Norris v. Mayor of Baltimore

⁶⁷³ Offutt, J., delivered the opinion of the Court. The Maryland Legislature by chapter 513 of the Acts of 1914, codified as article 33, sections 222, 223, and 224, Code, authorized the election supervisors of Baltimore City, and the election supervisors of the several counties of Maryland, to use voting machines in primary and general elections under such rules and regulations as such supervisors might deem advisable or necessary. The supervisors for the city and for the counties respectively were also authorized to determine what election precincts should first be equipped with voting machines, and empowered to purchase such machines as they might deem advisable. Code (Supp. 1935) art. 33, sec. 224A.

By chapter 228 of the Acts of 1933 (Code [Slupp. 1935] art. 33, sec. 224A), the election supervisors of Baltimore City were “directed” to use certain voting machines theretofore purchased by the Mayor and City Council of Baltimore “in all future elections.” By chapter 532, sections 224B, 224C, and 224D, Acts of 1935 (Code [Supp. 1935] art. 33, secs. 224B, 224C, and 224D), the election supervisors of Montgomery County, with the approval of the board of county commissioners of that county, were authorized to secure and use in two of the election districts of that county similar machines. These several statutes were obviously steps in an experiment which was being carried on to test the wisdom and the expediency of substituting voting by machine for the older system, formerly uniform throughout the state, of voting by paper ballots. Following the experience obtained from the operation of those laws, the Legislature, by chapter 94, Acts of 1937, directed (a) the board of election supervisors of Baltimore City in all future elections to use the voting machines theretofore purchased by the Mayor and City Council of Baltimore; and (b) authorized, directed, and empowered a board, composed of the members of the board of estimates and the board of election supervisors, “to purchase a sufficient number of voting machines for use in all polling places throughput the City of Baltimore at all pri ⁶⁷⁴ mary, general, special and other elections, held or to be held in said City after the 1st day of January, 1938. The expenses incurred by said Board and the cost of such voting machines shall, upon the requisition of said Board, be audited by the Comptroller of Baltimore City, who shall pay the same by warrant drawn upon the proper officers of said City.” Section 224A.

Section 4, the concluding section of the act, provided: “That the Act is hereby declared to be an emergency law within the scope and meaning of Chapter 5 of the Laws of Maryland, Special Session 1936, and necessary as a police measure for the immediate regulation of elections in Baltimore City; and having been passed by ‘yea’ and ‘nay’ vote supported by three-fifths of all of the members elected to each of the two Houses of the General Assembly, the same shall take effect from the date of its passage.” The act was approved and became effective on March 24th, 1937. In obedience to the mandate of the act, the Mayor and City Council of Baltimore, by Ordinance No. 694, approved April 13th, 1937, authorized the Mayor and City Council of Baltimore to issue “negotiable or non-negotiable obligations” to an amount “not exceeding” $1,250,-000, to meet requisitions of the said board made under the authority and direction of chapter 94, Acts 1937. On April 13th, 1937, William C. Norris, suing as a taxpayer of Baltimore City, filed in Circuit Court No. 2 of Baltimore City the bill of complaint in this case against the Mayor and City Council of Baltimore City, in which he .prayed that Ordinance No. 694 be declared invalid, that chapter 94 of the Acts of 1937 be declared to be unconstitutional, and that the defendants be permanently enjoined from issuing obligations of the said city as provided by Ordinance No. 694. A demurrer to that bill was sustained and the bill dismissed.

From that decree Norris, and one Eleanor E. Smith, an intervening plaintiff, appealed. The grounds alleged as a basis for the relief sought by the appellants are: (1) That the act violates article ⁶⁷⁵ 1, section 1, of the Maryland Constitution, which requires that all elections shall be by ballot; (2) that it is a special law passed for a case for which provision has been made by an existing general law; (3) that the emergency provision of the act violates the referendum article of the Maryland Constitution, article 16, section 2 ; (4) that the ordinance is void because it is an attempt to borrow money on the city’s credit without a “prior enabling act or submission to the voters of the city,” in violation of article 11, section 7, of the Maryland Constitution; and (5) that the ordinance is void because it fails to provide for the discharge of the debt authorized within forty years, as required by article 11, section 7, of the Maryland Constitution and section 25-B of the Charter of Baltimore City (Code Pub. Loc. Laws 1930, art. 4, sec. 25-B, as added by Laws 1936, 1st Sp.

Sess., ch. 5). The appellants assert the affirmative of those propositions, the appellee the negative. Since the validity of the act in no wise depends upon the validity of the ordinance, while the validity of the ordinance does depend upon the validity of the act, the objections to the act will be considered first, and in the order in which they have been named. Election by ballot.

Much interesting and useful learning has been invoked in aid of the contention that voting by machine in public elections is prohibited as a substitute for voting by ballot by the Constitution of Maryland, art. 1, sec. 1, but in the main the argument ignores the rule which above all others gives life to the written law and makes its use possible for the government and control of men in carrying on the actual business of life, and that is that, while the principles of the Constitution are unchangeable, in interpreting the language by which they are expressed it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee. 6 It. C. L., “Constitutional Law,” sec. 40. So it has been said that “a constitution ⁶⁷⁶ is to be interpreted by the spirit which vivifies, and not by the letter which killeth.” Ibid. Nevertheless it is axiomatic that, where the language of a constitution is clear and unambiguous, there can be no resort to construction to attribute to the founders a purpose or intent not manifest in its letter.

Cooley on Constitutional Limitations 124 et seq. But where the meaning of the words employed is susceptible of expansion so as to include a significance in complete harmony with the spirit and purpose of the instrument, which will gratify a legislative intent or serve a present need, they may be so interpreted, for it is an accepted canon of constitutional construction that such instruments are to be liberally construed to accomplish the purpose for which they were adopted. In determining the true meaning of the language used, the courts may consider the mischief at which the provision was- aimed, the remedy, the temper and spirit of the people at the time it was framed, the common usage well known to the people, and the history of the growth or evolution of the particular provision under consideration. Since constitutions are the basic and organic law, and are meant to be known and understood by all the people, the words used should be given the meaning which would be given to them in common and ordinary usage by the average man in interpreting them in relation to every day affairs. 6 B. C. L., “Constitutional Law,” chapter V; Cooley on Const.

Lim. ch. IV; 12 C. J., “Constitutional Law,” secs. 41-48. In aid of an inquiry into the true meaning of the language used, weight may also be given to long continued contemporaneous construction by officials charged with the administration of the government, and especially by the Legislature. 6 B. C. L. 62, 63. In approaching the specific question under consideration, the first inquiry theref ore is whether the word “ballot,” as used in that part of article 1, section 1, of the Maryland Constitution, which provides that “All elections shall be' by ballot,” has such a common, definite, and' precise meaning as to preclude any interpretation ⁶⁷⁷ of it which would permit any method of voting other than by some paper on which is indicated by appropriate marks the voter’s choice of men or measures. The word is derived from “ballotta,” “a round bullet, a voice or lot (Florio, 1598), dim. of baila Ball,” Oxford Dietionary, and is said in the same work to mean, “The method or system of secret voting, originally by means of small balls placed in an urn or box; an application of this mode of voting, * * *” and “to vote, for approval, selection or rejection, upon (a proposed resolution, candidate etc.), by depositing small balls in an urn or box, or by some other secret method,” “To give a secret vote.” In Webster’s New International Dictionary it is defined as an, ‘Act of voting, usually in secret, by balls or by written or printed tickets or slips of paper; the system of voting by balls or tickets, or by anyl device for casting or recording votes as by a voting machine.” Wherever voting has been permitted as a political privilege or right, the secrecy of the vote has been found to be essential to a fair and free expression of the will of the voters.

The dicast in Greece voted secretly by the use of balls, stones, or shells, and from: the use of marked shells (ostrakon, Gr., a shell) in popular voting came the word “ostracism” or secret vote of the people. So too the Romans used a system of secret voting by means of tabellas, or tickets, of wood distributed to the citizens, Middleton’s Cicero I, 2, 153; New International Encyclopedia, “Ballot.” Later, mechanical counters replaced the balls, and from time to time improvements were found which made possible the production of the modern machine in current use, which is designed to register each vote as it is cast, to automatically count and register the total count for each candidate or measure, to prevent fraud and to insure secrecy. They were in use in Lockport, N. Y., as early as 1892, and from that time the use has grown until at the presidential election of 1928 more than sixteen per cent, of the total vote is said to have been cast on voting machines. The earliest voting in this state was viva voce.

Article ⁶⁷⁸ 2 of the Constitution of 1776 provided that all freemen having a freehold of fifty acres, or property above the value of thirty pounds, and otherwise qualified, should have the right of suffrage, in the election of the House of Delegates, and should on the day of election assemble fit the court house in their respective counties, and elect viva voce delegates for their respective counties. Article 14 made similar provisions for the election of senatorial delegates, who, by article 15, were required to meet at Annapolis and elect “by ballot” fifteen senators. Article 25 provided for the election of a Governor by the “joint ballot” of both Houses. By an amendment proposed by chapter 115, Acts 1798, the constitutional provisions relating to the “judges, time, place, and manner of holding elections” were repealed, and those matters left to be “regulated by law.” By an amendment proposed by chapter 83 of the Acts of 1809, suffrage was extended to all free, white, male citizens, and every such citizen given the right to “vote by ballot” for the election of public officers.

By an amendment proposed by chapter 197 of the Acts of 1836, the power to regulate! all matters relating to the judges, time, place, and manner of holding elections for Governor was committed to the Legislature. In the Constitution of 1851, article 1, section 1, appears the provision that at all elections “the vote shall, be taken by ballot,” which was retained in the Constitutions of 1864 and 1867, unchanged except for some trifling diff erence in phraseology. It seems reasonably clear from that history of the evolution of the word “ballot” that it has no meaning or connotation so definite and fixed as to prevent its extension to include voting machines. It has successively been used to describe voting by means of balls, by slips of wood covered with wax, by paper ballots, by a machine which deposited balls, and by a machine which merely registered the vote.

In the Constitution of 1776, it was used to describe a method of voting for the selection of certain officials by electors which permitted a degree of ⁶⁷⁹ secrecy not possible under the viva voce system provided for the election of the delegates or electors. When the phrase “elect by ballot” was used in the Constitution of 1776 in providing for the election of senators by electors, it was used to describe a secret method of voting as contrasted with the open or viva voce system provided for the election of the delegates, and when it, or similar phrases, are used in the later Constitutions, the word “ballot” is obviously used in the same sense. The essential and desirable characteristic of voting by ballot was the prevention of fraud, intimidation, or duress, by insuring a degree of secrecy that would permit none but the voter to know how he voted. The only system of voting by ballot then known was that by which the voter signified his choice of men or measures by depositing in some appropriate receptacle a ball, a piece of wood, as a token of his choice, or a piece of paper on which by suitable marks he had indicated that choice.

The reason for selecting that system was to secure a degree of secrecy which was not possible under any system of viva voce voting, and its purpose was to free the voter from improper influences which might prevent the free and honest exercise of his right of suffrage. It is unbelievable that men of ordinary intelligence meant by the use of that phrase to prevent the use of improvements in the systemj which would promote the very objects and purposes which they had In mind, or that they attached any importance to the mere physical character of the means used to record the voter’s choice. The phrase was used generally, to describe any system of voting which insured secrecy to the voter ih recording his choice, rather than specifically to describe any peculiar or particular method of accomplishing that result. It cannot be assumed that the framers of the several constitutions in which the phrase occurs meant that it should ever be so interpreted as to defeat the objects of the provisions in which it occurs, and to encourage the evils it was intended to prevent.

The expression occurs not infrequently in the consti ⁶⁸⁰ tutions of American states, and, since the introduction of the voting machine as a practical and satisfactory-means of voting at public elections, the courts have been called on in a number of cases to' decide the very question under consideration here, and their conclusions have almost uniformly been in favor of the interpretation that voting by means of a voting machine is voting by ballot. Nichols v. Minton (1907) 196 Mass. 410 , 82 N. E. 50 , is to the contrary. That decision has been sharply criticized ( 124 Am. St. Rep. 578 ), but the court there was applying a constitutional provision that officers should be elected by “written votes,” that the town clerk should “sort and count the votes” and make a “fair record of the same,” which are so particular and specific that their analogy to the phrase “vote by ballot” is too remote to aid in the interpretation of the latter expression.

The cases relating to the question are gathered in a note to State v. Green (Ohio 1929) 66 A. L. R. 849. Support for the interpretation that voting by means of voting machines is but another method of voting by ballot is also found in the fact that the Legislature of this State, at three separate sessions, has so interpreted it. Chapter 513, Acts 1914; chapter 228, Acts 1933; chapter 94, Acts 1935. Attention is also called to the manner in which the word “ballot” is used ini article 16i of the Constitution of this State, which provides that laws submitted for a referendum under that article shall be submitted “on the ballots” (section 5) if containing less than two hundred words, but that if containing more than two hundred words, the full text shall not be “printed on the official ballots,” etc. Section 5.

An examination of the context of those phrases, however, discloses that the word “ballot” was there used in no narrower sense than that given it here. Where a law is too long to be conveniently stated on the ballot, constructive notice of it is to be given the voters by publication, and only the ballot title need appear on the ballot. The word “ballot” there was obviously used as it is used elsewhere in the Constitution, to include any system or method of voting under which the ⁶⁸¹ voter could record his will accurately and secretly. In the section the word is treated as equivalent to “vote” and some indication that it was intended to be so interpreted is found in the fact that the Legislature, at the same session in which that amendment was proposed, declared that “all elections held through the medium of Voting Machines shall have the same validity in law as elections held by means of paper ballots.” Section 2, chapter 513, Acts 1914; chapter 673, Acts 1914.

Special Law. Another objection is that the act is a special law and therefore obnoxious to article 3, section 33, of the Constitution of Maryland. The appellee, in reply to that contention, says that the statute is a public local law, and for that reason is not a “special law” within the meaning of that provision. Mayor etc. of Crisfield v. Chesapeake & Pot.

Tel. Co., 131 Md. 444 , 102 A. 751 . But the premise that it is a local law cannot be sustained. While it is difficult to formulate a comprehensive definition of the distinction between a public local law and a public general law, it may be said that a “public local law” is a statute dealing with some matter of governmental administration peculiarly local in character, in which persons outside of that locality have no direct interest, and a “public general law” is one which deals with a subject in which all the citizens of the state are interested alike, and the fact that it permits or directs differences in matters of mere administrative detail suited to the peculiar needs of localities does not make it any the less a public general law. 25 R. C. L., “Statutes,” secs. 65, 66; Mathews v. City of Chicago,, 342 Ill. 120 , 174 N. E. 35, 39 ; 59 C. J., “Statutes,” sec. .318; Stephensen v. Wood, 119 Tex. 564 , 34 S. W.

(2nd) 246, 248 ; Williams v. People, 24 N. Y. 405 ; Healey v. Dudley, 5 Lans. (N. Y.) 115. The statute under consideration here is a public local law only in the sense that it operates in Baltimore City. It deals, however, with a subject on which that municipality is without power to legislate (Baltimore City Charter; article 11A, Constitution of Maryland), and is general in ⁶⁸² the sense that, although it is only effective within a limited area, it regulates the manner in which citizens of the state residing in that area may exercise rights which affect the citizens of the whole state; for, while it applies only to elections held in' Baltimore, the result of elections held there may determine what persons are to administer the government of the state, what laws are to regulate the conduct of its inhabitants, wha are to represent it in the national senate, and who is to serve as the chief executive of the nation..

It is not therefore a public) local law within the meaning of the term “local laws” as used in Md. Const., art. 11A. The question, therefore, is whether apart from its character as a public general or a public local law, it is a special law, within the meaning of that part of article 3, section 33, Constitution of Maryland, which provides that the General Assembly shall pass no “special law for any case for which provision has been made by an existing general law.” That particular provision has been considered by this court in a number of cases, and while, as stated in Williams v. Baltimore 289 U. S. 36 , 53 S. Ct. 431, 434 , 77 L. Ed. 1015 , there “has been need, now and again, to develop close distinctions,” the term “special law” has in them uniformly been interpreted to mean a special law for a special case. In Montague v. State, 54 Md. 481, 489 , one of the earlier cases, it is said: “The provision immediately following in the same section, that ‘the General Assembly shall pass no special law for any case for which provision has been made by an existing general law,’ has been construed as intended to prevent special legislation in special cases, (McGrath v. State, 46 Md. 631 ,) and we think it very clear from the enumeration made that the object of the preceding provisions was to prevent or restrict the passage of special, or what are more commonly called private acts, for the relief of particular named parties, or providing for individual cases. In former times, as is well known and as the statute books disclose, acts were frequently passed for the relief of named individuals, ⁶⁸³ such as sureties upon official bonds, sheriffs, clerks, registers, collectors and other public officers, releasing them sometimes absolutely, and sometimes conditionally from their debts and obligations to the State.

The particular provision now invoked was aimed against the abuses growing out of such legislation, and its object was to restrain the passage of such acts, and to prevent the release of debts and obligations in particular cases, and in favor of particular individuals unless recommended by the Governor or the Treasury officials.” Obviously its purpose was not to impose such an intolerable limitation upon the power of the Legislature to pass general laws as to require that such laws be absolutely uniform in their operation throughout the whole territory affected, regardless of the needs and convenience of persons residing in different localities within that territory. So it appears to be well settled that a law intended to serve a particular need, to meet some special evil, or to promote some public interest, for which the general law is inadequate, is not a special law within the meaning of that term as used in that section of the Constitution. 59 C. J. “Statutes,” sec. 318, 258, note 8; 6 R. C. L. 420; Grossfeld v. Baughman, 148 Md. 330, 339 , 129 A. 370 ; Baltimore v. United Rys. Co., 126 Md. 39, 54 , 94 A. 378 ; O’Brian v. County Commrs. 51 Md. 15, 23 ; Lankford v. Somerset County, 73 Md. 105, 117 , 20 A. 1017, 1020 , 22 A. 412 . In the case last cited, the court, in stating that principle, said: “It is very clear that the Act under consideration is not a local or special Act for any of the particular inhibited cases enumerated in the constitution; nor is it a special law for any case for which provision has been made by existing general law.

It is not in any sense a special law for any case. “The Act under consideration purports to be a general law, and is amendatory of the general law of the State, passed to regulate the appointment of judges of election, the time, place, and manner of holding elections, ⁶⁸⁴ and of making returns thereof. The provisions of the Act are restricted, in their application, to about three-fourths of the State; the remainder of the State being subject to the pre-existing law for the regulation of elections. “The constitutional provision (¡Const, art. .3, sec. 49), conferring upon the Legislature power to pass laws to regulate elections in the State, does not require that such laws should be uniform through the State. They must be free and equal to all persons entitled to vote; but there is nothing in the Constitution to require the modal proceeding to be the same in every part and section of the State. To the Legislature it confided the power to pass laws to regulate the subject-matter of holding and conducting elections; and while it may be a subject of regret that the provisions of the statute under consideration were not given application to the entire State, the exception of the nine counties from their operation does not subject the Act to any such constitutional objection as will invalidate it.

No voter is hindered or prejudiced in his right to vote, by the mere difference in the method of conducting the election under the new law from that under the pre-existing law. The object of both laws is the same, the difference consisting only in the form and method of proceeding. “Whether the act of 1890 (chapter 538) be