Kadan v. Board of Supervisors of Elections

Smith, J., delivered the opinion of the Court. We shall here hold that it is not necessary for a judge of an orphans’ court to be a member of the bar. Petitioners, Daniel O. Kadan, Richard J. DiPasquale and Shirley Jean Stanton, are lawyers. 1 On September 24, 1974, they filed their bill of complaint in the Circuit Court for Baltimore County against the Board of Supervisors of Elections of that county (the Board) reciting that the Board had “accepted and certified the candidacy for nomination for the position of Judge of the Orphans’ Court for Baltimore ⁴⁰⁸ County” of a number of persons, including the plaintiffs, “the names of all of [whom] were placed on the primary ballot for nomination for the office of Judge of Orphans’ Court in the primary election on the 10th day of September, 1974.” It was claimed that five of the candidates, “namely T. Burgess Hamilton, Sr., Suzanne Mensh, Alexander B. Page, Jr., Frank J. Wesolowski and Warren Brown ha[d] no.t been admitted to practice law in any of the Courts of this State”; that the Board was “making preparations for the General Election to be held on November 5, 1974 listing the names of four of the aforesaid candidates who ha[d] not been admitted to the practice of law as required by Section 2, Article 4 of the Constitution of Maryland”; that the Board “permitted unqualified candidates to be placed on the official ballot which was used in the primary election on the 10th day of September, 1974 and [as of the time of the filing of the bill of complaint] intendfed] to permit unqualified candidates to be placed on the official ballots to be used on November 5, 1974 as candidates seeking the nomination as Judge of the Orphans’ Court for Baltimore County”; and “[t]hat the voters of Baltimore County, by virtue of the Constitution of Maryland, are unaware that they are voting for candidates who have not been certified nor do they meet the qualifications for the office of Judge of the Orphans’ Court as set forth in the Constitution of the State of Maryland.” It was prayed that the Board might “be enjoined from placing the names of any candidate who is not a member of the Bar of the State of Maryland or who has not been admitted to the practice of law in the State of Maryland ... on the ballot to be used in the General Election of Baltimore County on the 5th day of November, 1974,” and that the Board, “in so doing, disqualify the three Democratic candidates . . . nominated in the primary election, namely Alexander B. Page, Jr., T. Burgess Hamilton, Sr. and Suzanne Mensh, and place, the names of the three qualified candidates who have accumulated the highest number of votes in the primary election as nominees for the Democratic party” for the then forthcoming general election. Alexander B. Page, Jr., T. Burgess Hamilton, Sr., and Suzanne Mensh were granted leave to intervene. ⁴⁰⁹ The dispute revolves around Maryland Constitution Art. IV, §§ 1, 2, and 40, which state in pertinent part: “Section 1.

Judicial power vested in enumerated courts; courts of record; seals. “The Judicial power of this State shall be vested in a Court of Appeals, . . . Circuit Courts, Orphans’ Courts, ... and a District Court.... “Section 2. Qualifications of judges. “The Judges of all of the said Courts shall be citizens of the State of Maryland, and qualified voters under this Constitution, and shall have resided therein not less than five years, and not less than six months next preceding their election, or appointment, as the case may be, in the city, county, district, judicial circuit, intermediate appellate judicial circuit or appellate judicial circuit for which they may be, respectively, elected or appointed. They shall be not less than thirty years of age at the time of their election or appointment, and shall be selected from those who have been admitted to practice law in this State, and who are most distinguished for integrity, wisdom and sound legal knowledge. “Section 40.

Election and qualifications of judges; powers; compensation; vacancies; Montgomery and Harford counties excepted. “The qualified voters of the City of Baltimore, and of the several Counties, . . . shall . . . elect three men to be Judges of the Orphans’ Courts of said City and Counties, respectively, who shall be citizens of the State, and residents for the twelve months preceding, in the City, or County, for which they may be elected. They shall have all the powers now vested in the Orphans’ Courts of the State, subject to such changes as the Legislature may prescribe. Each of said Judges shall be paid such compensation as may be regulated by Law, and to be paid by the said City, or Counties, respectively. ⁴¹⁰ In case of a vacancy in the office of Judge of the Orphans’ Court, the Governor shall appoint, subject to confirmation, or rejection by the Senate, some suitable person to fill the same for the residue of the term.” It is the contention of the petitioners that since § 1 speaks of the judicial powers of this State being vested in certain courts including the “Orphans’ Courts” and since § 2 speaks of the qualifications for “[t]he Judges of all of the said Courts,” one such qualification being that the judges “be selected from those who have been admitted to practice law in this State,” that it follows that orphans’ court judges must be lawyers. The chancellor (Raine, J.) sustained a demurrer to the bill of complaint without leave to amend and dismissed the bill.

The petitioners appealed to the Court of Special Appeals and then applied to us for the writ of certiorari prior to the hearing of the case in that court. We granted the petition and advanced the case for argument because of the public importance of the question here presented, a question not heretofore determined by this Court. Except for the additions of provisions for “such intermediate courts of appeal, as shall be provided by law by the General Assembly,” and for the District Court, and the deletion at the time of the adoption of the District Court amendment of the earlier provisions for justices of the peace, § 1 reads as it was adopted in 1867 and as it was originally reported to the floor of the Constitutional Convention of that year. See Proceedings of the State Convention of Maryland to Frame a New Constitution 333, 736 (1867).

With the exception of slightly different language relative to the courts in Baltimore City, the section also read when proposed and adopted as did the same section in the Constitution of 1864. The language of § 2 as originally proposed and as it existed until 1966 referred only to judicial circuits. Proceedings at 333. No reference has been made by the litigants here to § 3, but as introduced into that convention and as adopted that section provided that “[t]he ⁴¹¹ Judges of the said several Courts [should] be elected ... by the qualified voters in their respective Judicial Circuits ... .” The original styling as reflected in the Report of the Committee Upon the Judiciary Department of the 1867 convention and as carried forward in the Constitution to this day reads immediately prior to § 1 “Part I — General Provisions. ’’Proceedings at 333.

For historical background as to probate law in Maryland before and after the adoption of Chapter 101 of the Acts of 1798 providing for orphans’ courts see 1 P. Sykes, Maryland Probate Law and Practice 1-9 (1956); C. Dorsey, The Statutory Testamentary Law of Maryland 9-15 (1838); and the address entitled “Orphans’ Courts” of then Chief Judge Marbury of this Court as President of the Maryland State Bar Association, 52 Trans, of Md. St. B. Ass’n 241 (1947). Specific provision was made in § 2 of Art. IV of the Constitution of 1864 that its provisions'were not applicable to the orphans’ courts. The proposal of the Committee Upon the Judiciary Department of the 1867 convention was that “[t]here [should] be an Orphans’ Court in the city of Baltimore, and in each of the counties of this State, to be he[d in the case of the city of Baltimore, by one of the Judges of the ‘Supreme Court of Baltimore City’ assigned thereto, and in the case of the counties by the Judges of the respective Circuit Courts . . . .” Proceedings at 341, and P. Perlman, Debates of the Maryland Constitutional Convention of 1867 at 399 (1923). The provisions relative to orphans’ courts and registers of wills were headed in that report “Part V — Orphans’ Courts,” under which heading §§ 40-41 appear today.

Proceedings at 341. Other headings used were “Part II — Court of Appeals,” “Part III — Circuit Courts,” “Part IV — Courts of Baltimore City,” “Part VI — Justices of the Peace,” and “Part VII — Sheriffs,” headings still in use except for the substitution of “Courts of Appeal” for “Court of Appeals” after provision for what is now the Court of Special Appeals and the further substitution of “District Court” for “Justices of the Peace” when the District Court replaced justices of the peace. The 1867 convention met on May 8 for its initial session. ⁴¹² On May 16 Delegate Henry F. Garey of the Second Legislative District of Baltimore City submitted a proposal that “the Committee on the Judiciary Department consider upon the propriety of the abolition of the Orphan’s Court system of the State, and the substitution of a method better adapted to the transaction of testamentary business.” Proceedings at 47, and Perlman, op. cit. 73. The order was duly adopted.

On May 18 Delegate Richard H. Alvey of Washington County, later Chief Judge of this Court, submitted.an order, likewise adopted, calling, among other things, for “[a]bolishing the Orphans’ Courts as [then] constituted, and conferring upon said county Judge[s] all the powers and jurisdiction thereof.” Proceedings at 72, and Perlman, op. cit. 85. When the convention took up on August 3 that portion of its committee report on the judiciary article dealing with orphans’ courts, Delegate William M. Merrick of Howard County proposed a substitute. It was in the basic language of the present § 40. Proceedings at 537, and Perlman, op. cit. 399, 400.

This was adopted on August 6. Proceedings at 562, and Perlman, op. cit. 410-411. The Perlman account must be placed in the context as stated in the preface to it, after lamenting “the failure to preserve the debates, [which] would have been of inestimable value in arriving at the true construction of provisions written into the Maryland Constitution for the first time by that Convention,” and reference to “[a] search of the files of The Sun” for data “later used in the argument” of a case in this Court, that “[t]he accounts in The Sun were reported with such apparent care that it was suggested that the articles on the Convention should be compiled and printed so as to make them accessible to those desiring information on the subject.” Perlman records relative to the adoption of the Merrick substitute: “Part five of the report, relative to the Orphans’ Courts, was then taken up, the substitute offered by Mr. Merrick (preserving the present system) for the 38th section being under consideration, and the pending question being on the amendment of Mr. ⁴¹³ Brent to prohibit the Orphans’ Courts from the power to order sales of real estate, which was not agreed to. “After some discussion, and the rejection of various amendments, the substitute of Mr. Merrick was adopted.” Id. at 410-11. (Emphasis added.) Under what was the then “present system” orphans’ court judges were not required to be lawyers.

In this regard it should be noted that the qualifications for an orphans’ court judge set forth in § 43 of the 1864 Constitution, that he be “at the time of his election a citizen of the United States and resident for twelve months in the city or county for which he may be elected,” are identical with those in § 40. The comparable section in the Constitution of 1851 was § 17 which provided that such judges should “be citizens of the State of Maryland and citizens of the city or county for which they [might] be severally elected at the time of their election.” All three Constitutions provided in identical language for the orphans’ courts to “have all the powers now vested in the Orphans’ Courts of the State, subject to such changes as the Legislature may prescribe.” No provision relative to an orphans’ court appeared in the Constitution of 1776. The divisions in Art. IV of the Constitution of 1864 are identical with those in Art. IV of the Constitution of 1867, that is the styling by numbered parts with the headings “General Provisions,” “Orphans’ Courts,” etc. It is stated in 16 Am.Jur.2d Constitutional Law § 64 (1964): “The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions.

A constitutional clause must be construed reasonably to carry out the intention of the framers, and should not be construed so as to defeat the obvious intent if ⁴¹⁴ another construction equally in accordance with the words and sense may be adopted which will enforce and carry out the intent. The intent must be gathered from both the letter and spirit of the document, the rule being that a written constitution is to be interpreted in the same spirit in which it was produced. The court should put itself as nearly as possible in the position of the men who framed the instrument. “Wherever the purpose of the framers of a constitution is clearly expressed, it will be followed by the courts. If the terms of a constitutional provision are not entirely free from doubt, they must be interpreted as nearly as possible in consonance with the objects and purposes in contemplation at the time of their adoption, because in construing a constitutional provision, its general scope and object should be considered.” Id. at 239-40.

A similar statement is found in 16 C.J.S. Constitutional Law § 16 (1956), with citation to Schneider v. Lansdale, 191 Md. 317 , 61 A. 2d 671 (1948), and Beall v. State, 131 Md. 669 , 103 A. 99 (1917). Neither of these cases specifically states the rule, but in both cases this Court sought to ascertain the intent of the framers. The title or heading of a statute has been held relevant in attempting to ascertain its intent and purpose. Mass Transit Adm. v. Balto.

Co. Revenue Auth., 267 Md. 687, 695-696 , 298 A. 2d 413 (1973). The history of a legislative enactment has been held to often shed light upon its intent and to be of aid in construing its terms. Truitt v. Board of Public Works, 243 Md. 375, 389 , 221 A. 2d 370 (1966). The subheadings within a constitution and its history should be considered as equally relevant.

In New Cent. Co. v. George’s Creek Co., 37 Md. 537 (1873), our predecessors, in construing the Constitution of this State, applied the rule of statutory construction concerning a presumption against retroactivity. Judge Alvey there ⁴¹⁵ stated for our predecessors at page 557: “There can be no good reason suggested why this same general principle, so wise and just, should not also apply as a rule of interpretation of the Constitution.” In Johnson v. Duke, 180 Md. 434 , 24 A. 2d 304 (1942), Judge Delaplaine said for this Court: “It is an elementary rule of interpretation that effect should be given, if possible, to every section and clause of a written Constitution; and where there is a special provision in conflict with a general provision, the special provision should be given effect to the extent of its scope, leaving the general provision to control in cases where the special provision does not apply.” (Citations omitted.) Id. at 440 . To like effect see 16 Am.Jur.2d, op. cit. § 69.

In Thomas v. Police Commissioner, 211 Md. 357 , 127 A. 2d 625 (1956), Judge Hammond said for the Court: “It is a hornbook rule of statutory construction that, in ascertaining the intention of the Legislature, all parts of a statute are to be read together to find the intention as to any one part and that all parts are to be reconciled and harmonized if possible. Bickel v. Nice, 173 Md. 1, 6 ; Baltimore v. Deegan, 163 Md. 234, 238 ; Pittman v. Housing Authority, 180 Md. 457, 463 ; Maguire v. State, 192 Md. 615, 623 ; Frazier v. Warfield, 13 Md. 279, 301 . A corollary rule of construction is that if there is no clear indication to the contrary and it is reasonably possible, a statute is to be read so that no word, clause, sentence or phrase shall be rendered surplusage, superfluous, meaningless or nugatory.” Id. at 361 . Accord, A. H. Smith Sand & Gravel v. Dep't, 270 Md. 652, 659 , 313 A. 2d 820 (1974); Anne Arundel County v. Moushabek, 269 Md. 419, 426 , 306 A. 2d 517 (1973); Parker v. Junior Press Printing, 266 Md. 721, 725 , 296 A. 2d 377 (1972); ⁴¹⁶ Prince George’s County v. Beard, 266 Md. 83, 91 , 291 A. 2d 636 (1972); and Baltimore City v. United Stores, 250 Md. 361, 368 , 243 A. 2d 521 (1968).

We conclude that these rules should be applied here in the process of interpretation of the Constitution of this State. Applying these rules, we note that § 2 appears under “General Provisions” while § 40 appears under “Orphans’ Courts.” The qualifications for judges set forth in § 2 are that they “be citizens of the State of Maryland, and qualified voters under this Constitution,” and that they “shall have resided therein not less than five years, and not less than six months next preceding their election, or appointment, as the case may be, [in the area of the State from which it is mandated that] they may be, respectively, elected or appointed.” They are to be “not less than thirty years of age at the time of their election or appointment” and they are to “be selected from those who have been admitted to practice law . in- this State, and who are most distinguished for integrity, wisdom and sound legal knowledge.” The requirements of § 40, however, are that the “Judges of the Orphans’ Courts ... be citizens of the State, and residents for the twelve months preceding, in