Smith v. Higinbothom

Per curiam: ¹²⁰ For reasons to be stated in an opinion to be filed hereafter, it is ordered by the Court of Appeals this 19th day of June, 1946, that the order appealed from, refusing a preliminary injunction in the above entitled case, be and the same is hereby affirmed, and that the decree appealed from, sustaining the demurrer and dismissing the bill of complaint, be and the same is hereby affirmed with costs to the appellees. Delaplaine, J., delivered the opinion of the Court. This suit was brought in the Circuit Court of Baltimore City by four members of the Baltimore Bar, Horace T. Smith, Webster C. Tall, James K. Cullen and Wilfred T. McQuaid, seeking a declaratory decree and preliminary injunction against Paul M. Higinbothom, president of the Bar Association of Baltimore City, Charles C. G. Evans, chairman of the Committee for the Nomination and Election of the Sitting Judges, and the Bar Association of Baltimore City, a body corporate. The bill of complaint, filed on June 7, 1946, alleges that complainants are candidates for Associate Judge of the Supreme Bench of Baltimore City, subject to nomination in the Republican primary election on June 24, and that they possess all the qualifications for that office; but six judges, Michael J. Manley, E. Paul Mason, Herman M. Moser, Charles E. Moylan, Joseph Sherbow and John T. Tucker, appointed by Governor O’Conor to fill vacancies until the general election in November, are also candidates; and a committee appointed by the president of the Bar Association is conducting a newspaper and radio campaign in support of the sitting judges and soliciting contributions to defray the expenses.

The bill prays for a decree declaring that any activity of the Bar Association to promote the nomination or election of a candidate for public office is ultra vires, and (2) that the activities of defendants in support of the sitting judges violate the Maryland election law. The bill also prays for an order pending decree to restrain defendants from soliciting or expending money in be ¹²¹ half of the incumbents. Defendants demurred to the bill. On June 11 the Court passed an order denying injunctive relief, and on June 14 passed a decree sustaining the demurrer and dismissing the bill.

The appeals are from the order and the decree. Under the Constitution of Maryland of 1776, the Governor appointed all judges in the State with the consent of the Council. After 1837, when the Council was abolished, the Governor appointed them with the consent of the Senate. Acts of 1836, Ch. 197; Acts of 1837, Ch. 84.

In some of the States the judges were appointed by the Governor, in others they were chosen by the Legislature; but the wave of Jacksonian Democracy eventually led to the election of judges by the people. This movement began in Mississippi in 1832. New York and Iowa changed to the elective system in 1846; Illinois, Arkansas and Wisconsin in 1848; California in 1849; Pennsylvania, Virginia, Kentucky, Michigan, Missouri and Alabama in 1850. The Maryland system was changed in 1851, when the members of the Constitutional Convention argued that in most instances the judges had been appointed by the Governor on account of political party, whereas the voters would not consider a candidate’s partisanship. 2'Debates, Md. Reform Convention of 1851, 464, 490.

The elective system was continued in Maryland under the Constitution of 1864, and also under our present Constitution. Md. Constitution of 1867, Art. IV, Secs. 3, 5; Constitutional Amendment, Acts of 1943, Ch. 772. By this time the majority of the States had changed their Constitutions to provide for popular election of judges, and this method was chosen by all the States admitted into the Union thereafter. A half century under the elective system revealed that it had a number of disadvantages, and the modern trend has been away from popular control of the judiciary.

In Connecticut most of the judges are now appointed by the Governor with the consent of the Legislature. In New Jersey and Delaware nearly all the judges are appointed by the Governor with the consent of the Senate. ¹²² In Maine, New Hampshire and Massachusetts most of them are appointed by the Governor with the consent of his Council. In Vermont, Rhode Island, Virginia and South Carolina virtually all are elected by the two Houses of the Legislature in joint session. In recent years the American Bar Association and America Judicature Society have proposed a new method of judicial selection whereby the Governor appoints from a list of nominees suggested by a small commission.

In California, first State to adopt the new plan, the Judges of the Supreme Court and of the intermediate appellate courts are appointed by the Governor with the consent of a Commission composed of the Chief Justice or Acting Chief Justice, the Attorney General, and the presiding justice of one of the District Courts of Appeal. Haynes, Selection and Tenure of Judges, 9-5.0. According to the American Judicature Society, this system, which has also been adopted by Missouri, has been a disappointment because it has not succeeded in removing politics from judicial selection. 28 Journal, American Judicature Society, 91. However that may be, it has been recognized for many years in Maryland and the other States which still retain the elective system that it is the privilege of the Bar to publish its opinion on the qualifications of judicial candidates.

The Bar Association of Baltimore City was incorporated in 1880 to aid in maintaining the honor and dignity of the profession of law, to promote legal science, and to further the administration of justice. The by-laws, in prescribing the procedure by which members of the Bar available for the bench are recommended to the Governor for appointment and to the people for election, require the president of the association to appoint a Judicial Committee of seven members, who investigate the integrity, wisdom, sound legal knowledge and general qualifications of available lawyers, and report their findings and recommendations to the president, who shall thereupon publish such report. The Executive Committee may direct that the proposed names be submitted to a referendum vote of the membership of the association. ¹²³ The by-laws further provide that the president shall appoint such committees as he may deem necessary for the proper conduct of the business of the association and their duties shall be such as the president may prescribe. It is beyond question that the Bar Association has the power under its charter and by-laws to engage in the alleged activities in support of the sitting judges.

Appellants strongly urged that a contribution toward the expenses of the special committee of the Bar Association may place the sitting judges under obligation to the contributor. Undeniably this objection is one of the disadvantages of the elective system. Nevertheless, it is axiomatic that those who select the judges ought to possess information as to the qualifications of those eligible for choice. Consequently it has been customary for the bar association in many cities of the country to urge the election of qualified judicial candidates in the press and by radio.

The Association of the Bar of the City of New York has had an active Judiciary Committee since 1898 to support the candidates considered best fitted for the bench. In 1930 the American Judicature Society reported that notable campaigns against “intolerable conditions” had been conducted by the bar associations in Cleveland, St. Louis and Los Angeles, and in one campaign the Chicago Bar Association had collected and spent more than $75,000 for expenses. 14 Journal, American Judicature Society, 10, 11. In this State, the sitting judge policy has received public approval for many years on the ground that it is beneficial to the State to elect those who have demonstrated their integrity, wisdom and sound legal knowledge. It does not mean that the sitting judge will always receive the endorsement of the Bar Association.

In the New Judges Fight of 1882, out of which the policy grew, the Baltimore Sun, which led the fight, published a statement signed by several hundred leading business and professional men opposing three of the four sitting judges, and all four independent candidates were victorious. The historians of The Sun, in referring to that ¹²⁴ campaign, state: “A non-political judiciary that will interpret fairly the law and administer justice without political taint or touch is more vital to the community than anything else. A good judge is entitled to re-election regardless of his party affiliation; a poor judicial candidate, pushed by the politicians, should never be supported for party reasons. That was the position The Sun took in 1882, and from it the paper has never receded an inch.” Johnson, Kent, Mencken and Owens, The Sun- ■ papers of Baltimore, 144, 145.

Appellants also made the objection that the sitting judge policy amounts in actual practice to a device by which the Governor, who has the power to fill vacancies, is enabled to keep his appointees in office, and hence the influence of the Bar Association circumvents the right of the people to elect their judges. However, the fact that all six of the sitting judges are members of the Governor’s political party is a matter over which the Court has no control. The situation was well explained by Chief Justice Taft when he declared before the American Bar Association: “It is true that politics have played a part when judges have been appointed. They have naturally been taken from the lawyers of the prevailing party.

The President or a Governor appointing them has been elected on a partisan ticket, is the titular head of his party, and is expected to give preference to those who supported him. This has not, however, resulted in political courts, because the control of the government has naturally changed from one party to another in the course of a generation and has normally brought to the bench judges selected from both parties; and then, if the judges are made independent by the character of their tenure, the continued exercise of the judicial function entirely neutralizes in them any possible partisan tendency arising from the nature of their appointment.” 38 Reports, American Bar Association, 423. We come now to the second question, whether the activities alleged in the bill of .complaint violate our election law. The section alleged to be violated declares that it ¹²⁵ shall be unlawful and shall be deemed a corrupt practice for any corporation “directly or indirectly, by itself, or through any officer, agent or employe, representative, or other person whatsoever, to give, contribute, furnish, lend or promise any money, property, transportation, means or aid to any political party, or any candidate for public office, or for nomination thereto, or to any political organization, or to any political committee, or to any treasurer or political agent, as herein defined, either directly or indirectly, to aid, promote or influence the success or defeat of any political party or principal, or of any measure or proposition submitted to a vote at a public election or primary election in this State, or to aid, promote or influence in any manner the election or defeat of a candidate therein, or to be used, applied or ’ expended in any way whatever for political purposes.” Acts of 1945, Ch. 934, Sec. 157.

It is a cardinal rule of statutory construction that the intention of the Legislature should be sought in the first instance in the words of the statute. Where the language is clear and free from doubt, the Court has no power to evade it by forced and unreasonable construction in order to assert its own ideas of policy or morals. The Court has no right to sit in judgment upon the wisdom of the Legislature or to pass upon the expediency of the law. Leonard v. Wiseman, 31 Md. 201, 204 ; United States v. Standard Brewery, 251 U. S. 210 , 40 S. Ct. 139, 140 , 64 L. Ed. 229 .

However, as we have stated in Pittman v. Housing Authority of Baltimore City, 180 Md. 457, 463, 464 , 25 A. 2d 466 , the meaning of the plainest words in a statute may be controlled by the context. If a word is fairly susceptible of more than one interpretation, the Court should seek the legislative intention by considering the cause or necessity of the enactment and the mischief it was intended to remedy, and adopt the meaning which will harmonize with the general scheme of the statute and assist in carrying out the legislative purpose. Hawbecker v. Hawbecker, 43 Md. 516, 519 ; Mitchell v. State, 115 Md. 360 , 80 A. 1020 ; ¹²⁶ Brenner v. Brenner, 127 Md. 189 , 96 A. 287 ; Powell v. State, 179 Md. 399, 401 , 18 A. 2d 587 ; Roach v. Jurchak, 182 Md. 646 , 35 A. 2d 817 . The real intent, when ascertained, will always prevail over the literal sense of the language, because both the canons of verbal criticism and the rules of grammatical construction must alike yield to the manifest spirit and intent of an enactment.

Roland Park Co. v. State, 80 Md. 448, 451 , 31 A. 298 ; City of Baltimore v. Williams, 129 Md. 290 , 99 A. 362 ; City of Hagerstown v. Littleton, 143 Md. 591, 600 , 123 A. 140 ; Bouse v. Hull, 168 Md. 1, 4 , 176 A. 645 ; Bickel v. Nice, 173 Md. 1, 6 , 192 A. 777 ; Hopper v. Jones, 178 Md. 429, 431 , 13 A. 2d 621 ; State Tax Commission v. Potomac Electric Power Co., 182 Md. 111 , 32 A. 2d 382 ; Maryland Unemployment Compensation Board v. Albrecht, 183 Md. 87, 94 , 36 A. 2d 666 ; Celanese Corporation of America v. Davis, 186 Md. 463 , 47 A. 2d 379 . At common law the tendency of the courts was to apply a strict rule of evidence in cases of corruption, and alleged fraud, bribery, coercion or intimidation was required to be established clearly. Attempts to prove corruption were attended with great expense and practical difficulties, and consequently it was only in the most glaring cases that the jurisdiction of the courts was invoked. Efforts to eradicate the corruption of the electorate in England led to the enactment of the Corrupt and Illegal Practices Act of 1883.

In the early days of America, when the electoral machinery was not so vast, the use of enormous campaign funds was unknown. With the growth of big business, the political machines each year became more dependent upon the large corporations as a source of revenue to conduct the campaigns, and each year the financial interests exerted a greater influence in political affairs. In most instances the corporations made the contributions, not because of any interest in the welfare of a particular party, but for the purpose of securing special privileges. Occasionally the party machine forced the corporations to pay heavily for rights to which they were already fairly entitled, ¹²⁷ but it was considered more expedient to pay than to resort to litigation.

New York adopted the first Corrupt Practices Act in the United States in 1890, based on the English Act. Michigan and Colorado adopted similar Acts in