Leser v. Board of Registry

Offutt, T., delivered the opinion of the Court. O'eeelia Street Waters, a white woman, and Mary D. Randolph, a colored woman, both citizens of Maryland, applied ⁵³ on October 12th, 1920, to the Board of Registry of the1 Seventh Precinct of the Eleventh, Ward of Baltimore City .for registration as, quali fied voters therein. Aside from their sex, the applicants possessed the qualifications prescribed by the Constitution and laws of this State entitling them to the registration for which they applied. At the time they applied for registration, Mr. Oscar Leser, on his own behalf, and on behalf of the Maryland League for State Defense, challenged the right of each of the applicants to register as a qualified voter, on the grounds, first, that the applicants were female citizens of the State, whereas, the Constitution of Maryland confined the right of suffrage to males, and second, that neither of them was entitled to register under the Nineteenth Amendment to the Constitution of the United States, because that amendment had never been “legally proposed, ratified or adopted as a part of the Constitution,” and was invalid because it was. “in excess of any power ix> amend the Constitution of the United States* conferred by the provisions of Article 5” of that Constitution.

The challenges were overruled and the applicants duly registered. Thereafter, on October 30th, 1920, Mr. Leser, and other-citizens of Maryland, who were also, members of the Board of Managers of the- Maryland League for State Defense, filed a-petition in the Court of Common Pleas of Baltimore City, in which the petitioners stated that they were aggrieved by the action of the Board of Registry in registering the names of the two women to whom we have referred, and asked that their names be stricken from the registry of voters of the precinct in which they were registered. In this petition the petitioners rest their claim for relief upon the following grounds! r. Pirst: “The said alleged amendment' to the United States Constitution is not such an amendment as the Congress is authorized by Article Y of the Constitution of the United States to propose to the legislatures of the several states to be by them ratified in accordance with said Article Y, but is wholly outside of the scope and purpose of the amending power conferred upon ⁵⁴ Congress, subject to tbe ratification by three-fourths of the State Legislatures, by the said Article, as is more fully and expressly set forth in the resolution of tbe General Assembly of Maryland rejecting and refusing to ratify the said amendment at tbe January Session of 1920.” Second: “That tbe said alleged nineteenth Amendment to tbe Constitution of tbe United States was never in fact ratified by tbe Legislatures of three-fourths of the States now composing the United States of America, the proclamation dated August , 1920, by the Honorable Bainbridge Colby, Secretary of State of tbe United States, to tbe contrary notwithstanding. “(a) Because of tbe fact that it was not ratified by the Legislature of tbe State of West Virginia, but on tbe contrary was defeated and rejected by tbe said Legislature.” Third: “And because although tbe Legislature of. tbe State of Missouri undertook to pass a resolution ratifying tbe said measure, nevertheless it was forbidden to do so by the following provision of the Constitution of tbe State of Missouri: “ Article II, Section 3 — We declare, That Missouri is a free and independent state, subject only to tbe Constitution of tbe United States; and as the preservation of tbe states and tbe maintenance of their governments are necessary to an indestructible Union, and were intended to coexist with it, tbe legislature is not authorized to adopt nor will tbe people of this state ever assent to any amendment or change to the Constitution of tbe United States which may in any wise impair tbe right of local self-government belonging to tbe people of this state.’ ” Fourth: “Because the Legislature of tbe State of Tennessee, being a body corporate created under and in pursuance of tbe constitution of tbe said state and subject to tbe limitation therein expressed, undertook to act upon a resolution purporting to ratify tbe said alleged nineteenth Amendment, yet its action in the premises was null and void for tbe reason that the mem ⁵⁵ bers of the said legislature were elected prior to the submission of the said amendment by Congress to the legislatures of the several states, and therefore by the provisions of the Constitution of the State of Tennessee, the said existing legislature was prohibited from acting upon said alleged amendment.

The provision of said Constitution being as follows: “ ‘No convention or General Assembly shall act upon any amendment of the Constitution of the United States proposed by Congress to the several states, unless sncli convention or General Assembly shall have been elected after such amendment has been submitted.’ “And because even if the Legislature of the State of Tennessee at its session held in the month of August, 1920, were competent to act in the matter of ratification of the said amendment to the Constitution of the United States, the said legislature did not pass any resolution ratifying the said alleged Nineteenth Amendment, but did, in fact, defeat and reject such resolution.” And Fifth: “That in a number of the states of the American Union, including the States of Massachusetts, New Jersey, Pennsylvania, Khode Island, Arkansas, Maine, New Hampshire, Ohio, Iowa, Nebraska, Missouri, Texas, Kentucky and others, the people have seen fit to provide in their state constitutions that the rights and duties pertaining to tile elective franchise shall be limited to men. In these states the people have also provided that no changes should he made in their state constitutions by any act or resolution of their state legislatures and have thereby in effect forbidden their said respective state legislatures to vote for the ratification of any proposed amendment to the Constitution of the United States which would have the effect of abolishing or changing the Constitution of the state.” In answer to this petition the respondents asserted, first, that the court, was without jurisdiction to determine “the matters alleged in said petition, because io do so would he to ⁵⁶ clen.y full faith and credit in this State to the public Acts, Eceords, and Judicial Proceedings of other States, in violation of Section 1 of Article 4 of the Constitution of the United States, and to question the validity of an official act duly performed by the Secretary of State of the United States,” and because no application was ever made to- the appellees to strike from the list of persons registered as qualified voters the two women alleged to have improperly registered, nor were their names placed upon the “suspected” list, nor any “other legal proceeding taken” before the appellees to prevent the registration of said persons or to strike their names from the list of qualified voters in said precinct, nor any hearing had before the appellees in reference to the right of the persons named to register in said precinct, and second, that the two women were not disqualified under the Constitution of the State of Maryland, or of the United States from voting at any ’eleo tion hereafter to be held. Testimony was offered in support of the petition, and thirteen prayers presenting the legal propositions advanced by the appellants submitted, and after a hearing these prayers were refused and the petition dismissed. From that order this appeal was taken.

The substantial questions presented by the appeal are, first, whether the Court of Common Pleas of Baltimore City had jurisdiction to pass upon the matters contained in the petition; and second, whether the Nineteenth Amendment of the Constitution of the United States was validly adopted and ratified and is binding upon the several States of the Union and the people thereof, and we will consider these questions in the order in which we have stated them. The appellee contended that “the court was without jurisdiction to entertain the petition because the petitioners did-not bring themselves within the provisions of the election law authorizing petitions to strike names from the books of registry, and because it does not appear that any summons was served upon either of the persons registered,” but we are un ⁵⁷ able to assent to the proposition thus stated, nor do we regard the decisions of this Court cited in support of it as applicable to the facts of this case. Those facts are that when the two women to whom we have referred applied to the Board of Registry to be registered as qualified voters', Mr. Oscar Leser, a citizen of Maryland and a resident of Baltimore Oity, in their presence challenged their right to register, and filed at the same time with the Board of Registry a written, memorandum of the grounds of the challenge, and thereupon “the board conferred and announced a decision overruling” the challenge and allowed the applicants to register, and a formal entry was made on the registration book of the challenge, the filing of the memorándum and the action of the board thereon. Section 19, Article 33, Code Public General Laws, which provides that “any voter shall be permitted to be present at the place of registration in any precinct of his county or city, and shall have the right to challenge any applicant, and when challenged such applicant shall be carefully questioned by the Board of Registry touching the facts which entitle him to register in such precinct, and thereupon, if a majority of the board is convinced that such applicant is a qualified voter, he shall he entered as qualified,” was obviously designed to permit the very procedure which w’as adopted in this case.

Indeed no other conclusion can be readied unless the plain and explicit language of that section is disregarded. Its purpose is to afford an opportunity for objection to the registration of a voter before his name has been placed on the registration book, while Section 20 of the same article which provides that: “If any voter of the ward or county shall go before the Board of Registry during such sessions and make oath that he believes any specified person upon such registry is not a qualified voter, such fact shall be noted,” is designed to' supply in part the procedure for striking off the name of a voter after it has been placed on the register. LTor is there anything in the history or the position of the section to indicate that its application is not general, and the right to object to the ⁵⁸ registration of a disqualified person at the time of his application must have been within the contemplation of the Legislature, when it provided in Section 25 of the same Act that “any person who- feels aggrieved by the action of any Board of Registry in refusing to- register him as a qualified voter, or in erasing or misspelling his name, or that of any other person on the registry, or in registering or failing to erase the name of any fictitious, deceased or disqualified person, may at any time, either before or after the last session of the Board of Registry, but not later than the Saturday next preceding the election, if in the City of Baltimore, and not later than the Tuesday next preceding the election, if in the counties^ file a petition, verified by affidavit, in the Circuit Court for the county, or if the cause of complaint arises in Baltimore City, in any court of Baltimore City, setting forth the ground of his application, and asking to have the registry corrected.” And that section was designed to- protect the right created by Section 19,-Ibid., by allowing a review of the action of the Board of-Registry in regard toi it. jSTo-r are the oases to which our attention has been called in conflict with this view. In Collier v. Carter, 100 Md. 381 , the petition was filed for the purpose of having the name of one Brady, which was on the registration lists as that of a qualified voter, stricken therefrom.

It contained “no suggestion of having for its object a review of any action taken or judgment rendered elsewhere,” but in effect asked the court to exercise an original and not an appellate jurisdiction. And in Wilson v. Carter, 103 Md. 120 , the facts were that the Board of Registry refused at the request of one of its members to place the name of a registered voter on the “suspected list” and “refused to take any action whatever” upon the request, and their non action was the basis of the petition in that case. The reason given for the request was that the- building given as the residence o-f the voter was burned down, but there was no affidavit or other proof of that fact as required by Section 20 in' such oases, nor was there any hearing upon the re ⁵⁹ quest. In Smith v. McCormick, 105 Md. 224 , a petition was filed to strike the name of Thomas Carney from the registration lists of Baltimore Oity on the ground that he was not a qualified voter, and it appeared that his name had never been put on the “suspected list,” and that his. right to register had never been brought, to the attention of the Board of Registry of the precinct in which he was registered and that no action was taken by that board as to it, and in Hanson v. Daly, 129 Md. 288 , in which the petition was filed to have the name of Harry I. Daly stricken from the registration lists of Baltimore City on the grounds that he was not a qualified voter, it appeared that his name had never been placed on the suspected list, but it did not appear that any objection to his right to register had ever been made to the Board of Registry.

The reason for the decision in each of those cases was very plainly stated by this Court, speaking through Judge Burke, in Smith v. McCormick, 105 Md. 226 , in which it said, “the courts have been uniform in holding, that their jurisdiction in such matters was appellate, and not original, and that unless there was some action taken by the officers of registration upon objections properly before them as to the registration of a disqualified person the court was without power to review or correct any error committed by those officers.” But in this, case it does clearly appear that the objection to the registrar tion of the applicants was. brought directly to the attention of the board and that they formally acted on it. Hor is there any force in the contention that the applicants had no. notice. They needed no formal notice because they were present and participated in the proceeding. The section itself does not provide for any notice, because under it the challenge is. made in the presence of the1 applicant and before he registers.

Under such circumstances any other or further notice Would bo an idle and meaningless, ceremony. For the reasons assigned we are of the opinion that the Court of Common Pleas did have jurisdiction in this case. This brings us to the consideration of the second and prin ⁶⁰ cipal question presented by the appeál, and that is, whether the nineteenth Amendment of the Constitution of the United States was validly adopted and ratified and is binding upon the several states of the Union and the people thereof. In the beginning, it may be well to restate what has become trite from over repetition — the functions, the powers, and the limitations of this Court in dealing with such questions.

This is a court of law. Its function is to ascertain, state and apply the law in its relation to facts involved in litigation before it. It is authorized to interpret and 'apply the principles of existing law. But whilst it may apply old and long established principles to new uses, it cannot make new law.

Ebr can it do what is in effect the same thing, — modify, amend or repeal existing law. In the exercise of these duties and functions, this Court must concede to the Constitution and statutes of the United States, and the decisions of the Supreme Court construing the same, a binding and permanent force as have, when not in conflict with the Eederal Constitution, the Constitution and laws of this State, and the decisions of this Court in dealing with them. With the wisdom, the expediency or the effect of such laws we have properly nothing to do, except in so far as those considerations may aid in the construction of the law. In dealing, therefore, with this question we are constrained to look only at what the law is, and not at the effect of the law, and whether the Constitution has by a series of amendments been changed from a guarantee of the form and permanency of our government, or whether those amendments do change the form of our government, as was argued, are considerations which, while of profound interest to all citizens, nevertheless cannot affect our judgment as to the validity of the amendment.

Whether a thing is wise or unwise is one thing, whether it is unlawful is another. The determination of the first question is for the legislature and of the .second for the courts. We have re-stated these principles, which have been so frequently laid down by this Court, because we are asked in this case, in effect, to assume and ⁶¹ exercise a power essentially legislative in character, and to go heyond the letter of the amending clause of the Constitution, and to read into it an implied prohibition limiting and restricting its application. We will now turn to the main question and that is, whether the Nineteenth Amendment to the Constitution was validly adopted and ratified.

The appellants contend that it was not, and in support of that contention they submit two propositions, — one, that it was not within the amending power of the Constitution, and the other that, if it is within such power, it was not ratified by-the requisite number of states. In dealing with the first of these propositions, we are met at the threshold of our inquiry by the fact that the Supreme Court has in effect passed upon the proposition and has found it untenable and unsound, and whatever may he the powers of that court in regard to correcting and overruling its own decisions relating to the construction or the interpretation of the Constitution of the United States, manifestly this Court is without any such power, hut on the contrary it must recognize the binding force of such decisions and be controlled by them. Tlie Fifteenth Amendment provides that, “The right of citizens of the United States to vote shall not he denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.” It was proposed to the legislatures of the several states on February 27, 1869, and was declared, on March 30, 1870, to have been ratified by twenty-nine of the thirty-seven states. The Nineteenth Amendment provides that, “The right of citizens of the United States to vote shall not he denied or abridged by the United States or by any state on account of sex,” and was on August 26, 1920, declared to have been ratified by tliirty-six of the forty-eight states.

The only difference between the two amendments is that, while the Fifteenth Amendment prohibits discrimination by the states or the nation against citizens in regard to suffrage on account ⁶² of “race, color or previous condition of servitude,” the Nineteenth Amendment forbids such discrimination on account of “sex.” In other words, it but adds the word “sex” to the words “race, color or'previous condition of servitude,” occurring in the clause of the Fifteenth Amendment which forbids discrimination against certain classes of citizens in regard to their right to vote, and thus brings another class of citizens within the reach of the prohibition against discrimination on the part of the states or of the United States in conferring the right of suffrage. If, therefore, the Fifteenth Amendment was a valid exercise of the amending power, it is impossible to conceive that the Nineteenth Amendment was not likewise a valid exercise of that power, because it is not possible to distinguish the two in principle. But the Fifteenth Amendment has been repeatedly recognized by the Supreme Court as within the amending power and treated as an integral part of the Constitutioff. In U. S. v. Reese, 92 U. S. 214 , in which two election officials were indicted for refusing to receive and count the vote of a citizen of the United States of African descent at a municipal election, that Court in 1815 said: “The Fifteenth Amendment does not confer the right of suffrage upon anyone.

It prevents the states, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another, on account of race, color or previous condition of servitude. Before its adoption this could be done. It was as much within the power of a state to exclude citizens of the United States from voting on account of race, etc., as it was on account of age, property or education. Now it is not.

If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination; now there is. It follows that the amendment has invested the citizens of the United States ⁶³ with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color or previous condition of servitude.” And in Neal v. Delaware, 103 U. S. 370 (1881), a case in which a colored man, indicted in the State of Delaware for a crime punishable by death, sought to have his case removed to a Federal court on the ground that, as the Constitution of Delaware restricted the right of suffrage to “white” male citizens, and that as the members, of the grand jury which indicted him and the petit jury which had been summoned to try him were in practice taken from the list of