McDonagh v. Matthews-Howard Co.

Adkins, J., delivered the opinion of the Court. The sole question presented by this appeal is: Was section 117 of article 9 of the Code of Public Local Laws of 1888, title “Charles County,” sub-title “Mechanics’ Liens,” repealed ²⁶⁵ by implication by chapter 172 of the Acts of 1890, in so far as said section related to mechanics’ liens on buildings. The section of the Code of Public Local Laws referred to is as follows: “The provisions of the Code of Public General Laws relating to mechanics’ liens shall not apply to Charles County.” And the Acts of 1890, chapter 172, provides: “That section 43 of article 63 of the Code of Public General Laws, entitled ‘Mechanics’ Liens,’ be and the same is hereby repealed.” The question was raised in the trial court by demurrer to the bill of complaint for the enforcement of a mechanics’ lien which had been filed by the plaintiff against certain property of the defendant. It was alleged in the demurrer that the provisions of the general mechanics’ lien law of Maryland did not apply to Charles County, there being an existing and unrepealed public local law for Charles County which expressly so provided.

The chancellor overruled the demurrer. From the decree overruling that demurrer this appeal was taken. The repealed section excluded from the operation of the preceding 42 sections seven counties, among which was Charles County. These 42 sections provided for the creation and enforcement of mechanics’ liens against buildings only.

There were a number of sections following section 43, relating to boat liens, -which applied to the entire state. By various acts of the Legislature section 43 was amended omitting, from time to time, one or more counties which were originally mentioned in section 43, until at the time of the adoption of the Code of 1888 Charles County was the only county excluded from the operation of the mechanics’ lien law applicable to buildings; and this state of the general law was recognized and embodied in section 43 of article 63 of the Code of Public General Laws of 1888. When it came to codifying the Public Local Laws of the State, in the same year, Mr. Poe, in dealing with Charles County, inserted section 117 of article 9. It was not a codification of any preexisting statute, as no such statute appears ever to have been passed.

But the section was included in the local code, it ²⁶⁶ must be assumed, because Mr. Poe understood that to be tbe law then in force applicable to Charles County by reason of tbe exclusion of that county by section 43 of article 63 of tbe General Code, overlooking tbe fact that said county bad not been excluded from tbe part of tbe general law -applicable to boat liens. There can be no other explanation of this discrepancy except on tbe theory that the codifier was assuming to legislate, which we all know was not so. Tbe wonder is that in such an undertaking- so few inaccuracies occurred. It is true that by chapter 14 of tbe Acts of 1888 the Code of Public General Laws and tbe Code of Public Local Laws, as codified by Mr. Poe, were approved, adopted, and declared to be the law of this state “in lieu of and a substitute for all Public General Laws, and all Public Local Laws of this State on the first Wednesday of January in the year 1888,” and that by said adoptions section 111 of article 9 of the Code of Public Local Laws became the law of Charles County.

It is also true that said section differs in its effect from section 43 of article 63 of tbe General Code, in that the former excluded Charles County from tbe operation of all the general mechanic’s lien law, whereas the latter excluded said county from SO' much only of the general law as related to buildings. It follows, therefore, that chapter 112 of the Acts of 1890, in repealing section 43 of article 63 of the General Code, did not repeal section 111 of article 9 of the Local Code, in so far as the latter excluded said county from the operation of tbe sections of the general law relating to> boat liens. But it does not follow, necessarily, that the repealing act does not by implication apply to so much of the local law as is identical in effect with the section of tbe general law expressly repealed. If tbe sections in the two codes, were identical in effect, there could be no reasonable doubt that they would fall together, because to conclude otherwise would be to attribute to tbe Legislature in passing the repealing act ah intention to* perform an absolutely nugatory act