Cohen v. Governor of Maryland

Barnes, J., delivered the opinion of the Court. In this appeal, Stanley Cohen, the plaintiff below and appellant here, has challenged the constitutionality of Chapter 76 of the Laws of Maryland, 1969, which purported to provide for a “general election” on November 4, 1969 at which time all amendments to the Maryland Constitution proposed by the General Assembly of Maryland at its 1969 Session were to be submitted for adoption or rejection. Because of the public importance of the case, the Court issued its Per Curiam Order on June 30, 1969 for reasons to be given in an opinion to be filed later, in which it indicated that the Court “is firmly persuaded that the direction of Section 1 of Article XIV of the Constitution of Maryland that a constitutional amendment proposed by the Legislature be submitted to the qualified voters of the State for adoption or rejection at ‘the next ensuing General Election’ is not gratified by submission of the constitutional amendments proposed by the Legislature at the 1969 Session to the voters of the State at an election called for that special purpose only for November 4, 1969 by Ch. 76 of the Laws of Maryland of 1969” and reversed the Order of the Circuit Court of Baltimore City dated June 3, 1969 dismissing the Bill of Complaint, with costs and we issued the mandate forthwith. Our reasons for our opinion follow.

The General Assembly passed eight proposed constitutional amendments, with the required three-fifths vote in both Houses, for submission to the voters of Maryland for adoption or rejection. These amendments may be briefly summarized for the purpose of this appeal as follows : 1. House Bill No. 13, passed the House of Delegates on March 4, 1969 and the Senate on March 20th. It became Chapter 784 of the Laws of 1969.

It provided for a lower period of residency for residents of the State and ⁸ election district for voting with special provisions for residence requirements for Presidential elections. 2. House Bill No. 913, passed the House on March 14th and the Senate on March 21st. It became Chapter 785 of the Laws of 1969. It would fix the size of the two Houses of the General Assembly, establish standards for districting the State and for redistricting and reapportionment on a regular basis. 3.

House Bill No. 914, passed the House on March 11th and the Senate on March 20th. It became Chapter 786 of the Laws of 1969. It would establish an alternate procedure for any county to submit to the voters of that county the question of adopting or rejecting a charter form of government. 4. Senate Bill No. 442, passed the Senate on March 25th and the House on the same day, March 25th, the last day of the 1969 legislative session.

It became Chapter 787 of the Laws of 1969. It would establish the office of Lieutenant Governor for the State and would adopt procedure generally relating to his appointment, qualifications and election, as well as for gubernatorial succession and impeachment. Section 1 of this Act contained the following provisions amending Article II, Section 2 of the Maryland Constitution: “An election for Governor and Lieutenant Governor, under this Constitution, shall be held on the Tuesday next after the first Monday of November, in the year nineteen hundred and seventy IF THIS AMENDMENT IS ADOPTED IN THE YEAR NINETEEN HUNDRED AND SIXTY-NINE; OR, FOR GOVERNOR IN THE YEAR NINETEEN HUNDRED AND SEVENTY AND JOINTLY FOR GOVERNOR AND LIEUTENANT GOVERNOR IN NINETEEN HUNDRED AND SEVENTY-FOUR IF THIS AMENDMENT IS ADOPTED IN THE YEAR NINETEEN HUNDRED AND SEVENTY, and on the same day and month in ⁹ every fourth year thereafter, at the places of voting for Delegates to the General Assembly; * * *” (The portion of Sec. 2 in capital letters was added by amendment after the introduction of the original bill.) 5. Senate Bill No. 481, passed the Senate on March 25th and the House on the same day, March 25th.

It became Chapter 788 of the Laws of 1969. It would permit sessions of the General Assembly to extend to 90 days, with an additional possible 30-day extension by a three-fifth vote of each House, would establish the General Assembly Compensation Commission and would provide for the convening of extraordinary sessions of the General Assembly by the Governor. 6. Senate Bill No. 524, passed the Senate on March 17th and the House on March 24th. It became Chapter 789 of the Laws of 1969.

It would increase the size and powers as well as alter the procedures of the Commission on Judicial Disabilities; it would create a District Court for the State which would replace the trial magistrates, the justices of the peace and various People’s Courts of the State; and it provided that no member of the General Assembly at which the amendment was passed or at which the number or salary of any such judges may have been increased or decreased should be ineligible for appointment as a judge of the District Court because of membership in the General Assembly. 7. Senate Bill No. 526, passed the Senate on March 14th and the House on March 20th. It became Chapter 790 of the Laws of 1969. It would authorize the Governor to make changes in the Executive Branch of the State Government by certain specific measures and would set forth the legal status of such reorganizations when made in conformity with those specific methods. 8.

Senate Bill No. 581, passed the Senate on March 17th and the House on March 21st. It became Chapter 791 of the Laws of 1969. It would empower the Governor, with the advice and consent of the Senate, to ap ¹⁰ point all trial and appellate judges of the State; would establish procedures for hearings and confirmation or rejection by the Senate; would establish a term of 15 years for each judge so appointed and confirmed at the end of which term the Governor would reappoint the judge, subject to approval or rejection by the Senate; and would increase the powers and alter the procedures of the Commission on Judicial Disabilities. Section 2 of Chapter 784 (House Bill No. 13) is different from Section 2 of the other seven proposed constitutional amendments.

Section 2 in Chapter 784 provides as follows: “SEC. 2. And be it further enacted, that the aforegoing section hereby proposed as. an amendment to the Constitution of Maryland, at the next general election to be held in this State in November 1970, shall be submitted to the legal and qualified voters thereof for their adoption or rejection in pursuance of directions contained in Article XIV of the Constitution of this State, and at the said general election, the vote on the said proposed amendment to the Constitution shall be by ballot, and upon each ballot there shall be printed the words ‘For the Constitutional Amendment’ and ‘Against the Constitutional Amendment’ as now prescribed by law, and, immediately after said election, all returns shall be made to the Governor of the vote for and against said proposed amendment, as directed by said Article XIV of the Constitution, and further proceedings had in accordance with said Article XIV.” (Emphasis supplied.) In all of the remaining seven constitutional amendments Sec. 2 does not contain the words and figures, “in November 1970”, but is otherwise identical to Section 2 in Chapter 784. In these remaining seven proposed amendments the language is that: ¹¹ “The foregoing sections hereby proposed as amendments to the Constitution of Maryland, at the next ensuing general election to be held in this State, shall be submitted * * *” etc. Chapter 76 of the Laws of 1969, principally under attack in this case, was House Bill No. 853. It passed the House on March 12th, the Senate on March 20th, was returned to the House on March 21st and was signed by the Governor on April 9, 1969.

It provides as follows: “AN ACT providing for a general election on November 4, 1969, at which shall be submitted for adoption or rejection all amendments to the Maryland Constitution proposed by the General Assembly in its 1969 session, and relating generally to this election. “SECTION 1. Be it enacted by the General Assembly of Maryland, that the following provisions with respect to the holding of a general election on November 4, 1969, at which shall be submitted for adoption or rejection all amendments to the Constitution of Maryland proposed by the General Assembly in its 1969 session, be, and are, hereby adopted. “1. A general election shall be held on Tuesday, November 4, 1969 at which shall be submitted to the qualified voters of the State for adoption or rejection all amendments to the Constitution of Maryland proposed by the General Assembly during its 1969 legislative session. “2. Funds as appropriated by law shall pay the cost of this election and the Constitutional provisions and laws of this State relating to referenda for Constitutional Amendments shall govern this election. “SECTION 2.

And be it further enacted, that this. Act is hereby declared to be an emergency measure and necessary for the immediate pres ¹² ervation of the public health and safety, and having been passed by a yea and nay vote supported by three-fifths of all the members elected to each of the two houses of the General Assembly, the same shall take effect from the date of its passage.” The appellant Cohen filed his bill of complaint attacking the constitutionality of Chapter 76 in the Circuit Court of Baltimore City on April 22, 1969, as a taxpayer, both on his own behalf and on behalf of those similarly situated. After reciting his status as a taxpayer and that the suit was a class suit, he identified the defendants (appellees in this Court) as Blair Lee III, Secretary of State of Maryland who under the provisions of Code (1957), Art. 33, Sec. 16-6, was required to prepare and certify the form in which a constitutional amendment or rejection should appear on the ballots; the Board of Supervisors of Elections of Baltimore City (identifying its three members by name and position on the Board), reciting that the Board had the legal duty to conduct elections in Baltimore City and Marvin Mandel, Governor of Maryland, whose duty it is by the Article XIV of the Maryland Constitution to order the publication of the bills proposing amendments in various newspapers and after the vote is taken, to issue a proclamation that the amendments approved have been adopted by the people of Maryland as a part of the Maryland Constitution. After describing the provisions of Chapter 76 as well as the provisions of the eight proposed constitutional amendments already mentioned and summarized, the appellánt Cohen alleged that it was estimated that the election called for November 4, 1969 would cost approximately $800,000 and that this expenditure “would constitute a waste and misapplication of funds of the taxpayers of the State of Maryland; * * *”.

The prayers for relief were as follows: 1. For a declaratory judgment declaring Chapter 76 either constitutional or unconstitutional. ¹³ 2. For a declaratory judgment determining and declaring separately which of the eight proposed constitutional amendments are “constitutionally or unconstitutionally matters to be put before the Electorate under Article XVI, Section 2 of the Maryland Constitution.” 3. For an injunction (a) restraining the respective defendants from spending, diverting for use or otherwise using the money of the State for publishing the proposed amendments, from preparing and certifying the form in which they should appear on the ballot, from conducting the proposed election in the Counties and in Baltimore City and from proclaiming and declaring that any amendment or amendments are adopted as a part of the Constitution of Maryland; and (b) “from placing before the Electorate each and every proposed amendment which Constitutionally could not be placed before the Electorate under Article XVI, Section 2 of the Maryland Constitution, such as are prohibited from being passed by the Legislature as an Emergency.” 4.

For other and further relief. The defendants filed an answer, substantially admitting the well-pleaded facts, including the estimated $800,-000.00 expenditure, denying the inferences, and praying that the Bill of Complaint be dismissed with prejudice. After argument and a consideration of the trial briefs of the respective parties, the Chancellor (Carter, J.) passed an Order on June 3, 1969 dismissing the bill of complaint, with prejudice, denying the relief sought in the bill of complaint and imposing costs on the plaintiff Cohen. On June 9, 1969, the Chancellor filed a written opinion giving the reasons for his order which in effect was a declaration that Chapter 76 was constitutional and valid and provided for a general election at which the eight proposed constitutional amendments could be submitted to the electorate on November 4, 1969.

A timely appeal was taken to the Court from this Order of June 3,1969. Two questions were briefed and argued before us: 1. Was the election proposed in Chapter 76 for No ¹⁴ vember 4, 1969, at which the voters of Maryland would be called upon to adopt or reject the eight proposed constitutional amendments the “next ensuing general election” as meant and required by Article XIV, Section 1 of the Maryland Constitution ? 2. Is Chapter 76 also unconstitutional under Article XVI, Section 2 of the Maryland Constitution because it was passed as an emergency measure?

We have concluded that the Chancellor erred in holding that the “general election” provided for in Chapter 76 was the “next ensuing general election” as meant and defined by Article XIV, Section 1 of the Maryland Constitution and we shall reverse the Order of June 3, 1969 for this reason. In our opinion, it is not necessary for us to consider or pass upon the second question presented to us. Article XIV, entitled “Amendments to the Constitution” provides in relevant part as follows: “The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three-fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or bills proposing amendment or amendments shall be published by order of the Governor, in at least two newspapers, in each County, where so many may be published, and where not more than one may be published, then in that newspaper, and in three newspapers published in the City of Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of the State for ¹⁵ adoption or rejection.

The votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the votes cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and thenceforth said amendment or amendments shall be part of the said Constitution. When two or more amendments shall be submitted in manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately.” (Emphasis supplied.) “Section 2. Constitutional conventions. It shall be the duty of the General Assembly to provide by law for taking, at the general election to be held in the year nineteen hundred and seventy, and every twenty years thereafter, the sense of the People in regard to calling a Convention for altering this Constitution; * * *” (Emphasis supplied.) As originally adopted in the Constitution of 1867, Section 2 contained the words “eighteen hundred and eighty-seven”.

The words “nineteen hundred and seventy” were added by amendment by the Acts of 1956, Chapter 99, ratified by the electorate at the general election of 1956. Inasmuch as the submission of constitutional amendments is controlled by the terms and provisions of Article XIV of the Maryland Constitution, the primary obligation upon us is to discern the intention of those who drafted this Article. As our predecessors stated in Buchholtz v. Hill, 178 Md. 280, 285-86 , 13 A. 2d 348, 351 (1940): ¹⁶ “The Maryland Constitution was carefully written and solemnly adopted by the Constitutional Convention of 1867, and approved by the people of the state; we should therefore be careful not to depart from the plain language of the instrument.” This intention is primarily discovered by considering the words used by the draftsmen, and these words are deemed to have been used in their ordinarily and generally accepted meaning. In Norris v. Mayor and City Council of Baltimore, 172 Md. 667, 676 , 192 A. 531, 535 (1937), Judge Offutt, for the Court, stated: “Since constitutions are the basic and orgánic law, and are meant to be known and understood by all the people, the words used should be given the meaning which would be given to them in common and ordinary usage by the average man in interpreting them in relation to every day affairs.” When the language used is clear and unambiguous, there is no need to use extrinsic aids to ascertain the meaning of the language.

As was stated in Reed v. McKeldin, 207 Md. 553, 560-61 , 115 A. 2d 281, 285 (1955): “It is a cardinal rule of construction that where the text of a constitutional provision is not ambiguous, the Court, in construing it, is not at liberty to search for its meaning beyond the Constitution itself. If the text is ambiguous, the Court should first endeavor to ascertain its meaning from other parts of the instrument. It is not until the means of solution afforded by the entire Constitution have been exhausted without success that the Court is justified in calling outside facts or considerations to its aid.” ¹⁷ In considering the usual and generally accepted meaning of the words “general election”, we find that these words are defined in Webster’s New International Dictionary (2nd Edition 1934) as follows: “General Election — an election in which every constituency chooses a representative.” This definition indicates that a “general election” is concerned with the state-wide election of representatives of the people and is “general” both in the sense of scope and in the sense of the principal purpose of elections, i.e. the selection of representatives of the people by ballot. A “general election” is to be contrasted with a “special election” which may be limited as to “scope”, as, for example, when local officials in a particular political subdivision are elected, or as to “purpose”, when for example, an issue or issues are presented to the electorate, or to a “primary election” which may be state-wide in scope, but which involves only the selection of candidates of particular political parties or independent candidates for presentation to the electorate at the next general election.

Other definitions include the requirement that a “general election” regularly recurs at fixed intervals without any other requirements than the lapse of time. In Black’s Law Dictionary (4th Ed. 1951) a “general election” is defined, in part, as follows: “One at which the officers to be elected are such as belong to the general government, — that is, the general and central political organization of the whole state; as distinguished from an election for a particular locality only. Also, one held for the selection of an officer after the expiration of the full term of the former officer ; * * *” A “special election” is defined, in part, as: “An election for a particular emergency; out of the regular course; * * * In determining ¹⁸ whether an election is special or general, regard must be had to the subject-matter as well as the date of the election, and, if an election occurs throughout the state uniformly by direct operation of law, it is a “general election”; See also 25 Am. Jur. 2d “Elections”, Sec. 3 (1966),