Maguire v. State

• Decision Date: 30 March 1949
• Docket Number: 109.
• Citation: 65 A.2d 299,192 Md. 615
• Parties: MAGUIRE v. STATE et al.
• Court: Maryland Court of Appeals

65 A.2d 299

192 Md. 615

MAGUIRE v. STATE et al.

No. 109.

Court of Appeals of Maryland

March 30, 1949

Appeal from Superior Court of Baltimore City; Joseph Sherbow, Judge.

Suit by James P. Maguire against the State of Maryland and others for a declaratory judgment respecting suspension of a license. From the judgment, plaintiff appeals.

Judgment reversed and new trial awarded.

David P. Gordon, of Baltimore (Herbert Levy and Levy Byrnes & Gordon, all of Baltimore, on the brief), for appellant.

Joseph D. Buscher, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

This is an appeal from a judgment for defendants on demurrer to the declaration in a suit for a declaratory judgment. The question is whether plaintiff, licensed as a plumber under sections 318-324 of Article 43 of the Code of 1939 , and section 290 of Article 56, is also required to obtain a license as a 'construction firm or company' under section 291 (1947 Supplement). From a decision that he is required to do he appeals.

Licenses are required for the purpose of regulation under Article 43 and for revenue under sections 290 and 291 of Article 56. For present purposes, therefore, sections 318-324 of Article 43 are not relevant. The question is whether a plumber is required to pay one license fee for revenue under section 290 of Article 56 or two under sections 290 and 291.

Chapter 704 of the Acts of 1916 is entitled 'An Act * * * to add twenty-five additional sections to * * * Article 56 of the Annotated Code of Maryland, to follow Section 163, and to be known as Sections 164 [to and including] 188, said new sections providing for the licensing of Detective Agencies and Agents, Moving Picture Shows and Carnivals, Garages, Cash Registers and Adding Machines, Typewriting Machines Commercial, Mercantile and Mutual Protective Agencies Intelligence Offices and Employment Agencies, Laundries, Junk Dealers, Trading Stamp Companies, Wholesale Dealers in Farm Machinery, Soda Water Fountains, Livery Stables, Bowling Saloona, Storage Warehouses, Check Rooms, Cleaning, Dyeing and Pressing Companies, Shoe-Shining Parlors and Hat-Cleaning Establishments, Restaurants or Eating Places, Plumbers and Gas Fitters, Construction Firms or Companies, Non-resident Wholesale Tobacco Dealers and Non-resident Wholesale Liquor Dealers.' [Italics supplied]. Sections 183 and 184 became sections 290 and 291 in the Code of 1939. The Maryland Tax Revision Commission of 1939 recommended that sections 290 and 291 and most of the other license requirements of the Act of 1916 be repealed, and remarked that section 291 was probably an unconstitutional discrimination between residents and non-residents. Report of Commission, pp. 92-98-99-107. Cf. State v. Case, 132 Md. 269, 272, 103 A. 569; Ward v. Maryland, 12 Wall. 418, 20 L.Ed. 449. The recommendation to repeal sections 290 and 291 was not followed, but in 1941, c. 53, section 291 was amended to remove the discrimination. For present purposes the 1941 amendment is immaterial.

Sections 290 and 291 provide:

'Plumbers and Gas Fitters

'290. Each person, firm or corporation, not holding a trader's license, operating or conducting the business of a plumber or gas fitter, shall before doing so, take out a license therefor, and shall pay an annual license fee for each place of business so operated, graduated as follows:

'In cities or towns of less than 5,000 inhabitants, for each place of business $5.00

'In cities or towns of more than 5,000 inhabitants, and less than 10,000 inhabitants, for each place of business $10.00

'In cities or towns of more than 10,000 inhabitants, for each place of business $15.00

'Construction Firms or Companies

'291. Any person, firm or corporation accepting orders or contracts for doing any work on or in any building or structure, requiring the use of paint, stone, brick, mortar, wood, cement, structural iron or steel, sheet-iron, galvanized iron, metallic piping, tin, lead, electric wiring or other metal, or any other building material, or who shall accept contracts to do any paving or curbing on sidewalks or streets, public or private property, using asphalt, brick, stone, cement, wood or any composition, or who shall accept an order for or contract to excavate earth, rock, or other material for foundations or any other purpose, or who shall accept an order or contract to construct any sewer of stone, brick, terra-cotta, or other material, shall be deemed to be carrying on the business of construction.

'Each person, firm or corporation, who shall carry on the business of construction as mentioned in this section, shall before doing so, first take out a license therefor and pay an annual license fee of $15.00; provided, however, this section shall not apply to persons, firms or corporations doing a construction business the gross amount of whose orders accepted and executed does not exceed Five Thousand Dollars ($5,000) per annum.' [The captions are part of the original Act of 1916.]

In the opinion of the lower court the case is stated thus:

'Are plumbers and gas fitters required to take out three separate annual licenses to conduct their businesses? That is the question posed by this suit for a declaratory judgment.

'The plaintiff, a master plumber in Baltimore City since 1930, holds a master plumber's certificate under sections 318 to 325 [324] to Article 43 of the Code. These provisions are in exercise of the police power of the State to regulate trades and occupations in the public welfare. He pays one license fee under this law.

'He pays a second annual license fee under section 290 of Article 56, subtitle 'Plumbers and Gas Fitters,' which is a revenue measure requiring plumbers and gas fitters to take out either a trader's or plumber's license. The fee is regulated according to the size of town in which the business is conducted. The plaintiff pays $15.00 annually to do business in Baltimore City.

'There is a third license fee prescribed by section 291 of Article 56, and it is this provision of the law that is the subject of this litigation. The pertinent provisions are; 'Any person * * * accepting orders or contracts for doing any work on or in any building or structure, requiring the use of * * * galvanized iron, metallic piping * * * or any other building material * * * shall be deemed to be carrying on the business of construction.'

'The annual fee under this section is $15.00, without regard to the size of the city or town in which the licensee does business, unless the gross annual business is less than $5,000.00. The sub-title of this section is 'Construction Firms or Companies', and it was first enacted in 1916 as section 184 of Chapter 704. It followed immediately after the section sub-titled 'Plumbers and Gas Fitters' when originally enacted.

'From the time this law went on the statute books in 1916 until recently no effort was ever made by any State Comptroller or other official to apply its provisions to plumbers and gas fitters and require them to take out this third license. The present State Comptroller has been engaged in a campaign to enforce the various license statutes and other revenue producing laws. He was advised by the Attorney-General that this section of the law was applicable to the plaintiff and others similarly situated. Demand was made for the license fees under section for the years 1944 to 1947, inclusive. The plaintiff refused to pay and filed this suit.

'The Comptroller contends that the language of the law is plain, clear and free from any ambiguity; that plumbers came within its plain provisions, as they are naturally large users of metallic piping and galvanized iron. While the plaintiff admits he may be literally covered by the words used in the law, he maintains it never was the intention of the Legislature to tax him under two separate consecutive sections of the law, and that the provisions of section 291 apply to a business distinct in character from that described in section 290; further, that since the license fee has never been collected from plumbers over all the years since its enactment, it should not now be applied to this business under the doctrine of continuous administrative construction.

'The rules of construction and interpretation of statutes have often been stated by our Court of Appeals. The meaning and intent must be sought in the language of the law itself. Courts cannot surmise legislative intent contrary to the letter of the statute. The interpretation must be according to the ordinary and natural import of the words used without resort to subtle or forced meanings to extend, limit or alter the operation of the enactment. Words should not be inserted or omitted to ascertain legislative intent where the language used is clear.'

After thus stating the case and the rules of construction, the opinion construes sections 290 and 291: 'Applying these principles to sections 290 and 291, it is apparent that the words used are plain and free from ambiguity. The words employed are in every-day use and their meaning is obvious. If the Legislature meant the two sections to be mutually exclusive it did not say so. It could have done so easily. If the intention was to exclude plumbers and gas fitters from Section 291 this could have been done by simply inserting the words 'excluding plumbers and gas fitters.' These words are not in the law and the courts may not add language to give a new meaning. 'We cannot assume authority to read into the Act what the Legislature apparently deliberately left out. Judicial construction should only be resorted to when an ambiguity exists.' Howard Contracting Co. v. Yeager, ...