State v. Baltimore & O.R. Co.

Decision Date20 April 1910
Citation77 A. 433,113 Md. 179
PartiesSTATE, Use of COUNTY COM'RS OF PRINCE GEORGE'S COUNTY, v. BALTIMORE & O. R. CO.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Prince George's County.

Action by the State of Maryland, to the use of the County Commissioners of Prince George's County, against the Baltimore & Ohio Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BURKE, SCHMUCKER, and THOMAS, JJ.

J. Enos Ray, Jr., for appellant.

Jas. A C. Bond, for appellee.

THOMAS J.

This suit was brought in the name of the state of Maryland, to the use of the county commissioners of Prince George's county, against the Baltimore & Ohio Railroad Company, to recover fines to the amount of $850, for the failure of the defendant to comply with the provisions of Acts 1908, c. 398 requiring the company to erect and maintain safety gates and to keep flagmen at certain public road crossings in said county.

The act is as follows:

"Section 1. Be it enacted, that the Baltimore and Ohio Railroad be and it is hereby required within thirty days after the passage of this act, to erect and maintain safety gates at 'Riversdale' and 'Mistletoe Springs' in Prince George's county, where the county roads of said county cross the tracks of said railroad company at said places, and to cause a flagman to be stationed at each of said crossings between the hours of 6 o'clock a. m. and 9 o'clock p. m. to operate said gates and to warn persons using said crossings of the approach of trains upon said railroad.

"Sec 2. And be it enacted, that the said Baltimore and Ohio Railroad Company shall be liable to pay a fine of twenty-five dollars for each and every day it shall fail to comply to the provisions of the preceding section, said fine to be reserved [doubtless meaning recovered] in the name of the state of Maryland to the use of the county commissioners of Prince George's county, in the circuit court of the said county or before a justice of the peace thereof, when the amount of said fines does not exceed the jurisdiction of the justice of the peace, and when collected to be paid in the road fund of said county, and in any such proceedings service upon a ticket agent of said company shall be sufficient service upon said railroad company."

Section 3 provides that the act shall take effect from the date of its passage. It was approved April 6, 1908, and the declaration, which sets out the provisions of the act, alleges that the defendant neglected and refused to erect and maintain safety gates and to cause flagmen to be stationed at said crossings for 34 days, from the 6th day of May, 1908, to the time of the bringing of the suit, and that, by reason thereof, the defendant became and is indebted to the plaintiff in the sum of $850. The defendant demurred to the declaration, the court below sustained the demurrer and gave judgment for the defendant, and from that judgment the plaintiff has appealed.

The appellee contends that the act is unconstitutional, first, because of the omission from the enacting clause of the words "by the General Assembly of Maryland"; and, secondly, because it is a special law for a case for which provision is made by an existing general law.

1. Section 29 of article 3 of the Constitution of Maryland directs that "the style of all laws of this state shall be, 'Be it enacted by the General Assembly of Maryland."' The effect of this provision of the Constitution was carefully considered in the case of McPherson v. Leonard, 29 Md. 377, where it was held to be directory, and not mandatory. In that case, as in this, the words "by the General Assembly of Maryland" were omitted from the act, and Judge Brent, speaking for the majority of the court, said: "We have very carefully considered and anxiously weighed and examined the question now before us, and cannot regard the provision requiring the words, 'by the General Assembly of Maryland,' to be in the enactment of a law, as otherwise than directory to the Legislature to secure, as we have before said, uniformity in the laws. They certainly are not of the essence of the law. They furnish no aid in its construction, and its provisions are as clear and intelligible without them, as they would be with them." He further said: "Being satisfied that the words 'by the General Assembly of Maryland' are not of the essence and substance of a law, but their use directory only to the Legislature, we cannot, because of their omission from the enactment, declare the law in question unconstitutional and void."

It is urged, however, by learned counsel for the appellee that McPherson v. Leonard was overruled in Archer et al. v State, 74 Md. 448, 22 A. 8, 28 Am. St. Rep. 261, but in the very recent case of Postal Tel. Co. v. State, 110 Md. 608, 73 A. 679, which was decided after the ruling of the learned court below on the demurrer in this case, and where the court was considering the same provision of the Constitution, we held that McPherson v. Leonard "had not been overruled, modified or questioned." Chief Judge Boyd, referring to Archer's Case, said: "The expression used by Judge Miller in a case which in no wise involved the construction of this particular clause cannot be held to have overruled McPherson v. Leonard Judge Brent, in delivering the opinion in that case, referred to the fact that a number of laws had been found upon the statute books of the state from 1777 to 1864, involving important rights, and the brief of the counsel for McPherson cited a number from which the words 'by the General Assembly of Maryland' had been omitted, and during the 40 years since that decision there have doubtless been others. It might therefore do great injustice to those who relied on, as they had a right to rely on, a decision of this court, to hold that it had been overruled by a case which in no manner involved the clause in question, and we cannot so hold." It is true in the Postal Tel. Co. Case, the language of the act (Acts 1908, c. 280) was "Be it enacted by the people of the State of Maryland, represented in the General Assembly," and the court said, "The people of the state of Maryland are represented in the General Assembly"; but we distinctly adhered to the decision in McPherson's Case, and held that the provision of the Constitution here relied on is not mandatory, and that a failure to follow the form prescribed does not render an act unconstitutional and void. So, whatever may be the conclusions reached by other courts in construing similar provisions, it...

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