Ness v. Supervisors of Elections

Bond, C. J., delivered the opinion of the Court. The appeal in this ease was disposed of by an order affirming the order of the trial court, without an opinion at the time explaining the decision, because it was desirable that a question raised as to the legality of a referendum vote arranged to be taken at an early date be answered without any delay that might be avoided. The present opinion is the explanation of the decision already announced, and of the order in pursuance of it. At the session of 1931, the General Assembly passed an act, chapter 287, to except Baltimore City from the operation of the state law regulating Sunday observance (Code, art. 27, secs. 483, 484, and 485), upon the passage of a municipal ordinance to govern the subject in the city, and upon the approval of that ordinance by popular vote in the city.

And the validity of the act, and of an ordinance passed under it (No. 130 of 1932), are questioned in this proceeding. The first section of the act has provided generally that the Mayor and City Council of Baltimore, in furtherance of the principle of home rule, and for the purpose of promoting reasonable and proper observance of Sunday, shall have power to regulate by ordinance amusements, entertainments, and games, and the sale of articles of merchandise at retail on that day. The second section has provided that no ordinance passed in the exercise of that grant of power shall take effect until it has “first been submitted to the qualified voters of the City of Baltimore at either a general or special election, State or municipal, and * * * approved by a majority of the voters voting thereon.” The Mayor and City Council are authorized and empowered “to determine the time, place and manner for the submission of any such ordinance to the ⁵³² qualified voters, and for the voting thereon and for ascertaining the results,” and for that purpose to use the registration list, books, ballot boxes, and other election paraphernalia and agencies of the board of supervisors of elections of the city. “In the case of a special election the general election law of the State, wherever applicable, shall likewise apply.” The third section has enacted that the general Sunday law of the state shall not apply to the city, but shall be repealed in so far as it has prohibited amusements, entertainments, and' games, and retail sales of merchandise in the city on Sunday, with the proviso that the repeal shall not take effect until after a city ordinance passed in pursuance of the grant of power in section 1. of the act of assembly shall be approved by the popular vote provided for in section 2. Section 4 repeals all inconsistent laws or parts of laws to the extent of the inconsistency.

In pursuance of that act, an ordinance, No. 130, approved Eebruary 15th, 1932, has been duly passed by the municipality, with a provision that it be submitted to- the voters at a special election on May 2nd, 1932, the day fixed by law for the holding of primary elections in the state. Separate ballots for the vote on the approval or disapproval of the ordinance, upon paper of a' distinctive color, are to be prepared and used. The ordinance by its terms has provided that specified amusements, games, and sports for profit shall be permitted after 2 o’clock P. M. on Sundays, and, when for recreation only and not for profit, these and others shall bo permitted at any hours on Sundays. Retail sales are likewise to be permitted within restrictions.

The appellants filed a petition for the writ of mandamus to prevent the supervisors of elections from proceeding with the preparation of ballots and the taking of the vote on the ordinance; the supervisors answered, questioning the qualifications of the petitioners as suitors, and, while conceding the essential facts alleged in the petition, contested the conclusions of law and the claims based upon them; the petitioners replied, in effect joining issue on the controverted questions of fact, those' of the qualifications of the suitors, and de ⁵³³ murring to the contentions of law in the answer in a series, of formal denials of their validity. The trial court, as the tribunal on the facts, upheld the qualifications of the petitioners, but, disagreeing with their contentions on the law, held that the act of assembly and the ordinance were valid, and therefore overruled the petitioners’ demurrers, dismissed their petition, and entered a judgment for the respondents, for costs. And this court on appeal has concurred in the rulings on the law, upon the reasoning to be stated. Attacking the ordinance, the appellants object, first, that the taking of the vote on the day of the primary election is illegal.

Regarding the provisions in the authorizing act of assembly as restricting the taking of the vote to a regular state or municipal election, general or special, it is contended that the choice of this day does not comply with those provisions, because the primary election is not such a general or special election, state or municipal. Further, it is contended that, as there is no provision in the charter of the city for holding a special election, the city cannot be given the power to hold one without an amendment of its charter under the Home Rule Amendment of the Constitution (article 11 A). The first argument seems to confine the meaning of the statute too narrowly. Its language leaves no room for doubt that the city is intended to be given power to take the vote at an election of any description, when and as it may choose, for the approval or disapproval of the ordinance.

That construction follows from the express authority “to determine the time, place and manner for the submission of the ordinance.” And there seems to be no legal obstacle to taking this special vote on the ordinance simultaneously with the holding of the primary election. In Levering v. Board of Supervisors, 129 Md. 335, 339 , 99 A. 360, 361 , the court considered an act of assembly which provided for submission of an ordinance to the voters of the city “at sirch time and place as may be fixed by said ordinance,” and found that this “conferred unlimited discretion upon the mayor and city council as to the selection of the time and place for securing an expression from the voters upon questions of the character just indi ⁵³⁴ cated.” And, said the court, further, “by virtue of this ample authorization, and in accordance with the terms of particular statutes referring to the constitutional provision we have cited, numerous questions relating to loans and appropriations * * * have been submitted at general elections to the voters of Baltimore City. The ordinances which have appointed a general election as the occasion for taking the vote required by the Constitution, in the instances specified, have been passed in the exercise of an unqualified power expressly conferred.” And the present selection of the primary election day seems fully as well supported by the authority given. It may be true, as is argued, that some difficulties will be experienced in carrying on the special election on the ordinance in accordance with the general election law of the state, wherever applicable, and in conjunction with a primary election which is governed by somewhat different regulations, but the difficulties, if they exist, would seem to be practical rather than legal.

At least no legal question can be foreseen as sure to arise out of the effort. And the authority so given is legal, we think, even if not clothed in the form of an addition to the general charter powers of the city, in accordance with requirements of the Constitution, article 11 A, for the election authorized is to be only a step in the adoption of the particular ordinance, and not one in the exercise of a power of governmental regulation of the affairs of the city, to which the constitutional clause applies. State v. Stewart, 152 Md. 419 , 137 A. 39 . Considering the act of assembly as an attempt at enlargement or extension of the powers of the city, it is contended that it is invalid because it has not conformed to the limits imposed upon legislative action in the field of local law by this Home Rule Amendment to the Constitution (article 11A).

As this court had occasion to declare in State v. Stewart, 152 Md. 419 , 137 A. 39 , once the city had accepted a charter under that amendment, the General Assembly could no longer pass local laws upon subjects included within the power's specified in the charter as those to be exercised by the city, but could only enlarge, diminish, or change the ⁵³⁵ grants of such powers. It could not share one of the granted fields of local la.w with the city, hut could only change the right to those fields or parts of them, as between the State and the city. And it is now contended that this present act of 1931 attempts to provide, for local regulation without changing the grant of power over the field. The contention is