Mayor of Annapolis v. State

RouiNSON, J., delivered the opinion of the Court. The view we take of this ease, makes it unnecessary to decide whether the traversers, a Municipal Corporation, are liable to indictment for obstructing or closing South street, alleged to be a public highway, in the city of Annapolis. If this be conceded, we are clearly of opinion, that their special plea, setting forth the acts of permission in pursuance of which the obstruction was erected, in connection with the provisions of the curing Act of 1867, ch. 240, constitute a bar to the indictment. The general rule in the construction of this and all other statutes, is to ascertain the intention of the Legislature, and to this end, each and every provision of the law must be taken and compared together.

Now although, the first section of the Act of 1867, in conferring power upon the corporation to open and discontinue new streets, provides, that it shall not extend to streets already opened; this limitation cannot be held to control the second section, which declares, that “all acts, deeds or ordinances of the Mayor, Recorder or Aldermen of said city, heretofore made, done, executed or passed in reference to the closing or discontinuance of any street, lane or alley, in said city, be and the same are hereby declared and made oj>erative and valid, in the same manner, as if the said Mayor, Recorder or Aldermen, had free power and authority to do the same, at the respective times, when the same were severally done.” Such a construction, -would defeat the plain, explicit and unambiguous provisions of the law. But it is said, that the traversers are not charged with the closing or discontinuance of South street, and they cannot, therefore, rely upon this Act in response to the indictment. ¹¹⁸ This objection is more technical than sonnd. The indictment does charge them with encroaching upon, obstructing and “stopping up.” said street by means of a fence, and it would be difficult to distinguish between these acts and the actual closing or discontinuance of the street. But be this as it may, the question is not whether they are so charged, but whether the obstructions erected by the traversers, and for which they are indicted, amount in fact to a closing or discontinuance of the street ?

And upon this point, we think there cannot be a doubt. In their special plea, it is averred, that the fence across the street was erected by their permission ; that it had remained there for a period of over thirty years, and that the bed of the street had been sold and conveyed by them to the purchaser. We are at a loss to imagine a more effectual closing or discontinuance of a street, than thus averred in this plea. Moreover, this street was obstructed and this indictment pending, when the Act of 1867 was passed.

It does not appear from the record, that any other street had been closed or discontinued or obstructed, and if the second section was not intended to embrace South street, “ what acts, deeds, ordinances” of the traversers “in the closing or discontinuance of any street, lane or alley, in said city,” was it the purpose of the Legislature