Mayor of Baltimore v. Board of Supervisors of Elections

¹⁹⁷ Urner, J., delivered the opinion of the Oonrt. It is provided by the Constitution of Maryland, in section 7 of article 11, that, except for temporary and emergency purposes, arising from a deficiency in the city treasury, or the necessity of maintaining1 the police or preserving the safety and sanitary condition of the city, no debt “shall be created by the Mayor and City Council of Baltimore,” unless it “be authorized by an Act of the General Assembly of Maryland, and, by an ordinance of the Mayor and City Council of Baltimore, submitted to the legal voters of the City of Baltimore, at such time and place as may be fixed by said ordinance, and approved by a majority of the votes cast at such time and place.” Ordinance Ho. 537 of the Mayor and City Council of Baltimore provided for the creation of a public debt of the municipality to an amount not exceeding $2,500,000, in the event that the ordinance should be approved by a majority of the legal votes cast at the election to be held in the city on Hovember 6th, 1928, and if the proposed indebtedness should also be authorized by an Act of the General Assembly at its session in the year 1929. The Supervisors of Elections declined, on the advice of the Attorney General, to print on the ballots for use at the election of Hovember 6, 1928, the question designed by the ordinance to be submitted to the voters of the city, because the Legislature had not authorized the creation of the debt for which the ordinance made provision. In this mandamus suit the refusal of the supervisors to submit the ordinance to the voters was held by the lower court to have been justified, and on appeal its decision was affirmed by a per cumam order.

The desire of the city government was to utilize the election of 1928 for the intended referendum in order to avoid the expense of holding a special electi&n for that purpose after the 1929 session of the General Assembly, if the ordinance received its sanction, or a delay of nearly two years until the next general election afforded such an opportunity. It is unfortunate that this desire could not be gratified. But ¹⁹⁸ the duty of the courts is to give due regard and effect to the constitutional limitation to which the asserted right is subject. It was the city’s theory that the purpose of the Constitution to require the dual sanction of the General Assembly and of the voters of Baltimore for the creation of a municipal debt could be validly accomplished by a declaration of legislative approval made after the will of the voters on the subject had been ascertained.

This view finds ím support in the literal terms of the requirement, and, in our judgment, is not in accord with its real intent. The prescribed conditions for the valid creation of such a debt are authorizations by an act of the General Assembly, and by an ordinance submitted to and approved by the voters. The referendum is both nominally and logically the final act in the requisite series of approvals. It is the usual purpose of a referendum to obtain an expression of the popular will as an ultimate decision of the question submitted.

If the order of approval indicated in the Constitution should be reversed by a postponement of the legislative action until the issue had been presented at the polls, the sanction of the voters would not be final and conclusive but would be possibly futile. Its effect would be contingent upon the result of the subsequent exercise of legislative judgment upon the proposal. That judgment was, of course, intended to be discriminating and not perfunctory. The duty imposed upon the General Assembly was to decide independently whether a municipal loan for a particular purpose and amount should be authorized.

The performance of such a duty might be embarrassed if the