Board of Supervisors of Election for Wicomico County v. Todd

²⁵⁹ Jones, ]., delivered the opinion of the Court. The Act of Assembly of 1896, ch. 195, a public local law of Wicomico County, enacted in its first section “that whenever such of the registered qualified voters of Wicomico County, or of any election district, city or town thereof, as constitute one-half of all the votes cast for all of the candidates for Governor at the last election in said county, or in an election district, city or town thereof, shall petition the Circuit Court for said county for the submission, at the next regular congressional election held in said county of the question of granting or not granting any license for the sale of intoxicating liquors for beverages therein, the said Circuit Court shall, within ten days after the receipt of said petition, issue an order for an election on this question to the sheriff of the county, whose duty it shall be to give the same notice and perform all other acts required of him for the holding of elections under the election law of this State, and subject to like penalties in case of his default in his performance of said duties.” The second section enacts “that such election shall be held and conducted under the provisions of the election law applicable to the said county.” The 3rd section provides that after an election so held there shall be no other such election within four years. The 4th section provides how the question thus to be submitted to vote shall be indicated on the ballots; how the preference of the voters upon the question is to be made to appear and be ascertained; how the ballots are to be counted and canvassed in respect to this question; how the result of the voting is to be certified; and how notice is to be given of the result in case it shall “appear that the majority of the votes cast is against the sale of intoxicating liquors for beverages.” The succeeding sections of the law in question are provisions for carrying into effect the prohibition of the sale of intoxicating liquors for beverages in the county, election district, city or town as the case may be, according to the submission made in respect to locality, when it appears that a majority of the votes cast upon “the question of granting or not granting any license for the sale of intoxicating liquors,” &c., is against the granting of such license. ²⁶⁰ This case arises under this law and originated in a petition for the writ of mandamus filed in the Court below on the 24th day of October, 1902, by the appellees, George W. Todd and William A. Crew, against the appellants, in which it is alleged that the petitioners “together with four hundred and forty (440) other voters and residents” of the ninth election district of Wicomico County, on the 18th day of October, 1902, presented to the Circuit Court for that county a petition verified by affidavit praying the Court “to submit to the voters of said district the question of granting or not granting any license for the sale of intoxicating liquors for beverages therein * * in pursuance of the provisions contained in sec. 1 ofch. 195 of the Acts of Assembly of Maryland of 1896; ” that upon “the hearing of said petition and the motion of the objectors thereto” the said Court passed the following order. “No sufficient cause to the contrary having been shown it is this 23rd day of October, 1902, ordered by the Circuit Court for Wicomico County, Maryland, that in pursuance of sec. 1, ch. 195 of the Acts of 1896, the Sheriff of Wicomico County, Maryland, shall submit to the voters of the ninth election district of Wicomico County the question of granting or not granting licenses for the sale of intoxicating liquors for beverages in said district and the clerk is hereby directed to serve a copy ofthis order on the said Sheriff of Wicomico County immediately ; that in pursuance of said order the Sheriff on the 24th day of October, 1902, notified the County Commissioners of said county and on said day the County Commissioners notified the Supervisors of Election of said county ; but said Supervisors refused “to advertise the question” and were “preparing the official ballots to be used in said district without any provision for the submission of the aforesaid question to the voters.” It is then prayed that the writ be issued “directed to the said Supervisors of Election of Wicomico County,” who are the appellants here, “commanding them to advertise said question, and to prepare the official ballots to be used in the ninth district of Wicomico County-at the election to be held on November 4th, 1902, in accordance with the provins of section 4 of said chapter 195 of the Acts of 1896.” ²⁶¹ Upon this petition the Court below passed an order that cause be shown immediately by the appellants why the writ of mandamus should not issue. On the same day that this order was passed the appellants filed their answer in which they admitted the allegations of fact in the petition and rested their refusal to advertise the question of granting or not granting licenses for the sale of liquor and to place such question upon the ballots at the approaching election as set out and stated in the petition upon the ground that the Act of 1896, chapter 195, is unconstitutional and void ; that if not unconstitutional it is in conflict with the provisions of chapter 202 of the Act of 1896 from which the appellants, as Supervisors of Elections derived all of their powers and authority over elections in said county; and that by section 47 of the said chapter 202 of the Act 1896, “all questions of local concern which are to be submitted for approval to the vote of the people” of a county must be certified to the Board of Supervisors of Elections by the County Commissioners of the county not less than thirty days before the election at which such question is to be submitted ; and that the question of granting or not granting any license for the sale of intoxicating liquors in the 9th election district of Wicomico County had not been so certified thirty days before the election as a question to be submitted for approval.

The appellees demurred to the answer; and upon hearing the Court on the same day the answer was filed, October 24th, 1902, ordered the writ of mandamus to issue as prayed. From such order this appeal was taken. In the view we take of this case the ground of defense first set up in the answer of the appellants against the application for mandamus is sufficient to dispose of the case upon this appeal and it will be unnecessary to consider any other. We think it advisable to dispose of it upon this ground because future litigation under the law in question will thus be avoided.

The Legislature has seen fit to prescribe as a condition for the law (chap. 195 of the Act of 1896), being called into existence and put into operative effect, that an application shall be made to the Circuit Court for Wicomico County for a sub ²⁶² mission of the question of the adoption of the law, to the voters of the county or of a town or election district of the county as the case may be ; that the said Court shall order the submission of such question to a vote upon conditions prescribed; and that upon the vote being had a majority of the votes of the locality to be effected, according to the submission, shall appear to be in favor of putting the law into operation. The existence of the law with operative effect is made to depend upon the observance of these prescribed proceedings, the initial step in which is the application to, and the order from, the Circuit Court for the submission of the question, whether the law shall be put into effect, to the voters within the territorial limits to be affected. The question raised is as to the validity of this legislation. The inquiry as to this is whether it is within the constitutional power of the Legislature to impose upon the judiciary, or invest them with, a function of this character, and whether the judiciary in the attempt to discharge such a function are not acting without constitutional warrant.

In making this inquiry we are not dealing with any question of expediency or policy; nor can we have regard to the question whether, in the