Montel v. Consolidation Coal Co.

• Decision Date: 07 January 1874
• Citation: 39 Md. 164
• Parties: JAMES E. MONTEL and EDWIN E. MONTEL, trading as MONTEL & CO., v. THE CONSOLIDATION COAL COMPANY.
• Court: Maryland Court of Appeals

39 Md. 164

JAMES E. MONTEL and EDWIN E. MONTEL, trading as MONTEL & CO., v. THE CONSOLIDATION COAL COMPANY.

Court of Appeals of Maryland

January 7, 1874

APPEAL from the Circuit Court for Allegany County, in Equity.

This was a petition filed by the appellants, charging that the appellee, under the provisions of certain mining charters to which it had succeeded, was bound to carry over its railroads, at certain rates, such coal or other merchandize as should be offered by other individuals or companies who might construct connecting roads; that the Spruce Hill Coal Company had, for the conveyance of coal from its mines, built such a road connecting with a branch road of the appellee and for four or five years had shipped coal over the same which the appellee had received and transported; that the appellants became purchasers at sheriff's sale of all estates, rights and privileges of the Spruce Hill Company and that thereafter the appellee had refused, on their request with offer to pay the legal charges, to furnish transportation for their coal, but had abandoned and taken up the said branch road: they prayed the Court to pass an order requiring the appellee to restore the said road and to furnish transportation for their coal.

On exceptions taken by the appellee to the jurisdiction, the Court below held the Act of 1864, ch. 371, under which the proceeding was instituted, to be still in force, but afterwards dismissed the petition on the pleadings and evidence in the case.

The cause was argued before BARTOL, C.J., STEWART, MILLER and ALVEY, J.

[The arguments of Counsel, except on the question of the repeal of the Act of 1864, ch. 371, are omitted. REP.]

William Walsh and J. H. Gordon for the appellants.

It is contended that the Act of 1864 was repealed by the Act of 1868, ch. 471. The preamble of the latter states its object to be to repeal, but there is no repealing clause in the Act, therefore no express repeal. And as there is no repugnancy in any of the provisions of the Act of 1864 to that of 1868, there can be no repeal by implication. Sedgwick on Const. & Stat. Law, 124-127; 9 Pick., 87; Dugan vs. Gittings, 3 G., 154; Cromwell vs. State, 12 G. & J., 257; Daviess vs. Fairbairn, 3 How., 636; Haynes vs. Jenks, 2 Pick., 176; Vinton vs. Welsh, 9 Pick., 87.

The necessary implication to repeal must be as certain as an express repeal.

John P. Poe, for the appellee.

The Act of 1864, ch. 371, is not in force. It was originally passed as an additional section to Article 26 of the Code of Public General Laws, and became section 127 of that Article. Code, Supp., 1861--1867, p. 59.

The commissioners appointed to revise the whole law relating to corporations, submitted their report with their draft of a proposed new Article, as a substitute for the then existing Article, including of course section 127, (Act of 1864, ch., 371.)

This proposed draft was adopted by the Legislature and became, accordingly, the new Article, and, operated as a repeal of the then existing Article in all its parts.

There is in the body of the Act no repealing clause, but this was probably omitted because it was supposed that the reference in the title was sufficient.

It is manifest that the Legislature never intended that there should be two Articles 26, nor two sections 127, as must necessarily be the result if the old Article in its entirety be not held to be repealed by the new. The subsequent law does fully embrace the whole subject of the prior law under circumstances which preclude the idea that both were intended to stand together. The title is now a necessary part of every law, and so vital that if it erroneously describe the subject matter of the Act, the whole law becomes inoperative; therefore it would seem perfectly obvious that the Legislature intended the new Act to be a repeal of and substitute in toto for the old Article. If section 127, (Act of 1864, ch. 371,) in the old Article is not repealed, then all the other sections in that same Article which are not plainly repugnant to the new Article, are also not repealed, and thus we have in lieu of one complete system, two distinct systems and two distinct sets of sections in the same Article of the Code. This consideration, of itself, seems sufficient to show an obvious and irreconcilable repugnancy. If the title of the new Act of 1868 is to be considered at all, there can hardly be any room for the argument that the Act of 1864 is not repealed. That it must be considered, is clear.

"It is laid down in some of the books, that in construing a statute, the title (being no part of it) is not to be regarded, but we have high authority in this country for a different rule of construction--the opinions of the Judges of the Supreme Court as expressed in the United States vs. Fisher, 2 Cranch, 358;" Canal Co. vs Railroad Co., 4 G. & J., 90-1. "The title explains the whole scope and object of the law." Ibid. 168.

This was the law before the constitutional provision was declared making the title an indispensable part of every law A fortiori, therefore must the title be attentively examined now. Davis vs. State, 7 Md., 151; Keller vs. State, 11 Md., 525; Parkinson vs. State, 14 Md., 184; Hardesty vs. Taft, 23 Md., 525; Mayor &c., of Annapolis vs. State, 30 Md., 118; Albert vs. White, 33 Md., 297; Sedgwick on Const. and Stat. Law, 50, 126, 567.

The latter Act revises the whole subject and enacts an entirely new law--thus indicating a clear intent to repeal the former. Dugan vs. Gittings, 3 G., 154; Bowen vs. Lease, 5 Hill, 225; Governor vs. Stout, 22 Wis., 234; King vs. Davis, Leach, 556; Rex vs. Cator, 4 Burr., 2026; Bartlet vs. King, Exr., 12 Mass., 545; re-affirmed in Nichols vs. Squire, 5 Pick, 168; Conley vs. Calhoun Co., 2 West Va., 420.

"When a statute is revised, some parts being omitted, the parts omitted are to be considered as annulled." Pingree vs. Snell, 42 Maine, 53; Ellis vs. Page, 1 Pick., 43; State vs. Conkling, 19 Cal., 501; Farr vs. Brackett, 30 Vt., 344; Giddings vs. Cox, 31 Vt., 607; Wakefield vs. Phelps, 37 N. H., 295; Mayor, &c. vs. Magruder, 34 Md., 386; Plank Road Co. vs. Allen, 16 Barb., 18; Const., Art. 3, Sec. 29; Mayor of Frederick vs. Groshon, 30 Md., 436; Gorham vs. Luckett, 6 B. Monroe, 154; Pulaski Co. vs. Downer, 5 English, 588; Rogers vs. Watrous, 8 Texas, 62; Pierpont vs. Crouch, 10 Cal., 316.

MILLER J., delivered the opinion of the Court.

The proceeding in this case was instituted in March, 1873, by the appellants, against the appellee under the Act of 1864, ch. 371, and the first question to be decided is whether that Act is repealed by the general corporation law of 1868, ch. 471. The Act of 1864, in terms adds an additional section to Article 26 of the Code of Public General Laws relating to corporations, and the added section provides in substance, that if any person shall be aggrieved by any company incorporated by the laws of this State, to transport persons or property for hire, "by reason of anything done or omitted to be done by the said company in violation or contravention of its duty in regard to the transportation or carriage of property or persons," it shall be lawful for such person to apply by petition, "in a summary way," to the Circuit Court for the County where the company has an office for the transaction of its business, for relief against the alleged grievance, and such Court shall thereupon appoint a short day for hearing the petition, of which the company shall have notice, and on the hearing, or in case the company shall fail to appear, and show cause against the application, the Court shall and may on examination of the petition produced in support thereof, "pass such order for relieving the petitioner, or otherwise as to justice shall appertain," and shall have full power to enforce obedience to such "order by writ of injunction or attachment or other process which would be applicable in the enforcement of the said order, in the event that the same had been passed by the said Court in the exercise of its general equity jurisdiction."

The law of 1868, ch. 471, though professing by its title to be an Act to repeal Article 26, of the Code of Public General Laws, and to enact a substitute therefor, and to repeal other provisions of the Code, relating to suits, process and proceedings against corporations, contains no express repealing clause to that effect, and an examination of its numerous sections has convinced us, there is no such plain and unavoidable inconsistency or repugnancy in any of its provisions, to those of the particular section added to the Code by this Act of 1864, as would work a repeal thereof by implication, as the rule on that subject is generally understood and applied. The general rule is well settled that several successive statutes on the same subject are to be construed together, and a subsequent law will not repeal a former one, if by construction they can be made to stand together. If, therefore, the Act of 1868, presented an ordinary case for the application of the rule of repeal by implication of a former statute in pari materia, it would not have that effect. But this law belongs to a class of legislation not unfrequent in modern times, where it becomes necessary to revise and amend all existing laws upon some important matter, and establish in lieu thereof, a new and general law or Code, embracing a complete scheme of legislation on that particular subject. The Act of 1868, is emphatically a law of this character. The necessity for such a law upon the subject of corporations, had become so obvious and important, that by the Constitution, (Art. 3, sec. 48,) it was made the duty of the Governor, as soon as practicable after its adoption, to appoint three Commissioners learned in...