Hillman v. Stockett

Marbury, C. J., delivered the opinion of the Court. This case arose by the filing of a petition for the writ of mandamus in the Circuit Court for Anne Arundel County, on September 30, 1944. The petitioner, Noah A. Hillman, recites that he is a citizen of the United States, and of the State of Maryland, a resident and tax payer of the City of Annapolis, and a member of the Bar of the State of Maryland. The defendants are the Board of Supervisors of Election for Anne Arundel County.

The ⁶⁴⁴ Secretary of State of Maryland filed an intervening petition and was made a party defendant by order of Court. All of the defendants demurred. The Court below sustained the demurrers ánd dismissed the petition. An appeal was immediately taken to this Court.

On account of the public interest involved, and the necessity of a decision before the election of November 7, 1944, the case was advanced and heard on October 26, 1944. A per curiam order was filed on October 27, 1944, affirming the order of the Court below. The reasons for the order are now given. The petition for mandamus recited the passage by the General Assembly of 1943, of two bills, each proposing amendments to the Constitution of Maryland.

One of these is Chapter 772 and the other is Chapter 796. Petitioner contended that these bills, proposing these amendments, were not in accord with the provisions of the Constitution prescribing the method by which it may be amended, and as a result, the Supervisors of Election were without power to print the propositions on the official ballots to be used at the election to be held at Anne Arundel County, on the 7th day of November. The Court was asked to issue a writ commanding the Supervisors of Election to refrain and abstain from canvassing the proposed amendments, and, if time permitted, commanding them to refrain and abstain from printing the amendments upon the official ballots to be used at the election. The demurrers said' that the petition was bad in substance and insufficient in law, that the facts set out in the petition did not entitle the petitioner to the issuance of the writ, that both Chapter 772 and Chapter 796 were valid, legal, proper and constitutional enactments proposing amendments to the Constitution of Maryland, and that the Court was without jurisdiction or power to grant the relief because the matters as to which the aid of the Court was sought were confined, by the Constitution of Maryland, to the legislative and executive branches of the State Government, and “not to the judicial branch ⁶⁴⁵ Inasmuch as the power of the Court is challenged in these demurrers, we shall first refer to that, although it was not stressed in the argument before us.

The questions raised by the petitioner do not have to do with the progression through the two houses of the Legislature of a bill proposing a constitutional amendment. Nor do they have to do with the determination whether a majority of votes were cast in favor of such amendment. These were the questions raised in the case of Worman v. Hagan, 78 Md. 152 , 27 A. 610 . The questions here have to do with the form of proposals to amend the Constitution, and a proper interpretation of certain sections of the Constitution, which it is claimed were applicable and were not followed by the General Assembly.

We are not dealing with amendments which have been voted on and proclaimed by the Executive. We are dealing with the construction of certain sections of the Constitution, and the applicability of these sections to the proposals. Construction of constitutional provisions has been too often and too frequently held to be within the province of the judicial branch of the Government, for there to be any doubt about it now. We entertain none.

It is the province and the duty of the Courts to interpret the Constitution when questions involving its interpretation are properly before them. It was also contended by the appellees, although these contentions were abandoned at the hearing before us, that the petitioner, in none of the capacities in which he filed his petition, was entitled to ask the aid of the Courts, and that mandamus was not the proper remedy in this case. In view of the abandonment, we shall not discuss these questions further than to say that there have been several cases in this Court, which uphold both the right of the petitioner to sue and the correctness of his procedure. These are Pumphrey v. Mayor, etc., Baltimore, 47 Md. 145 , 28 Am.

Rep. 446 ; Levering v. Board of Supervisors, 129 Md. 335 , 99 A. 360 ; Levering v. Board of Park Commissioners, 134 Md. 48 , 106 A. 176 ; Levering v. Board of Supervisors, 137 Md. 281 , 112 A. 301 ; and Brawner v. Curran, 141 Md. 586 , 119 A. 250 . ⁶⁴⁶ Petitioner contended that the titles to both Chapter 772 and Chapter 796 were insufficient and misleading, and did not correctly describe the purposes of the legislation, contrary to the provisions of Article III, Section 29, of the State Constitution. This contention we shall consider first. It applies to both chapters. Section 29 of Article III provides for the style of “all laws of this State” and it refers throughout to “laws”.

There is a clear distinction between bills and laws. A bill is a proposal, which originates in either house of the General Assembly, and it may be amended or rejected in the other. It does not become a law until it has been passed in each house by a majority of the whole number of members elected. It is then presented to the Governor, and if he signs it, it becomes a law.

He may veto it, and it may be passed over his veto, and thus become a law. Or, the Governor may fail to return the bill within six days after it is presented to him, and upon such failure, the bill will become a law, unless the Legislature has adjourned and prevented its return. All of this was recently discussed in the case of Robey v. Broersma, 181 Md. 325 , beginning at page 339, 26 A. 2d 820 , 29 A. 2d 827 . Proposals, by the General Assembly, of amendments to the Constitution under Article XIY thereof, are by bills which have to be passed by three-fifths of all of the members elected to each of the two houses.

These bills are then published once a week, for at least three months, before they are submitted to the voters. The votes cast, for or against the proposals, are returned to the Governor after the election, and if it appears to him that the majority are cast in favor, then the Governor, by his proclamation, declares the amendments adopted, and thereafter the amendments are part of the Constitution. The distinction between laws and bills proposing constitutional amendments was before this Court in the case of Warfield v. Vandiver, 101 Md. 78 , 60 A. 538, 540 . That case was the result of the refusal of the Governor to cause to be published a bill proposing a constitutional amendment which was not submitted to him for his ⁶⁴⁷ approval, and which he, therefore, claimed was not operative.

The Court discussed the distinction between bills, which might become laws, and bills which proposed amendments to the Constitution. It said that a proposal of an amendment to the Constitution was not legislation, and that whatever legislation the Governor had a right to sign ceased, when signed by him, to be a bill, and became a law. The Court discussed Section 17 of Article II, of the Constitution, which is the section providing the duties of the Governor, with respect to bills which are intended to become laws and said, “The distinction between a bill and a law is carefully maintained throughout the foregoing section; and the plain and clear provisions of the section make it morally certain that it has no application to a proposed constitutional amendment.” The provisions of Section 29 of Article III have likewise to do only with laws and not with bills. A bill proposing a law may originate in either of the two houses of the General Assembly, with one title, pass through that house, go to the other house, and there be amended, both as to its title and as to the body of the enactment.

Its validity as a bill would not be affected by any discrepancies between its title and the body of the enactment, nor in the course of its progress through the Legislature is it required that the provisions of Section 29 apply to it. It is only when it has finally passed, and become a law in one of the methods above set out, that Section 29 becomes operative upon it. That section, therefore can never become operative upon a bill proposing a constitutional amendment, and such a bill is not subject to its provisions. Petitioner also contended that Chapter 772 and Chapter 796 were both null and void because they were in conflict, and that the Court should so hold both proposals.

It would seem to be obvious that this question was not before the Court. Neither of the proposals had been voted on, neither might be adopted by the voters, or one might be adopted, and the other might fail of adoption. The voters might conclude, as did the petitioner, that ⁶⁴⁸ the two were contradictory, and, therefore, they might determine to adopt the one they preferred, and not to adopt the other. The Court could not anticipate the action of the people.

It would be assuming powers, far beyond the scope of those given to the judiciary, were it to refuse to permit the people to choose between two contradictory proposals (if they were contradictory), by declaring both proposals void, in advance of the adoption of either. If two contradictory provisions are placed in the Constitution, it might then become the duty of the Court to construe them and to determine what they mean. Until that occasion arises, the Court has here only to do with proposals. There is nothing in the Constitution to prevent the Legislature from making as many proposals as it chooses, and from making such proposals contradictory, in order to let the people choose between them.

The only requirement is that the proposals shall be made in the manner prescribed by the Constitution, and this brings us to the last and main contention of the petitioner. It is stated in 16 C. J. S., title “Constitutional Law”, par. 7 a: “The constitutions of the several states respectively prescribe the method by which they may be amended or revised; and a particular constitution may be changed only by the method therein prescribed, and a failure to comply therewith renders an alleged amendment void” and further, “Provisions of a constitution regulating its own amendment, otherwise than by a convention, are not merely directory, but are