Prince George's County v. McBride

• Decision Date: 20 October 1971
• Docket Number: No. 11,11
• Citation: 263 Md. 235,282 A.2d 486
• Parties: PRINCE GEORGE'S COUNTY, Maryland, et al. v. Joseph F. McBRIDE, etc.
• Court: Maryland Court of Appeals

Page 235

263 Md. 235

282 A.2d 486

PRINCE GEORGE'S COUNTY, Maryland, et al. v. Joseph F. McBRIDE, etc.

No. 11.

Court of Appeals of Maryland.

Oct. 20, 1971.

Harry L. Durity, Deputy County Atty., Upper Marlboro (Walter H. Maloney, Jr., County Atty., and James B. Berry, Associate County Atty., Upper Marlboro, on the brief), for appellants.

Joseph F. McBride, Lanham (Robert S. Hoyert, Robert A. Diemer, Bill L. Yoho, Roy W. Hooten and Hoyert, Diemer, Yoho, Hooten & McBride, Lanham, on the brief), for appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

Legislative intent has often been the subject of debate and conjecture and here we are presented with the task of elucidating the Maryland Legislature's purpose in passing two acts which affect zoning regulations in Prince George's and Montgomery Counties. This case originated in the Circuit Court for Prince George's County where the court (Taylor, J.) was asked to decide whether two laws, passed within five days of each other at the same legislative session, and becoming effective on the same date, were compatible; or whether one repealed the other. The two acts, Chapter 278 and Chapter 711 of the 1969 Laws of Maryland, were both intended as amendments to § 59-83 of the existing Code of Public Local Laws of Prince George's County (1963 ed., and 1967 Supplement, being Article 17 of the Code of Public Local Laws of Maryland). ¹ Chapter 278 was passed by the General Assembly on March 19, 1969, signed by the Governor on April 23, to take effect July 1 of [282 A.2d 488] that year. It deals exclusively with subsection (d) of § 59-83, and its stated purpose is to provide that:

'in both Montgomery and Prince George's Counties there must be a two-thirds majority vote of the District Council to turn down the recommendation of a municipality concerning a zoning amendment within its corporate limits.' (Emphasis added.)

Prior to this act, only Montgomery County had such a provision.

Chapter 711 was passed March 24, 1969, approved by the Governor May 14, also to become effective July 1, 1969. This act amended many sections, including § 59-83 in which it made extensive changes in subsections (a) and (b) and deleted (c) and (f) completely. Apparently its only intended effect on §§ 59-83(d) and (e) was to reletter them (C) and (D) respectively. However, when subsection (d) was relettered to (C), the old language of the 1967 Supplement rather than the new proposed language of Ch. 278 was incorporated in its entirety. In other words, Ch. 711 instead of requiring a two-thirds majority vote in both Prince George's and Montgomery Counties, required such a vote in Montgomery and made no mention of Prince George's County.

The controversy here arose as a result of this discrepancy. The appellant, the Prince George's County Board of County Commissioners, sitting as the District Council, denied a request by Joseph F. McBride, agent for the owners, to rezone four lots located in the incorporated City of Bowie, from a C-1 to a C-2 zone. A three-two majority of the Council voted to grant the application. However, in announcing its final decision they stated: '(f)or want of a two-thirds majority vote, the application was DENIED, by operation of law, in accordance with Chapter 278, Laws of Maryland, 1969.' Following this adverse ruling Mr. McBride pursued two separate courses of action. He first filed an appeal, which is still pending, to the Prince George's County Circuit Court. He also initiated this litigation for declaratory relief under Art. 31A of the Maryland Code (1957, 1971 Repl.Vol.) asking the court to declare Ch. 278 repealed by Ch. 711 and, as a result, uphold the simple majority vote already recorded as having rezoned the property. Judge Taylor decided that Ch. 278 was repealed by the later enactment of Ch. 711, and therefore the property had effectively been rezoned by the majority vote. From that decision this appeal is taken, with the sole issue before us being whether these two statutes are compatible with each other. We conclude they are and reverse the trial court.

Generally there are two ways in which the Legislature abrogates its own laws. This can be accomplished either by repealing such acts expressly or by implication. Cumberland v. Magruder, 34 Md. 381, 386 (1871). As to the first method the appellee does not contend that Ch. 711, by direct reference, expressly repeals Ch. 278. In fact, § 59-83(d) is not even referred to by chapter number. Mr. McBride does contend that the general code reference to § 59-83, in both the title and enacting provisions of Ch. 711, has the effect of expressly repealing Ch. 278 which had earlier become a part of that section. Section 1 of Ch. 711 reads:

'Be it enacted by the General Assembly of Maryland, That subsections (c), (d), (e), (f) and (g) of Section 1(63) of Chapter 667 of the Laws of Maryland, 1967; Section 1(72) of Chapter 582 of the Laws of Maryland, 1967; Section 1(75) of Chapters 307 and 659 of the Laws of Maryland, 1967; and Section 1(78) of Chapters 170 and 247 of the Laws of Maryland, 1967; said Sections being also Sections 70-74, 70-83, 70-86, 70-87, and 70-89 of the Code of Public Local Laws of Montgomery County (1965 Edition, being Article 16 of the Code of Public Local Laws of Maryland), title 'Montgomery County,' subtitle 'Maryland-National Capital Park and Planning Commission,' subheading 'Article III. Maryland-Washington Regional District,' and Sections 59-68, 59-77, 59-80, 59-81 and 59-83 of the Code of Public Local Laws of Prince George's County (1963 Edition and 1967 Supplement, being Article 17 of the Code of Public Local Laws of Maryland), title 'Prince George's County,' subtitle 'Park and Planning Commission,' subheading 'Regional District,' be and they are hereby repealed and re-enacted, with amendments, to read as follows:' (Emphasis added.)

We do agree that this reference to § 59-83 includes all of its subsections, and to that extent an express repeal did occur. However, since the explicit language limits § 59-83 of the Code to the 1963 Edition and its 1967 Supplement, and does not include subsequent amendments, the legislative purpose was to repeal only § 59-83 as it existed in 1967. Chapter 278 was not enacted until 1969 and is therefore not expressly repealed.

Having made this determination we now must decide whether there was repeal by implication. Mr. McBride argues there was and suggests that the 'intermediate amendment rule,' codified as Art. 1, § 17 of the Maryland Code (1957, 1968 Repl.Vol.), when applied to this case supports such a conclusion. Section 17 states:

'If two or more amendments to the same section or subsection of the Code are enacted at the same or different sessions of the General Assembly, and one of them makes no reference to and takes no account of the other or others, the amendments shall be construed together, and each shall be given effect, if possible and with due regard to the wording of their titles. If the amendments are irreconcilable and it is not possible to construe them together, the latest in date of final enactment shall prevail.' (Emphasis added.)

This statute is also expressive of the Maryland case law. Department of Motor Vehicles v. Greyhound, 247 Md. 662, 666-667, 234 A.2d 255 (1967); Md. Indus. Devel. Financing Authority v. Meadow-Croft, 243 Md. 515, 526, 221 A.2d 632 (1966); Veditz v. Athey, 239 Md. 435, 445, 212 A.2d 115 (1965); Hensley v. Bethesda Sheet Metal Co., 230 Md. 556, 188 A.2d 290 (1963). In Hensley Judge Hammond (now Chief Judge) quoting Sutherland, Statutory Construction, § 2035, said for the Court at page 561, 188 A.2d 290, at page 292:

'(W)here a statute has been amended and changed by a later enactment, the reaffirmation of the statute in its original form operates to repeal any inconsistent amendments and modifications which have been engrafted upon the statute since its original enactment.' (Emphasis added.)

Both the code and this statement clearly indicate that if two laws are irreconcilable a repeal by implication occurs, with the latest act prevailing over the earlier one. We agree, of course, that Art. 1, § 17 should be considered; but we disagree with appellee as to its effect on the facts of this case. The real issue is whether Ch. 278, as the intermediate statute, is compatible with Ch. 711. To determine that these two laws are not consistent we would first have to find Chs. 711 and 278 so irreconcilable and repugnant that they simply can not stand together and be executed at the same time. Renz v. Bonfield Holding Co., 223 Md. 34, 45, 161 A.2d 436, 437 (1960); Pressman v. Elgin, 187 Md. 446, 450, 50 A.2d 560, 563 (1947); Adams v. County Com'rs St. Mary's County, 180 Md. 550, 554, 26 A.2d 377, 379 (1942); State v. Clifton, 177 Md. 572, 574, 10 A.2d 703, 704 (1940); Fouke v. Fleming, 13 Md. 392, 402 (1859). However, we conclude that these acts can be read together with total effect being given to all their provisions. Chapter 278 made it necessary in both Prince George's and Montgomery Counties to obtain a two-thirds voting majority of the District Council before the recommendations of a municipality could be contravened. Chapter 711 states in part: 'that in, Montgomery County a two-thirds majority of all members of the district council shall be required before said council may change the zoning classification.' The difference between these laws is that Ch. 711 does not mention Prince George's County in its provisions. That chapter does not say it applies only to Montgomery County; it simply does not enumerate the voting requirements in Prince George's County. These statutes essentially relate to the same overall subject matter and it is quite logical to conclude that Chs....