State v. Davis

Irving, J., delivered the opinion of the Court. The State of Maryland sued James A. Davis, clerk of the Circuit Court for Cecil County, upon his bond as clerk, and the breach alleged is the failure to pay over to the State one-half of the marriage license fees received by him since the first of July, 1886. The clerk claims that under the Act of 1886, chapter 49T, no part of the license money goes to the State, hut that it all goes to the clerk for his services in issuing the license and performing the duties required of him by the law. By chapter 261, of the Acts of 1886, section seven of Art. 60 of the Code relating to marriages was repealed, amended and re-enacted, so. that marriage licenses were reduced from four dollars and fifty cents, to .one dollar, fifty cents of which was to he retained by the clerk for issuing the same, and the remaining fifty cents thereof was to he turned into the State treasury.

By chapter 49T of the same session of the Legislature, (1886,) sections four, five, six, seven and eight, of Article 60, of the Code, were repealed, amended and re-enacted in different forms, and four additional sections were added. These Acts, although passed on different days, as their respective numbers very clearly indicate, were approved by the Governor on the same day, and the question presented is whether they are so irreconcilably inconsistent that they cannot stand together, and the first in date must yield to the later Act of the Legislature. Careful comparison of the two Acts shows their provisions to he so inconsistent that they cannot he reconciled, and can not both he the law. The latest expression ²⁴⁰ of .the legislative will is found in chapter 497; and as chapter 261 and it, were hoth apjcroved by the Governor the same day, the presumption is that they were approved by him in numerical order, and therefore chapter 497, having been last approved, became the finally operative statute.

That is the rule which was applied in Strauss vs. Heiss, 48 Md., 292 . In that case chapter 203 and chapter 325, of the Acts of the Legislature in 1872, were hoth approved by the Governor on the same day. Both Acts repealed the same section of Article 26 of the Code, as amended by the Corporation Act of 1868, and the provision substituted by these two Acts was not the same. The Court said the presumption was that the later Act was last approved, and repealed chapter 203, and became the law; hut they also had the testimony of the Governor that chapter 325 was in fact approved last.

Here we must depend on the presumption entirely. The numbers indicate considerable difference in the time of passage, and the journals show that ch. 261 was finally passed on the 2d of April, and that 497 was finally passed on the 5th of the same month. Both these Acts repeal section seven of Article sixty of the Code, and each enacts a new section seven; but