Perkins v. Eskridge

Digges, J., delivered the opinion of the Court. Antonio’s comment that “What’s past is prologue,” 1 certainly could be appropriately applied to the more than 170-year history of the statutory and constitutional aspects of a litigant’s right to elect that his case be removed from one Maryland court to another. And within the past year, more so than during most other periods, there indeed has been much ado about that right as utilized by some parties in civil law actions. On September 18, 1975, this Court held that those portions of Article IV, section 8 of the Maryland Constitution applicable to the automatic removal of civil actions were unenforceable because they deprived Baltimore City litigants of the equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution.

See Davidson v. Miller, 276 Md. 54, 82 , 344 A. 2d 422, 439 (1975). 2 We did rule, however, that trial ⁶²² courts in this State retain their inherent judicial power to grant removals when it is necessary “to rid the case of any prejudicial barnacles which, because of local prejudice, passion or interest, may have attached.” Id. at 83 , 344 A. 2d at 439 . Within months of our Davidson decision, the legislature acted to reinstate the mandatory removal right by attempting to eliminate the constitutional defect which this Court determined in that case to exist. At its 1976 session, the General Assembly enacted legislation (effective July 1, 1976), now codified as Maryland Code, Courts and Judicial Proceedings Article (1974, 1976 Cum. Supp.), § 6-204, which grants all litigants in specified actions, upon application, an automatic removal to the court of another county. 3 Were this enactment constitutional, litigants in Baltimore City would have a right of removal, as a practical matter, equal ⁶²³ to the right under the Constitution prior to Davidson available to those in the 23 counties and the equal protection flaw of Article IV, section 8 would no longer prevent litigants from obtaining automatic removals.

The life of this 1976 enactment was, however, quite short. By per curiam order filed on September 24, 1976, this Court concluded that, for reasons to be stated at a later date, this law’s provisions violated those of Article IV, section 8 of the Maryland Constitution; we now state the reasons for that order. The factual background of this appeal is uncomplicated, so much so that the relevant portions may be stated in a brief paragraph. Suit in this medical malpractice case was originally initiated by petitioners Minnie L. Perkins and her husband against Dr. Timothy H. Eskridge in the Baltimore City Court on March 31, 1975.

Although respondent Eskridge did not seek a removal of the action during the next year under the inherent power of the court, shortly after § 6-204 became effective and within the time permitted by the act for the removal of cases instituted prior to its effective date, Dr. Eskridge on August 3, 1976, requested a removal to a jurisdiction outside Baltimore City. Acting pursuant to the new law, Judge Sodaro on August 31 transferred the action to the Circuit Court for Garrett County, and on the same day, denied the petitioners’ motion to rescind the removal order. After this ruling against them, the petitioners filed yet another paper that day, this time a notice of appeal to the Court of Special Appeals. 4 Because of the importance of the question involved, we granted certiorari before that court considered the matter. The resolution of the central issue in this case — the constitutionality of § 6-204 — involves an examination of this Court’s decision in Davidson , particularly the effect of that ruling on the viability of Article IV, section 8 of the ⁶²⁴ Maryland Constitution with respect to any limitation it may place on legislative enactments.

The petitioners primarily contend that the legislative change in the removal right was invalid because it was not accomplished by a constitutional amendment. 5 Conversely, the respondents argue that the legislature had the unfettered power to create a statutory right of removal since the effect of Davidson was to eliminate the civil removal provisions from Article IV, section 8, leaving only those provisions relating to criminal causes. Because as set out below, we determine that the impact of Davidson was not so severe as to amount to the excision of Article IV, section 8 from the Maryland Constitution as that section applies to civil actions (though perhaps our decision rendered the provision dormant for some purposes), we determine that the provision retains vitality sufficient to prohibit legislative enactments which conflict with it. Concluding, as we do, that § 6-204 directly contravenes the mandate expressed in Article IV, section 8, it follows that this enactment must yield to that higher authority. To understand why we reach these conclusions, it is necessary that we set out in some depth our analysis of (i) the origins of and rationale for the judicial review doctrine, (ii) the effect of a judicial determination that a statutory provision is unconstitutional, (iii) the consequence of a judicial determination that a state constitutional provision conflicts with the Federal Constitution, (iv) how the above principles relate specifically to the removal right, and (v) why § 6-204 conflicts with Article IV, section 8 of the Maryland Constitution.

(i) Judicial review of constitutional issues is an inveterate tenet in the jurisprudential system of this State; nevertheless, it is important to our analysis of the effect of a decision holding a statute or constitutional provision to be in conflict with a higher, authority that we examine very briefly the bases and scope of this Court’s power in that ⁶²⁵ regard. Although at this nation’s inception, there was some question whether the judiciary could declare acts of the legislature unconstitutional, see G. Gunther, Cases and Materials on Constitutional Law 16-25 (9th ed. 1975); Note, The Theory of State Constitutions, 1966 Utah L. Rev. 542 , 560, even before Marbury v. Madison, 5 U. S. (1 Cranch) 137 , 2 L. Ed. 60 (1803), established the doctrine of judicial review in the Supreme Court of the United States, numerous state and federal courts had already claimed and exercised this power. See C. Antieau, 2 Modern Constitutional Law § 15:7, at 606 (1969); G. Gunther, supra at 16-17; C. Haines, The American Doctrine of Judicial Supremacy 88-203 (2d rev. ed. 1932); Note, supra, 1966 Utah L. Rev. at 561.

One of the cases pre-dating Marbury v. Madison was the decision penned by Chief Judge Chase for our predecessors in Whittington v. Polk, 1 H. & J. 236 (1802), wherein the following rationale for the doctrine of judicial review of legislation is set forth: “It is the office and province of the Court to decide all questions of law which are judicially brought before them, according to the established mode of proceeding, and to determine whether an Act of the Legislature, which assumes the appearance of a law, and is clothed with the garb of authority, is made pursuant to the power vested by the Constitution in the Legislature; for if it is not the result or emanation of authority derived from the Constitution, it is not law, and cannot influence the judgment of the Court in the decision of the question before them. “The oath of a Judge is ‘that he will do equal right and justice according to the law of this State, in every case in which he shall act as Judge.’ To do right and justice according to law, the Judge must determine what the law is, which necessarily involves in it the right of examining the Constitution, (which is the supreme or paramount law, and under which the Legislature derive the ⁶²⁶ only authority they are invested with, of making laws,) and considering whether the Act passed is made pursuant to the Constitution, and that trust and authority which is delegated thereby to the legislative body. “The three great powers or departments of government are independent of each other, and the Legislature, as such, can claim no superiority or pre-eminence over the other two. The Legislature are the trustees of the people, and, as such, can only move within those lines which the Constitution has defined as the boundaries of their authority, and if they should incautiously, or unadvisedly transcend those limits, the Constitution has placed the judiciary as the barrier or safe-guard to resist the oppression, and redress the injuries which might accrue from such inadvertent, or unintentional infringements of the Constitution.” Id. at 244-45 . Thus the teachings of Whittington established two fundamental concepts shortly after the birth of this State: A judge must say what the law is when questions are properly brought before the court, and since the Constitution is the supreme or paramount law, the court must determine upon challenge whether the legislature has exceeded its powers; and neither the judiciary nor the legislature is superior, one over the other — rather they are coordinate branches of government and the former must exercise its duty and authority to determine what the law is in order to ensure the viability of the separation of powers provision of the Maryland Constitution (Article 8 of the Declaration of Rights). Moreover, these principles have been continuously applied and reinforced in numerous cases since that time.

See, e.g., Dept, of Nat. Res. v. Linchester, 274 Md. 211, 218-21 , 334 A. 2d 514, 520-21 (1975); Beauchamp v. Somerset County, 256 Md. 541, 547-48 , 261 A. 2d 461, 464 (1970); Md. Committee v. Tawes, 228 Md. 412, 425-26 , 180 A. 2d 656, 663 (1962); Painter v. Mattfeldt, 119 Md. 466, 472-73 , 87 A. 413, 416 (1913); Baltimore v. State, 15 Md. 376, 453 (1860); ⁶²⁷ Thomas v. Owens, 4 Md. 189, 225 (1853). See generally 1 T. Cooley, Constitutional Limitations 332-35 (8th ed. W. Carrington 1927); 1 W. Willoughby, The Constitutional Law of the United States 1-9 (2d ed. 1929).

(ii) In light of this brief background with respect to judicial review, we now examine in greater depth what we consider to be a concomitant issue — the status of those statutes which have failed to withstand judicial scrutiny under the Constitution. Although we are more specifically concerned here with the status of a constitutional provision which conflicts with the Federal Constitution, we believe the principles developed in the area of statutory unconstitutionality are sufficiently analogous to be of assistance in our inquiry. Most attempts by commentators to summarize views on this subject have proved inadequate due to the variety of circumstances involved, the contradictory rulings in the area, and the changes in judicial policies and theories over the years. Carrington’s 1927 edition of Judge Cooley’s well-known and respected treatise, for example, states unequivocally the rule that a statute declared unconstitutional is void ab initio.

See 1 T. Cooley, supra at 382-84. Another commentator of the same era, however, takes cognizance of the fact that this view fails to account for numerous decisions in conflict with the void ab initio doctrine, and declares the rule to be true in principle, but in need of qualification depending on varying circumstances. 1 W. Willoughby, supra at 11. More recent scholars have uniformly expressed the view that the void ab initio theory often is not applied because of the injustice or inconvenience which ensues when the theory is strictly followed. See, e.g., G. Gunther, supra at 34-36; H. Rottschaefer, American Constitutional Law 35-37 (1939); 1J.

Sutherland, Statutes and Statutory Construction § 2.07 (4th ed. C. Sands 1972). Although numerous law review articles expressing various views on the subject have appeared from time to time, see, e.g., Bikle, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of ⁶²⁸ Legislative Action, 38 Harv. L. Rev. 6 (1924); Crawford, The Legislative Status of an Unconstitutional Statute, 49 Mich.

L. Rev. 645 (1951); Field, Effect of an Unconstitutional Statute, 1 Ind. L. J. 1 (1926); Sentell, Unconstitutionality in Georgia: Problems of Nothing, 8 Ga. L. Rev. 101 (1973); Note, The Effect of the Unconstitutionality of a Statute, 37 Geo. L. J. 574 (1949); 29 Colum.

L. Rev. 1140 (1929); 40 Yale L. J. 1101 (1931), the only full-length work in the area is Professor Oliver Field’s The Effect of an Unconstitutional Statute (1935). Even though this book is over 40 years old, it is not at this time a bit outdated (except perhaps for its table of cases) and remains the most analytical and comprehensive treatment of the subject. The author notes that courts generally have not applied any particular thesis as to the effect of an unconstitutional statute, but rather have utilized several rules at various times and in differing situations. Id. at 2-3.

Field suggests that, moving from the broadest to the narrowest conceptualization of the impact of a court’s declaration of a statute’s unconstitutionality, these may be classified into three different theories: (1) The “void ab initio” theory, the traditional doctrine of American courts whereby the statute is given no effect and is treated as though it had never existed; (2) the “presumption of validity” theory, by which the act is attributed some effect in the past by allowing persons in good faith to presume a law is constitutional until a court declares otherwise, and (3) the “case-to-case” theory (attributing a less sweeping effect to judicial review), whereby the statute itself is neither wholly valid nor invalid, although a court may find that it conflicts with the constitution in a particular case. Id. at 3-8. We discuss these three theories in the order mentioned as a prelude to our analysis of Maryland cases on the effect of statutes failing to pass muster under the Constitution, as well as to provide background for our later consideration of the vitality of Maryland constitutional provisions in conflict with the Federal Constitution. Although, as we will demonstrate later, the void ab initio approach has now been substantially diluted if not totally rejected by the United States Supreme Court as well as by ⁶²⁹ many state courts (including our own), during the early part of our nation’s history it was not often questioned.

The doctrine may have had its origins in the Blackstonian concept of that day that the judge was the discoverer of the law, not its creator, 1 W. Blackstone, Commentaries ⁷⁰, and therefore a ruling that a statute was unconstitutional would relate back to the time of the act’s passage and render it void, since presumably the “law” had always been that way and the court had only later discovered it. See Linkletter v. Walker, 381 U. S. 618, 623 , 85 S. Ct. 1731, 1734 , 14 L.Ed.2d 601 (1965). See generally 0. Field, supra at 11; see Note, The Effect of the Unconstitutionality of a Statute, 37 Geo.

L. J. 574, 576-78 (1949). Although this doctrine was expressed in the early cases of the Supreme Court, see, e.g., Marbury v. Madison, supra, 5 U. S. (1 Cranch) at 177 , 2 L. Ed. at 73 , its classic formulation appears in that Court’s opinion, authored by Justice Field, in Norton v. Shelby County, 118 U. S. 425, 442 , 6 S. Ct. 1121, 1125 , 30 L. Ed. 178 (1886): “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” See Chicago, I. & L. Ry. v. Hackett, 228 U. S. 559, 566 , 33 S. Ct. 581, 584 , 57 L. Ed. 966 (1913). 6 Over the years since Norton , however, the Supreme Court has withdrawn from this generalization when necessary to reach what it considers a more equitable or practical result and today appears to have rejected the strict void ab initio view entirely. The Norton rationale was first explicitly questioned in Chicot County Drainage Dist. v. Baxter State ⁶³⁰ Bank, 308 U. S. 371, 374 , 60 S. Ct. 317, 318-19 , 84 L. Ed. 329 (1940), where Chief Justice Hughes, writing for the Court, substantially narrowed its applicability: “[S]uch broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications.

The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.

These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.” See Linkletterv. Walker, 381 U. S. 618, 622-27 , 85 S. Ct. 1731, 1734-36 , 14 L.Ed.2d 601 (1965). Lately, by dictum in Lemon v. Kurtzman, 411 U. S. 192 , 93 S. Ct. 1463 , 36 L.Ed.2d 151 (1973), the Supreme Court to a considerable degree overruled the strict Norton approach. There, Chief Justice Burger said: “However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct.

This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity. Appellants offer no persuasive reason for confining ⁶³¹ the modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves perceive none.” Id. at 199, 93 S. Ct. at 1468 ; see Sentell, Unconstitutionality in Georgia: Problems of Nothing, 8 Ga. L. Rev. 101 , 104 n. 19 (1973). Paralleling these developments in the United States Supreme Court, most of our sister states have retreated from the Norton doctrine to some extent, see e.g., Bookasta v. Hartford Accident & Indem.

Co., 46 Cal. App. 3d 237, 241-42 , 120 Cal. Rptr. 229, 231-32 (Dist. Ct. App. 1975); Reich v. Board of Fire & Police Comm’rs, 13 Ill.App.3d 1031 , 301 N.E.2d 501, 504 (1973); Roberson v. Penland, 260 N. C. 502 , 133 S.E.2d 206, 208 (1963), although at least one still applies it, see, e.g., City of Atlanta v. Gower, 216 Ga. 368 , 116 S.E.2d 738, 742 (1960).

Another view regarding the effect of an unconstitutional statute — which Professor Field refers to as the “presumption of validity” theory — is that such an act should be deemed to have some effect in the past, but that it is invalid for all purposes in the future, that is, after the declaration of unconstitutionality. This rule seems to have developed as a response to situations where it would be unfair to apply the void ab initio view; the courts employing it have concluded that one should not incur personal liability when relying upon a statute reasonably believed to be valid. Under this view, for example, a police officer is not liable for damages for an arrest made pursuant to an unconstitutional statute, see Yekhtikian v. Blessing, 90 R. I. 287, 157 A. 2d 669, 671 (1960); Bricker v. Sims, 195 Tenn. 361 , 259 S.W.2d 661, 664 (1953), board members are not liable for excess salary payments made under an invalid statute, see Wade v. Board of Comm’rs, 161 Okla. 245 , 17 P. 2d 690, 692 (1932), and a marshal is not liable for an information filed pursuant to an invalid statute authorizing the seizure of liquor, see Anheuser-Busch Brewing Ass’n v. Hammond, 93 Iowa 520 , 61 N. W. 1052, 1053 (1895). Other courts have utilized the rules of mistake of law and estoppel to avoid the strict void ⁶³² ab initio view and have reached results indistinguishable from those formally deviating from Norton.

See 0. Field, supra at 4-5. In either case, it seems clear that the modern trend has been away from the doctrinaire void ab initio approach toward the more realistic views which have applied tests of reasonableness and good faith to determine the consequences flowing from conduct undertaken pursuant to an unconstitutional act. 1 J. Sutherland, Statutes and Statutory Construction § 2.07, at 23 (4th ed. C. Sands 1972).

The third basic view with regard to the effect of an unconstitutional statute, Field’s “case-to-case” theory, takes cognizance of the fact that a judicial determination in a particular case does not render a statute wholly invalid; thus, pursuant to this principle, a statute constitutional under some circumstances may be unconstitutional under others, and constitutional as to some persons, yet unconstitutional as to others. As Field points out: “This is really ai type of . partial unconstitutionality, but it differs from the usual case of partial unconstitutionality in that the whole of the act, so far as its text and face are concerned, is valid, whereas in the true partial unconstitutionality case some definite portion of the text is held to be invalid; some phrase, sentence, or section is singled out and condemned. “The great advantage of this view of the effect of an unconstitutional statute is that it permits of great elasticity in the law. It lends itself to the administration of justice in a case-to-case system, with a proper tempering of justice to the individual case. The great disadvantage of this rule is that it does not lend itself to the formulation of rules of law.

Prediction becomes well-nigh impossible. The stable element of the law almost disappears under this technique.” 0. Field, supra at 8 (footnote omitted). The case of Shepherd v. City of Wheeling, 30 W. Va. 479 , 4 S. ⁶³³ E. 635, 637-38 (1887), represents a classic statement of this approach: “When, in the course of determining the rights of the parties to a particular suit or controversy, the court finds it necessary to ascertain whether or not a statute is unconstitutional, the court must necessarily pass upon that question; but in doing so it does not annul or repeal the statute if it finds it in conflict with the constitution.

It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no existence. The court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinion or reasons of the court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute-book; it does not repeal, ‘supersede, revoke, or annul’ the statute. The parties to that suit are concluded by the judgment, but no one else is bound.

A new litigant may bring a new suit, based upon the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. “In a very able opinion by Shaw, C. J., [in Wellington v. Petitioners, 16 Pick. 87 , 96 (Mass. 1834)] which is approved and in part quoted in the text of Cooley, that eminent judge says: ‘It may be well doubted whether a formal act of legislation can ever, with strict, legal propriety, be said to be void; it seems more consistent with the nature of the subject, and the principles applicable to analogous cases, to treat it as voidable. But whether or not a case can be imagined in which an act of the legislature can be deemed absolutely void, we think it quite clear that when such act is alleged to be void, on the ground that it exceeds the just limits of ⁶³⁴ legislative power, and thus injuriously affects the rights of others, it is to be deemed void only in respect to those particulars, and as against those persons whose rights are thus affected. Prima facie, and upon the face of the act itself, nothing will generally appear to show that the act is not valid; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his property, or his rights, that the objection of unconstitutionality can be presented and sustained.’ ” See also Pierce v. Pierce, 46 Ind. 86, 94-96 (1874); Harlee v. Ward, 15 Rich. 231 , 239 (S.C. 1868). The limited function of a court decree and the inherent weakness of the void ab initio rule were likewise pointed out by New Jersey’s highest court early in this century: “The vice of the doctrine of Norton v. Shelby County, as it seems to me, is that it fails to recognize the right of the citizen, which is to accept the law as it is written, and not to be required to determine its validity.

The latter is no more the function of the citizen than is the making of the law. Each of these functions has been delegated by the Constitution, the one to the judicial and the other to the legislative branch of the government. And it is to be observed that the judicial function of determining the validity of statutes is confined within a very narrow scope. Courts are not vested with the general supervision of legislation.

They have received no authority from the people to inspect each statute as it comes from the hands of the Legislature, and declare whether or not it infringes constitutional limitations. The function of the judicial department with respect to legislation deemed unconstitutional is not exercised in rem, but always in personam.” Lang v. Mayor, 74 N.J.L. 455 , 68 A. 90, 92 (Err. & App. 1907); see Byrnes v. ⁶³⁵ Boulevard Comm’rs, 16 N.J.Misc. 141, 197 A. 667, 670-71 (Cir. Ct. 1938), aff'd, 121 N.J.L. 497 , 3 A. 2d 456 (Err. & App. 1939); Attorney General v. McGuinness, 78 N.J.L. 346 , 75 A. 455, 462 (Err. & App. 1910); Allison v. Corker, 67 N.J.L. 596, 600 , 52 A. 362, 363 (Err. & App. 1902). Although none of the above three views has ever been explicitly embraced or rejected by this Court, over the years there has been a move away from the void ab initio doctrine towards the other two. It is true that our very early decisions such as Whittington v. Polk, supra, 1 H. & J. at 242 , regarded unconstitutional acts as “mere nullities,” but it is equally true that other, more recent decisions have deviated from a doctrinaire approach when necessary to meet the practicalities of a particular circumstance.

In Kimble v. Bender, 173 Md. 608 , 196 A. 409 (1938), for example, a statute providing for the appointment of justices of the peace was declared invalid. Rather than treat the actions of the appointees as “mere nullities,” we utilized an approach analogous to the presumption of validity theory, since the law had been relied upon by the office holders as well as the public. Id. at 624-27 , 196 A. at 416-17 . Finding it necessary to meet that exigency, the Court reasoned: “The existence of the office of justice of the peace before the passage of the various acts mentioned takes the present case out of the line of cases represented by Norton v. Shelby County, supra.

The unconstitutionality of these statutes of the Legislature of Maryland did not affect the office of justice of the peace under the Constitution, but were regulatory measures with respect to the number of justices, the exercise of their jurisdiction, and to their compensation. “The conditions are gratified for the operation of the rule that, under an invalid statute, providing for additional incumbents of the existing office under the Constitution, prescribing regulatory or ⁶³⁶ administrative details of the exercise of their jurisdiction as magistrates, and fixing their compensation, the additional incumbents of this office are officers de facto until the act is declared unconstitutional. On the facts here presented, public policy required obedience from the citizens of the provisions of these public statutes, even though unconstitutional, so long as the statutes have not had judicial condemnation. If individuals who deal with public officers may in every instance challenge their authority or deny their right to discharge the duties of the office, until the courts of final resort have given the sanction of their approval to the validity of the statutes under which these officers were elected or appointed, the conduct of public affairs will be involved in doubt and confusion so far as these offices are concerned.” Id. at 626, 196 A. at 417 . Another case refusing to apply a strict Norton approach is Home Utilities v. Revere, 209 Md. 610, 617-19 , 122 A. 2d 109, 112-13 (1956), in which our predecessors rejected the contention that the Maryland Fair Trade Act, concededly in violation of the Federal Sherman Act when passed, was void ab initio, ruling instead that “[t]he better view seems to be that where a state statute is invalid because in conflict with Federal legislation, the state statute is in effect merely unenforceable or suspended by the existence of the Federal legislation and consequently the repeal of the Federal statute reinstates or revives the state law without an express reenactment by the State legislature.” Id. at 619 , 122 A. 2d at 113 ; accord, Jawish v. Morlet, 86 A. 2d 96, 97 (D.C. Mun.

Ct. App. 1952); General Electric Co. v. Packard Bamberger & Co., 14 N. J. 209, 102 A. 2d 18, 23 (1953); Kinsey Distilling Sales Co. v. Foremost Liquor Stores, Inc., 15 Ill. 2d 182 , 154 N.E.2d 290, 296 (1958). ⁶³⁷ Quite recently we have, in fact, explicitly noted the decline and fall of Norton. See Slate v. Zitomer, 275 Md. 534 , 538 n. 2, 341 A. 2d 789, 792 (1975), cert. denied, 423 U. S. 1076 , 96 S. Ct. 862 , 47 L.Ed.2d 87 (1976). We now join, if we have not already implicitly done so, those courts which have refused to apply the void ab initio rule in all situations. 7 (iii) The crucial matter we must consider, of course, is the extent to which a state constitutional provision has effect following a determination that it conflicts with the Federal Constitution. In many respects, the same practical approach described above is necessarily mandated; moreover, due to the exalted position of state constitutions, including our own, and because a provision of our Constitution (as distinguished from a statute) must be construed in relation to its limitations upon the General Assembly’s legislative power as well as in relation to federal constitutional limitations upon its enforceability, we find that even more leeway is desirable here than in situations where we are dealing with the effect of unconstitutional statutes.

When a provision of the Maryland Constitution violates the Federal Constitution, the State provision, depending on the circumstances of the case, may merely be unenforceable by parties seeking relief pursuant to it rather than totally excised so as to remove all restraints imposed by it. We find considerable support for this proposition by analogy to the more recent decisions regarding the residual effect of an unconstitutional statute, and as discussed below, the unique station occupied by constitutions, the principles of constitutional construction, and our prior decisions holding other provisions of the Maryland Constitution to be in conflict with the Federal Constitution. ⁶³⁸ The written constitution in this nation has always enjoyed a status superior to legislative enactments and has been variously portrayed as “original legislation,” “organic law,” or “fundamental law.” See, e.g., McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316, 415 , 4 L. Ed. 579, 603 (1819); Alexander v. State ex rel. Carver, 274 Ala. 441 , 150 So. 2d 204, 208 (1963); Williams v. State, 261 Ind. 547 , 307 N.E.2d 457, 461 (1974); In re Proposal C, 384 Mich. 390 , 185 N.W.2d 9, 14 (1971); Dean v. Paolicelli, 194 Va. 219 , 72 S.E.2d 506, 510-11 (1952); Swindler, State Constitutional Law: Some Representative Decisions, 9 W. & M. L. Rev. 166, 167-68 (1967).

See generally Note, The Theory of State Constitutions, 1966 Utah L. Rev. 542 , 546. This Court has expressed similar sentiments: “A state constitution may aptly be likened to a legislative act enacted directly by the people themselves in their sovereign capacity as a political entity (that is, by the voters, for ‘the original power of the people, in their aggregate political capacity, is delegated in the form of suffrage to such persons as they deem proper’), and therefore is the fundamental, extraordinary act by which the people establish the structure and mechanism, of their government. Essentially, a constitution is fundamental legislation directly by the people acting politically in their sovereign capacity, while a law is a rule of conduct prescribed by the legislative agents of the people under and subject to the delegated limitations of the previously ordained superior legislation, the Constitution.” Board v. Attorney General, 246 Md. 417, 429 , 229 A. 2d 388, 394 (1967) (citations omitted); see Bandel v. Isaac, 13 Md. 202, 223 (1859). Thus the status of our Constitution as our “instrument of government,” see Co. Com’rs v. Supervisors of Elec., 192 Md. 196, 208 , 63 A. 2d 735, 740 (1949), requires that it be preserved to the fullest extent possible when one of its provisions conflicts in some manner with the superior Federal Constitution. ⁶³⁹ We think the principles of constitutional construction are relevant because, of necessity, we are in essence required to construe what, if anything, remains of a provision of our Constitution following a determination that it conflicts with the Federal Constitution.

Initially we observe that the same general rules apply as apply in the construction of statutes; however, because of the special status of the constitution, we, as do most courts, employ these rules more liberally and also utilize certain additional rules sui generis in constitutional cases. See, e.g., County Council v. Supervisor, 274 Md. 116, 120 , 332 A. 2d 897, 899 (1975); 16 Am.Jur.2d Constitutional Law §§ 60-100 (1964); Swindler, supra, 9 W. & M. L. Rev. at 169-70. See also Donaldson v. Harvey, 3 H. & McH. 12 , 19 (1790). We have no doubt, however, with regard to the primary objective confronting us: “In interpreting the Constitution the first thing to be got at is, what was the purpose of its framers?” Johns Hopkins Univ. v. Williams, 199 Md. 382, 387 , 86 A. 2d 892, 894-95 (1952), quoting Buckingham v. Davis, 9 Md. 324, 328 (1856); see Reed v. McKeldin, 207 Md. 553, 561 , 115 A. 2d 281, 285 (1955); Beall v. State, 131 Md. 669, 676 , 103 A. 99, 102 (1917).

The broad framework within which we analyze the purpose of the framers has been aptly stated and reiterated by our predecessors: “[W]hile 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. ... 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.”