Kenneweg v. County Commissioners of Allegany County

McSherry, C. J., delivered the opinion of the Court. The bill of complaint which inaugurated this proceeding was filed by the appellant against the appellees on the equity side of the Circuit Court for Allegany County on the twenty-eighth day of April, 1905. It was demurred to, the demurrer was sustained, the bill was dismissed, and from that decretal order the pending appeal was taken. The appellant is a taxpayer in and a resident of Allegany County and pays taxes on property owned by him and assessed to the value of six thousand dollars.

He complains that the -appellees — the County Commissioners — have levied upon the taxable property in said county the sum of two thousand dollars, to be included in the general levy of said county for the year 1905— 1906 for the purpose of defraying the expenses of holding primary elections during the month of September, 1905, for the nomination of State and County officers to be voted for at the general election to be held in November following: That the levy of the above-named sum was made under a pretended authority supposed to be contained in Chapter 508 of the Acts of the General Assembly of 1904. That the Act just indicated does not authorize the County Commissioners to make the levy in question; and that the Act is null, void and unconstitutional. The bill prays that an injunction may be issued restraining the County Commissioners “from levying or causing to be collected from the taxpayers of the county the said sum of two thousand dollars, or any part thereof for the illegal purposes aforesaid.” The appellant does not sue iri behalf of himself and other taxpayers who may be similarly situated, and who may come in and make themselves parties to the cause, but he sues alone in his own name and his own behalf. Laying aside for the moment, the question as to whether he has shown on the ¹²² face of the .bill, such a pecuniary interest as is required to give a Court of equity jurisdiction in the premises, we turn to the main and important inquiry involving the constitutionality of the statute.

And in doing so we pass by, for the present, the subsidiary objection as to the lack of authority on the part of the commissioners to make the levy, because a few references later on to the provisions of the Act and of the Code of Public General Laws will refute this objection completely. Had the General Assembly the power to adopt the Act of 1904., ch. 508? In a word is the Act in conflict with any provision of the State or the Federal Constitution? The Act is an Act amendatory of the Public Local Laws of Allegany County., and-relates exclusively to the holding of primary elections in that county by the two leading political parties for the selection of candidates to be voted for at ensuing State and Congressional elections.

It places safeguards around and gives legal sanction to these primary contests. It prescribes how nominations are to be made by popular vote; how and upon what conditions candidates may enter those contests, and in what manner and at what times the votes cast thereat shall be counted, and how the results shall be ascertained and certified. Elaboi-ate details — not always consistent or harmonious, perhaps — are prescribed with reference to the conduct of the primaries; and the duties imposed upon the county committees of the two political parties as well as the duties assigned to the election supervisors are set forth with much prolixity, though not always with .very great clearness. To state more at large the numerous provisions of the statute would necessitate a transcription of all its terms.

Enough has been said to indicate the character, the scope and the object, but not the minute provisions of this legislation; and we now repeat the question, Had the General Assembly the power to adopt it? The General Assembly possesses all legislative power and authority except in such instances, and to such extent as the Constitutions of the State and of the United States have imposed limitations and restrains thereon. In this respect the ¹²³ Legislature differs from the Congress of the United States which has, and can exercise, only such power as the Federal Constitution expressly or by necessary implication confers upon it. In the General Assembly plenary power to legislate is vested, unless restrained by the Constitution.

In the Congress the power to legislate is not vested, unless confided by the Federal Constitution. In the State Constitution we look, not for the power of the General Assembly to adopt an enactment, but for a prohibition against its adoption. In the Federal Constitution we look, not for the prohibition, but for the delegated power to enact a measure. The General Assembly being, then, the depository of all legislative power, except when restrained by the organic law, it follows that it is clothed with full power to enact a primary election law, if there is no provision in the Constitution depriving it of that authority.

There is no such provision to be found in the Constitution of the State. It is true that sec. 42 of Art. j of the Constitution provides: “The General Assembly shall pass laws for the preservation of the purity of elections;” but the power to enact a primary election law lies back of and beyond this provision and is not derived from it at all. The power to legislate in regard to elections — primary or general — if unrestrained by the Constitution itself is inherent in the General Assembly, and the provision just cited instead of conferring the power is a mandate to execute a power implicitly assumed to exist independently of the mandate. “The General Assembly shall pass laws,” is a direction to bring into activity an antecedent and independent authority. The power, then, to enact a primary election law being inherent in the Legislature it only remains to inquire whether in the execution of that power the General Assembly has, by the Act in question, infringed upon or broken through some inhibitory provision of the organic law.

No section or clause of the Act has been pointed out as in conflict with any particular or designated prohibition ; and a careful reading of the statute has not disclosed to us the existence of such an antagonism. Whilst this is true it has been contended that the Act ¹²⁴ is void because it undertakes to add a property qualification for holding public office which is not contained in the Constitution ; and this contention is based upon sec. 112 of the Act. By the' section just named, it is provided that each person who desires to become a candidate for nomination shall pay to the chairman of the committee of the party to which he belongs a certain fee, the amount of which is regulated for the different offices by the section in question; which fees- are to be used exclusively as a fund to defray the expenses of announcing candidates, printing ballots, furnishing blanks, and other necessary expenses for holding and conducting the primary election, and for paying such expenses of the return judges as may be determined by the convention of return judges. Now, the exaction of the fee is, by no means, the imposition of a property qualification on the candidates.

Primary contests necessarily require the expenditure of money for the purposes just indicated; and the money must be [procured from some source. The requirement that the individuals, who, through the primaries, seek to secure nomination shall pay the expenses which the governing body of their party are compelled to incur for their benefit and in their behalf, is neither unreasonable nor unjust and most certainly is not the superaddition of a property qualification for holding the offices to which they aspire. The appellant insists that the Act is against public policy and contrary to the fundamental priciples of justice; but if this contention were conceded — and it is not — the ground of assault would be shifted to an entirely different position from the one of its alleged unconstitutionality. What public policy is invaded by it?

No exact definition of public policy has ever been given, or can be found. In Richardson v. Mellish, 2 Bing. 229, Mr. Justice Burroughs pointedly observed: ‘T for one protest against arguing too strongly upon public policy; it is a very unruly horse, and when'"once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when all other points fail.” We do not deem it necessary to ¹²⁵ go into a consideration of the several particulars in respect of which it is asserted public policy is violated by the Act; because, first, we are at a loss to know what public policy is invaded; and secondly because, public policy of itself and without having its foundation in some constitutional provision can neither circumscribe nor restrain the legislative authority of the General Assembly.

We cannot undertake to declare the statute unconstitutional merely because it is assumed to be at variance with some undefined and indeterminate public policy, which at best is but a shifting and variable notion appealed to only when no other argument is available, and which, if relied on today, may be utterly repudiated tomorrow. The great case of the Regents of the University of Maryland v. Williams, 9 G. & J. 365 , is relied on to support the contention that the Act of 1904, ch. 508, is contrary to the fundamental principles of right and justice and is, therefore,void; but the case is not applicable. The question there involved and discussed and actually decided was whether the Act of 1825, ch. 190, was void because it impaired the obligation of the contract created by the prior Act of 1812, ch. 159, which incorporated the Regents of the University of Maryland. The conclusion reached by this Court is thus stated in the elaborate judgment delivered by the late Chief Judge Buchanan : “This brief view of the character and legal effect of the Act incorporating the Regents of the University, results in the opinion, that it is a contract protected by the Constitution of the United States, the obligation of which cannot be impaired by any Act of the Legislature of the State, without the assent of the corporation; and leads to the conclusion, consequent upon that opinion, that the Act of 1825, ch. spo, is repugnant to that instrument, and therefore void.” After pointing out the particulars wherein the repugnancy consisted, the Court proceeded to say: “But the objection to the validity of the Act of 1825 does not rest alone for support upon the construction of the Constitution of the