressman v. Elgin, 187 Md. 446, 450, 50 A.2d 560, 169 A.L.R. 646.

In applying this rule in Garitee v. Mayor and City Council of Baltimore, 53 Md. 422, 435, 436, Judge Alvey made the following emphatic comment: 'If the subsequent Act can be made, by any reasonable construction or intendment, to stand with the previous legislation, that construction will always be adopted. This is a canon of construction which is as well established as any principle of law. * * * Here...