State v. Benzinger

Fowler, J.,

delivered the opinion of the Court.

The appellees were indicted in the Criminal Court of Baltimore City for failure to take out licenses as insurance brokers as required by the law of this State.

The controlling, indeed the only question to be considered on this appeal is as to the effect of the Act of 1896, chapter 266. It appears from the title of this act that its sole object was to repeal the Act of 1894, chap. 377, but upon examination of the body of the act we find therein new and affirmative legislation. It was contended by the traversers that while the Act of 1896, chap. 266, is clearly void as being in violation of sec. 29, Art. 3, of the Constitution, so far as the new and affirmative legislation is concerned, yet the effect of the act was, as set forth in its title, to repeal the Act of 1894, chap. 377. The result of upholding this view would be to strike down all statutes requiring insurance brokers to take out licenses to carry on their business in this State. We cannot suppose that such was the intention of the Legislature. On the contrary, it is apparent from the face of the act itself that the intention was to compel the payment of the same license fee theretofore enacted, namely, the sum of one hundred dollars. Inasmuch, therefore, as it would clearly thwart the intention of the law-makers, and at the same time strike down an important branch of the revenue law of the State, we should not, unless required so to do by some unbending rule of construction, give this repealing law the effect imputed to it by the traversers. It has been repeatedly held that where *488 a repeal of a prior law is inserted in an act in order to secure the unobstructed operation of such Act, and the repealing law is itself held to be void, the provision for the repeal of prior laws will fall with it, and the whole law will be declared inoperative and void. In the case of Campau v. Detroit, 14 Mich. 276 , it was held by the Supreme Court of that State, Judge Cooley delivering the opinion, that whether one part of the repealing law would be allowed to stand, while others were declared void, “ must depend upon whether, by the amendatoiy law, it is apparent that the Legislature intended them as inseparable parts of the same system, mutually dependent upon each other.” By the repealing law under-consideration in Campau v. Detroit , it was attempted to amend three sections of a former law, and it was contended that two of the amended sections could stand, notwithstanding the others failed. But Judge Cooley said : “We know of no principle which would warrant us in selecting out portions of the sections to stand unaffected by the constitutional infirmity of the remainder.” And especially should this not be done when, to hold the repealing part of the law valid and the remainder void, would be obviously contrary to the intention of the Legislature.

In support of their position the traversers relied strongly upon the case of Stiefel v. Trustees of the Blind Asylum, 61 Md. 144 . In that case it was held that the first section of the Act of 1880, ch. 403, was operative, and repealed the Act of 1872, ch. 363, and that the second section, which attempted to enact affirmative legislation, was void. In the first place, it will be noticed that the Act of 1880 contains two sections, the first of which contains only the repealing clause, and the second the additional legislation, which it was held wás not covered by the title. Nor does it appear by the Act of 1880 that the Législature intended the first and second sections thereof to be inseparable and mutually dependent upon each other, so' that if one should be held void the other must fall also. On the contrary, the first section, the effect of which, it was held, was to repeal the *489 Act of 1872, and thereby withdraw from the Trustees of the Blind Asylum the right to divert a public highway, may well stand alone. It is in no manner necessarily connected with or dependent upon the second section, nor would its operation in any way conflict with the intention of the Legislature as expressed in the whole act. It would appear that the object of the Legislature in passing the Act of 1880 was to restore North street to the location it had before the Act of 1872 was passed, and to provide for its opening. The accomplishment of this intention was secured by the decision in Stiefel’s case, for by the first, section the Act of 1872 was repealed, thus taking from the trustees the right to change the location of North street when extended, and leaving it where it had been located before the Act of 1872 was passed. And, although the second section was declared void, and therefore the particular mode thereby provided for opening North street could not be availed of, yet there was ample provision made in then existing laws for that purpose. By the decision in Stiefel’s case, therefore, the object of the Legislature was accomplished, while, as we have shown, the application of the same rule which was applied in that case to the Act of 1880 would, if applied here to the Act of 1896, produce directly the contrary result, and our conclusion therefore is that the Act of 1896, ch. 266, is invalid and void.

(Decided June 19th, 1896).

We find nothing in conflict with this view in Scharf v. Tasker, 73 Md. 385 ; Whitman v. State, 80 Md. 410 , nor in State v. Schultz Co., ante, p. 58.

The demurrer to the indictment should have been overruled, and the judgment appealed from must, therefore, be reversed.

Jzidgment reversed and cause rema?ided.