Brawner v. Supervisors of Elections

⁵⁹¹ Omi'ua'T, J., delivered the opinion of the Court-. Harry O. Brawncr, a. citizen, resident and tax payer of Baltimore City, filed in the Baltimore City Court a petition against the Supervisors of Election of Baltimore City, in which he asked that a writ of mandamus be issued out of that court commanding the respondents to refrain from printing on the official ballots to be used at the general election to be held in that city on November 7th, 1922, the proposition of the approval or disapproval' of chapter 4-1-8 of the Acts of 1922, commonly called the “Soldiers’ Bonus Act.” That relief was asked on the ground that the act violated provisions of the State and Federal Constitutions and was therefore void. The respondents', in their answer to that petition, denied that the act was unconstitutional, but admitted that they intended to print upon the official ballots, to be used at the election in November, 1922, the proposition of its approval or disapproval, and to do all things provided by it in order to effect its purpose. The court overruled a demurrer filed by the petitioner to that answer, and dismissed his petition, and from that order this appeal was taken.

The only question presented for the consideration of this Court, therefore, is the constitutionality vel non of chapter 448 of the Acts of 1922. The purpose of that act is declared in the first section thereof in the following language: “That in order to pro- mote the spirit of patriotism and loyalty, in testimony of the gratitude of the commonwealth and in recognition of the services of certain residents, of Maryland to the full extent’ of the demand made upon them and their opportunity in the-Army and Navy of the Fnited States during the war with Germany, the payments hereinafter specified are hereby authorized”: and its subject as slated in its title is “to provide, suitable' recognition for those residents of Maryland who> served in the Army and Navy of the United States during the war with Germany, to authorize the creation of a State ⁵⁹² debt not to exceed $9,000,000 for this- purpose and to provide for the levying of taxes for paying interest on said debt and for the redemption of said debt, and providing for a referendum thereon.” It in effect provides for the payment to each resident of Maryland mustered into tire federal service and who reported for active duty as a commissioned officer, enlisted man, field clerk or nurse in’ the army or navy of the United States during the war with Germany, and served therein for tire period stated in the act, $10 a month for each month of service, and providing in certain cases for the payment of $30 per month to any person entitled to compensation under the act, who may desire to continue his education in any of the educational institutions of the State, whilst in regular attendance as a student at such institution, the total payments not to exceed $1,080. It creates a military service recognition board to carry out its provisions, and provides the machinery by which such compensation may be asked and granted, and it also provides for the issuance and sale by the State of bonds to the amount of $9,000,000 to meet the expenditures authorized by the act and for levying taxes to pay such bonds and the interest thereon. Finally it provides that it shall be, at the general election in 1922, submitted to the qualified voters of the State for {heir approval or rejection.

It is contended that the act is void because it violates the following provisions of the Maryland Constitution, that is to say, article 11, section 1, which prescribes the manner of amending the Constitution; article 3, section 34, which limits the extensions of the State’s credit; article 3, section 59, which prohibits the establishment of any general pension system; article 3, section 29, which requires that the subject of every act shall be described in its title; article 3, section 40, which forbids the taking of private property for any other than a public purpose and then only upon the payment of “due” compensation; article 3, section 34, which requires the discharge of all debts of the State within fifteen ⁵⁹³ years from “tlie time of contracting” them. It is also charged that it violates certain provisions of the Federal Constitution, in that it confers special privileges, upon a limited class of persons at the petitioner’s expense and deprives him of his property without due process of law, and the last objection is.that the Constitution of Maryland constitutes “a contract between said State of Maryland and the petitioner which the act violated.” Of these objections, all but three are free from difficulty and may be disposed of with brief comment. Those three however, are of a much more substantial and serious character and demand the most careful scrutiny and the most scrupulous consideration in justice both to the State and its people and to the beneficiaries of the act, to whom the State and its people in common with the other States of the Union and the people thereof are so deeply indebted. Eeferendum.

The first question which we will consider is not apparently referable to any of the objections named, but is clearly made in the appellant’s brief and is assumed by the appellee to be raised by paragraph 10 A of the appellant’s petition, and it is based upon the effect which those provisions of article 3 of the Constitution of Maryland, relating to the passage of legislation in that State, ha-ve upon that provision of the Soldiers’ Bonus Act which submits it for approval or rejection to tbe qualified voters of,the State. That proposition the appellant states in these words: “The General Assembly of Maryland is utterly wanting in authority to make the validity of a public general statute dependent upon approval by a majority of tbe voters of tbe State under a referendum.” That proposition has in various forms been a subject of judicial examination in the courts of the several states for many years, and while at the outset it involved a political rather than a legal question, nevertheless, because it has been passed upon so often by the appellate courts in so many of the states, it has become by virtue of the rule of stare decisis ⁵⁹⁴ essentially a legal question, and we can only consider its political aspect in so far as it will aid us in interpreting the meaning of the constitutional provisions hearing upon the question, in the light of the decisions of the courts of the several states which have dealt with the effect of similar provisions upon legislation, affecting the State as a whole, which submitted to the people of the entire State the question as to whether it should or should not become effective. The question has never been before this Court in the precise form in which it now occurs, but this Court, in disposing of other cases involving some phase of the right, which has been claimed by legislatures, of redelegating to the people the power of making laWs, has necessarily established-and stated principles which we must now regard as of paramount and controlling influence. In dealing with the question, we will exclude from consideration all cases involving only the right of a legislature to refer to the people of a designated municipal or quapi municipal corporation, or to tire people of a specified and described community, the question as to whether local legislation affecting only that locality shall become effective, because, while the power of the legislature' to refer local legislation affecting it álone to the people of such a corporation or of some political sub-division of the State, or of some defined locality, cannot be questioned in this State (Levering v. Supervisors of Elections, 137 Md. 287 ), and is sustained by the weight of authority elsewhere (12 C. J. 857, notes 92 and 93), it is equally well settled that the reasons given in those decisions upon which they rest are not applicable to legislation affecting the whole state, 12 C. J. 841; 6 R. C. L. p. 166.

The reason usually given, in cases which support the right of the legislature to refer local legislation to the people of the localities affected, is the power which the legislature, the law making agency of the state, has over its “derivative creations,” (Oberholtzer on Referendum in America, edi ⁵⁹⁵ tion 1911), and which is unlimited except by the state and federal constitution. That reason however has no application to a statute which affects, not a creation of the state, but the entire state and every part thereof. It has been said that this distinction is arbitrary and illogical, and rests more upon political expediency than upon sound legal principles. Nevertheless the final and complete answer to that position is that the question is no longer open, but has boon finally settled by repeated decisions of this Court and by a preponderance of authority elsewhere, so great that we are constrained to accept it in connection with our own decisions as conclusive of the question.

Coming back to the main proposition, in our judgment, the Legislature had not the power to submit the act in question to the qualified voters of the State for their approval or disapproval, and we rest onr conclusion upon two grounds, one, that the people of Maryland, having delegated to the Legislature of Maryland the power of making its laws, that body could not legally or validly redelegate the power and the authority thus conferred upon it to the people themselves; and two, that .the people of the State, from whom the Legislature itself derives its powers, having prescribed in the Constitution of the State the manner in which its laws shall be enacted, it is not competent for the Legislature to prescribe any other or different way in which its laws may be enacted. The state of the law in regard to the first proposition is clearly stated by Mr. Oberholtzer in his book on the Referendum in America (1911), page 208, in which he says: “As to the constitutionality or unconstitutionality of lawmaking by popular vote in and for the states, always excepting laws for counties, cities and local districts,, there is today little difference of opinion. The general principle that a body acting under delegated authority cannot redelegate its powers to some other person or body, is, a well settled point in American law. Delegala potestas non potest delegari is a ⁵⁹⁶ rule the virtue of which no one disputes.” And this statement fairly reflects the views of the courts in the decisions to which he refers: “Rice v. Foster, 4 Harr. 476 ; Parker v. Commonwealth, 6 Barr (Penn.), 507; Barto v. Himrod, 4 Seld.

(N. Y.) 483; Thorne v. Cramer, 15 Barb. (N. Y.) 112; C. W. & Z. R. R. Co. v. Clinton County, 1 O. S. 77 ; Boyd v. Byrant, 35 Ark. 69 ; Upham v. Supervisors of Sutter County, 8 Cal. 379 ; Ex-Parte Wall, 48 Cal. 279 ; State v. Wilcox, 42 Conn. 364 ; Maize v. The State, 4 Ind. 342 ; Santo v. State, 2 Iowa, 165 ; Geebrick v. State, 5 Iowa, 491 ; State v. Weir, 33 Iowa, 134 ; Commonwealth v. Weller, 14 Bush. (Ky.) 218; Fell v. State, 42 Md. 71 ; People v. Collins, 3 Mich. 343 ; Alcorn v. Hamer, 38 Miss. 652 ; State v. Hayes, 61 N. H. 264; City of Paterson v. Society for Establishing Useful Manufactures, 4 Zab. (N. J.) 385; Morgan v. Monmouth Plank Road Co., 2 Dutch (N. J.) 99; Bank of Chenango v. Brown, 26 N. Y. 467 ; Gordon v. State, 46 O. S. 607; State v. Swisher, 17 Texas, 441 .” Chieb Judge Rug gees, in the Xew York Oourt of Appeals, in one of the early cases dealing with this question (Barto v. Himrod, 4 Seld. 483), stated the-rule and the reasons for it with convincing lucidity and force.

The act with which the Court was dealing there, and which provided for the establishment of free schools in Xew York, contained this provision, which is a paraphrase of tire act under consideration here: “The electors shall determine by ballot at the annual election to be held in Xovember next whether the act. shall or shall not become a law.” In dealing with the effect of that provision upon the act the Court said: “The legislative power in this state is vested by the constitution in the senate and assembly (art. 3, sec. 1). The power of passing general statutes exists exclusively in the legislative bodies.” * * * The exercise of'this power by the people in other cases is not expressly and in terms prohibited by tire constitution; but it is forbidden by necessary and unavoidable implication. The senate and assembly are the only ⁵⁹⁷ bodies of men clothed with the power of general legislation. They possess the entire power with the exception above stated.

The people reserved no part- of it to themselves excepting in regard to law's creating public debt; and can therefore exercise it in no other case. * * * The legislature had no power to make such submission nor had the people the power to hind each other by acting upon it. They voluntarily surrendered that power when they adopted the constitution. The government of this state is democratic; hut it is a representative democracy, and in passing general laws, the people act only through their representatives, in the legislature. * * * It is not denied that a valid statute may he passed, to take effect upon the happening of some future event certain or uncertain. But such a statute when it comes, from the hands of the legislature must he law in presentí to take effect in futuro.

If the- observations already made are correct, the act of 1849 was not such a statute. But if by the terms of the act it had been declared to be law from the time of its passage, to take effect in case it should receive a majority of votes in its favor, it would neverthelss have been invalid, because the result of the popular vote upon the expediency of the law' is not such a future event, as the statute can be made to take effect upon, according to the meaning and intent of the constitution. The event or change of circumstances on which a law may he made to take effect, must be such as in the judgment of the legislature affects the question of the expediency of the law; an event on which the expediency of the law, in the judgment of the law makers, depends. On this, question of expediency, the legislature must exercise its own judgment definitely and finally.

When a law is made to