Smyrk v. Sharp

Boyd, J., delivered the opinion of the Court. By the Act of 1892,'chapter 138, the Mayor and City Council of Baltimore were authorized to issue the stock of the city to an amount not exceeding six million dollars, for ¹⁰¹ the. purpose of procuring funds with which to build a court house, to open, widen, repair and pave the streets and make other permanent improvements. An ordinance was passed by which, among other provisions, one million six hundred thousand dollars were set apart “for paying the cost of repaving with improved pavements such streets in Baltimore City, the repaving of which shall be required by ordinance of the Mayor and City Council of Baltimore.” It was duly submitted to and approved by the voters of the city. Beginning in February, 1893, the Mayor and City Council of Baltimore passed a number of ordinances appropriating various amounts and making provision for repaving different streets named in them, so that by the time the work commenced — May xst, 1893 — the entire sum authorized for this purpose had been appropriated.

They continued, however, after that time to pass ordinances providing for the repaving of other streets with the money thus set apart, and by their provisions sixteen or eighteen streets are yet to be paved, which will cost six hundred and fifty thousand dollars, whilst there only remain one hundred and thirty-two thousand dollars available for the purpose. With this condition of affairs the present appellees, Messrs. Sharp, Francke and Danaker, owners of certain property on Saratoga street; Messrs. Wright, Flaggs and Meikle, owners of parcels of ground on Patterson avenue, and Benjamin B. Porter, the owner of a lot on McCulloh street, obtained an injunction against the Mayor and City Council of Baltimore, Ferdinand C. Latrobe, Mayor, and Alfred E. Smyrk, City Commissioner, to prohibit them from proceeding under an ordinance passed Feby. 27, 1893, to repave certain portions of Franklin street until the legal effect and priorities of certain other ordinances providing for repaving Saratoga and McCulloh streets and Patterson avenue were determined.

That case was before this Court at its last April term. The important questions raised were-, whether the ordinances relied on by the plaintiffs, as the latest declaration of the legislative will, repealed the Franklin ¹⁰² street and other prior ordinances, and whether the Mayor (or City Commissioner) was vested with the discretion of selecting the streets to be paved with the unexpended balance in hand. There were also some technical and other points raised, but they need not now be mentioned. When the April term of this Court was about to adjourn we said: “ We hold that the Mayor of Baltimore City has no authority to select which of the sixteen streets mentioned in the several ordinances referred to in the bill shall be first paved, or to designate the order in which they shall be paved.

We further hold that neither the Circuit Court nor this Court has such authority. But inasmuch as confessedly there are not sufficient funds in the city treasury to pay for all the work, it is the duty of the City Council to declare how, and in what order, the money available for this paving shall be expended. On the face of the bill, therefore, the injunction ought to be sustained until the City Council shall determine in what order the streets shall be paved. An opinion will hereafter be filed in behalf of this Court,” and the order granting the injunction was affirmed.

Before our conclusions in that case had been announced, as above stated, the order from which this appeal was taken was passed directing the issue of a writ of mandamus at the instance of.these appellees to the City Commissioner, commanding him to comply with the terms of the ordinance passed to repave Saratoga street, from Fremont street to Carrollton avenue, or so much thereof as the surplus ascertained to have been derived from ordinance No. 42, approved March 16, 1893, and No. 102, approved May 1st, 1893, shall be found by him to cover the cost of, etc. The opinion not yet having been filed, further argument was heard in behalf of the appellees in this case, but the main points were practically the same as those previously urged. For the purposes of this opinion it will be conceded that the Saratoga street ordinance took effect in the fall of 1894, and it was proven that there is no unexecuted ordinance, ¹⁰³ appropriating any part of the million six hundred thousand dollars, later in date than it. It is contended on the part of the appellees that the ordinance to repave Saratoga street must prevail over unexecuted ordinances passed prior to it, as it is the latest declaration of the legislative will. The general principle relied on by them that “ where there are two Acts on the same subject the rule is to give effect to both if possible, but if the two are repugnant in any of their provisions, the latter Act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first” is too well established to admit of question.

But is it applicable to a case of this character ? If the Constitution of Maryland prohibited the Legislature from appropriating more than some fixed sum, say one hundred thousand dollars per annum, to reformatory and other institutions, and the Legislature passed Acts appropriating the whole amount to five institutions, and then subsequently appropriated ten thousand dollars to another, could it be said that the latter pro tanto repealed the former ? Might it not more properly be declared a nullity, on the