Reed v. McKeldin

Delaplaine, J., delivered the opinion of the Court This suit was instituted in the Circuit Court of Baltimore City by William L. Reed, a citizen and taxpayer of Baltimore, against Theodore R. McKeldin, Governor of the State of Maryland, to determine whether the Governor has the constitutional power to appoint two additional Associate Judges of the Supreme Bench of Baltimore City, as provided by Chapter 269 of the Acts of 1955, prior to the election in November, 1956. This Act, which adds a new section to the Baltimore City Charter, 1949 Ed., to be known as Section 230A, provides as follows: “In addition to the present membership of the Supreme Bench of Baltimore City, there shall be two aditional Associate Judges of said Court. Said Associate Judges shall be selected in the manner provided by Section 5 of Article 4 of the Constitution of this State, and thereafter such Judges shall be elected by the legal and qualified voters of Baltimore City at the election to be held on Tuesday next after the first Monday of November, 1956. The said Judges, when appointed or when elected, shall be subject to all of the provisions of the Constitution and laws relating to the Supreme Bench of Baltimore City and the several Judges thereof.” The Act also provides that if any phrase, clause, sentence, words or part of the Act shall be adjudged by any ⁵⁵⁷ court of competent jurisdiction to be unconstitutional, such judgment or decree shall not invalidate the remainder thereof; and in the event that such court may adjudge or decree that the additional Associate Judges may not be selected in the first instance in the manner provided by Section 5 of Article 4 of the Constitution, then they shall be elected by the voters in November, 1956.

The Act was approved by the Governor on April 11, 1955, and took effect on June 1, 1955. Complainant alleged (1) that the Act is unconstitutional in so far as it provides for the appointment by the Governor of the two Associate Judges in the first instance; (2) that Governor McKeldin announced his intention to appoint the two Judges promptly after June 1, 1955; (3) that unless the Governor is restrained, he will proceed to make the appointments, thereby illegally subjecting the State of Maryland and the City of Baltimore to the expense of paying the salaries of the two Judges, who will perform judicial duties while a serious doubt exists as to the validity of their selection and their official acts; and (4) that it is in the public interest to decide the issue before the Governor makes such appointments. Complainant prayed the Court to declare the Act unconstitutional in so far as it provides for the appointment by the Governor of the two additional Associate Judges, and to enjoin the Governor from appointing them. On May 24, 1955, the Court entered a decree declaring that the Act is constitutional and valid in so far as it provides for the appointment by the Governor of the two additional Judges, and that such power is effective on June 1, 1955.

The decree also dismissed the bill of complaint. On May 26 complainant entered an appeal from that decree to this Court. We advanced the case because of its public importance. Under the Uniform Declaratory Judgments Act, Code 1951, art. 31A, sec. 1 et seq., constitutional issues may be ⁵⁵⁸ decided provided that there is no by-passing of an administrative agency.

Pressman v. State Tax Commission, 204 Md. 78, 84 , 102 A. 2d 821 . It has also long been established in this State that a taxpayer may invoke the aid of a court of equity to restrain the action of a public official or an administrative agency when such action is illegal or ultra vires and may injuriously affect the taxpayer’s rights and property. Baltimore Retail Liquor Packages Stores Ass’n v. Board of License Com’rs, 171 Md. 426, 429 , 189 A. 209 , 109 A. L. R. 1253; Masson v. Reindollar, 193 Md. 683 , 69 A. 2d 482 . ■ The Constitution of Maryland, as drafted by the Constitutional Convention in 1867, made provisions in Article 4 for the Judiciary Department of the State of Maryland. Section 1 provided that the judicial power of the State shall be vested in the Court of Appeals, Circuit Courts, Courts of Baltimore City, Orphans’ Courts, and Justices of the Peace.

Section 31 provided that there shall be elected by the voters of Baltimore City one Chief Judge and four Associate Judges, who shall constitute the Supreme Bench of Baltimore City. Section 39 provided: “The General Assembly shall, whenever it may think the same proper and expedient, provide, by Law, another Court for the City of Baltimore, and prescribe its jurisdiction and powers; in which case there shall be elected by the voters of said City, qualified under this Constitution, another Judge of the Supreme Bench of Baltimore City, * * Section 5 provided that after the election for Judges, the Governor shall appoint to fill any vacancy “upon the expiration of the term, or in case of the death, resignation, removal, or other disqualification of any Judge.” In 1942 the Commission on the Judiciary Article of the Constitution, generally known as the Bond Commission, which was appointed by Governor O’Conor to draft recommendations for reorganization of the Judicial System ⁵⁵⁹ of the State, suggested that Section 5 of Article 4 of the Constitution be amended in the following respects: (1) to empower the Governor, upon the “creation of the office of any judge,” to appoint to fill the office until the election; (2) to provide that at elections the names of the judges in office should be put on the ballots, which should bear no party designation of any candidates, and the names of candidates other than the judges in office should be put on the ballots only on petition, and not by primary elections; and (3) to empower the Legislature to increase or decrease the number of judges “for any of the circuits.” 48 Reports, Md. State Bar Ass’n (1943), 3, 20-22. In March, 1943, the State Senate struck out the second and the third amendments of Section 5; but it adopted the first amendment to empower the Governor to appoint upon “creation of the office of any judge.” Senate Journal, 1943 Sess., 875, 908, 909. The Bond Amendment, Chapter 772 of the Acts of 1943, was ratified by the voters in November, 1944.

Section 5, amended again by Chapter 703 of the Acts of 1945, ratified in November, 1946, provides: “Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge, or creation of the office of any judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the election and qualification of his successor; * * *.” It was the contention of complainant that the amendment of Section 5 to empower the Governor to appoint to fill a vacancy upon “creation of the office of any judge” does not apply to the Supreme Bench of Baltimore City, because the application of this amendment to the Supreme Bench was contingent upon the adoption of the amendment to empower the Legislature to increase or decrease ⁵⁶⁰ the number of judges “for any of the circuits,” and that amendment was not adopted. Complainant urged that the Bond Commission assumed that all of its proposals would be adopted by the Legislature and would work together as part of a reorganized Judicial System. That may be true. But the Commission did not indicate, even by implication, that the recommendation that the Governor should have the power to appoint in the first instance would be contingent upon the power of the Legislature to increase or decrease the number of judges.

The Report of the Commission, in discussing the Number, Distribution and Assignment of Judges, did not discuss the method by which any additional judges would be selected. 48 Reports, Md. State Bar Ass’n (1943), 3, 22-24. Complainant compared Section 5 with Section 21 of Article 4, which deals with the Circuit Courts for the Counties, namely the Judges for the First, Second, Third, Fourth, Fifth, Sixth, and Seventh Judicial Circuits. Section 21, which also was amended by the Bond Amendment, provides that the “number of judges for any of the circuits shall be subject to increase or decrease by law as provided in Section 5.” Complainant conceded that Section 21 empowers the Governor to fill any vacancy upon “creation of the office of any judge” in any of the first seven Judicial Circuits, because it expressly provides that the number of judges shall be subject to increase or decrease as provided by Section 5. But he contended that Section