Sun Cab Co. v. Cloud

Bond, C. J., delivered the opinion of the Court. The appellant, intervening as a defendant in a suit by the appellees against the Secretary of State and the Board 'of •Supervisors of Elections of Baltimore City, has appealed from the overruling of its demurrer to the bill of complaint upon which the appellees seek a declaration that an act of assembly is now in force and effect, notwithstanding the signing and filing of petitions for a referendum and popular vote upon it, and an injunction restraining the referendum. The act is chapter 485 of the Acts of 1931, and by its terms the operators of taxicabs in cities and towns having populations of more than 50,000 persons are required to obtain permits from the Public Service Commission of the State, and to take out liability insurance policies or give bonds to indemnify persons whom they might injure. And the bill of complaint charges that the signatures attached to the petitions for the referendum fall short of the constitutional requirements, that many are forgeries, some of the names are fictitious persons, others of persons who had died before the time of signing, others still of persons who-, though residents in Maryland, lacked the requisite qualifications, and that the petitions do not bear the affidavits required.

The Secretary of State and the Board of Supervisors of Elections appeared and answered the allegations of the bill. Although the act was to take effect as law, in regular course, on June 1st, 1931, its provisions were not to- become operative until January 1st, 1932. The Constitution, art. 16, sec. 2, provides that, if before the 1st day of June there shall have been filed with the Secretary of State a petition to refer to- a vote of the people any law capable of referendum as provided later in the article, the law shall be referred to the vote by the Secretary of State, and shall not become an effective law until thirty days after approval by a majority of the electors voting thereon. Section 3 of the article fixes the requirements for referendum petitions.

They must ⁴²² be signed by 10,000 qualified voters of the state, and, if more than half but less than the whole of that number sign, and their signed petitions are filed with the Secretary of State before June 1st, the time for the law to take effect and for filing the remainder of the 10,000 signatures shall be extended to June 30th. Each form of petition signed must contain the affidavit of the person procuring the signature, that of his own personal knowledge each signature is genuine and bona fide, and that the signers are registered voters of the State, and of the city or cotanty, as the case may be, set opposite their respective names. How it shall be ascertained whether these constitutional requirements have been met by petitions'filed, the referendum article has not prescribed. The bill of complaint avers that before and during the month of June forms' of petitions bearing a total of more than 10,000 names, and pretended signatures, were filed in the office of the 'Secretary of State, but that upon investigation the alleged forgeries and frauds were discovered, and that in fact signatures in the number required, duly supported by affidavits, were never filed with the Secretary of State.

Nevertheless, it is averred, as a result of the filing of the forms of petition, the act has so far been treated as suspended, its provisions have not yet been enforced, and the evils sought to be remedied by it have increased, to the detriment of the public, and also to that of taxicab owners and operators, including the complainants, who already conform to the requirements. The appellants sue as taxpayers, on behalf of themselves and any other taxpayers who may join as complainants, averring that, if the referendum should proceed upon the petitions so charged with fraud, the taxpayers will be put to wrongful expense for the publication of the referendum and the printing of it on the ballots of the next general election, in November of 1932. On these averments the interference of the court of equity by injunction has been sought, and a preliminary order has been passed declaring the petitions ineffectual for the purpose of suspending the operation of the act, and declaring the act to be in full force and effect, and a preliminary injunction has been ordered — • ⁴²³ all subject to rescission and dismissal upon motion of the defendants. The demurrer of the Sun Cab Company, filed after its admission as a defendant, raises chiefly questions of jurisdiction.

There are four general contentions: (1) That a court of equity could have no jurisdiction to issue the injunction, because the limitation on its jurisdiction in respect to subject-matter, that is, limitation to the relief of civil or property rights, excludes the restraining of political and election officials in the holding of an election, or interference in the process of legislation, in which the referendum sought would constitute one step, and, in so far as there may be any remedy in respect to those subjects, it must be by the writ of mandamus, at law; (2) that the complainants have no right as taxpayers to the relief they seek, even if equity might assume jurisdiction of such a subject-matter, because they show no special injury distinct and peculiar to themselves; (3) that the Secretary of State, whose official residence is at Annapolis, cannot be sued, and cannot submit to be sued, in Baltimore City, and the court in Baltimore City cannot make its orders or decrees take effect outside of the city; and (4) that the bill of complaint is multifarious in combining the prayers for relief which it contains, both those as to subject-matter and those as to parties. Counsel have given the court the benefit of exhaustive studies and reviews of decisions applying the principles argued on one side and the other. Some of those reviewed are not upon exactly analogous situations. In this case the subject of controversy is the claim or pretension of individuals who have signed and offered the petitions to a right to have an act of assembly submitted to the test of a popular vote.

It is averred that the petitions are insufficient and the claim fraudulent, and the object of the suit is to prevent this action of private individuals from being given an effect to which it is not entitled if the averments of fact are true. The subject of controversy has some relation to a popular election or vote, some relation to performance of duties of administrative officers, and some relation to legislation. But ⁴²⁴ the attack is directly and principally upon the claim of the private individuals, the claim to a right to- the use of the governmental processes. And that is essentially a judicial controversy, as the parties agree.

The court is not asked to interfere in any discretionary performance of duties by officials; the officials would be, in this instance, only ministerial agents or channels, for the- proceeding which the proponents, seek to initiate. Their relation, or the relation of the State as a whole, is at this stage only that of a passive medium; and it is appropriate that in such a controversy the-private individuals or corporations making the claim to the referendum should be admitted as parties defendant. And the court, again, is not asked to interfere directly in an election or in the process of legislation; to repeat, it is rather-asked to determine no-w whether private individuals are such as may, under the Constitution, require an election or popular vote, or interfere in the processes of legislation. And many of the decisions cited have- dealt with controversies of a different kind, immediately connected with activities committed to- the executive or legislative- departments of the government.

It is, of course, true that the- courts cannot invade the fields of government committed to the other departments, and consequently that they cannot, generally speaking, interfere to control the holding of elections, in the usual meaning of that term, or interfere in any p-art of legislation. Hardesty v. Taft, 23 Md. 512, 530 ; Hamilton v. Carroll, 82 Md. 326 , 33 A. 648 ; McCrary, Elections, sec. 386; High, Injunctions, sec. 1250. But it is not true that equity can never interfere with the taking of a popular vote. The contrary is familiar, well-settled law.

In Graf v. Hiser, 144 Md. 418 , 125 A. 151 , to take one of many illustrations available, this court held that an-injunction should have issued to restrain a popular referendum to determine whether an act of assembly providing for a special taxing district in Prince George’s County should take effect as law. The required preliminary notice had not been given in that case. And the injunction ordered was to restrain public officers, the “District Citizens ⁴²⁵ Committee,” and the County Commissioners of Prince George’s County, and was to interfere in legislation in so far as the popular vote constituted a step in the legislative process. Brawner v. Supervisors, 141 Md. 588 , 603, 119 A. 250 .

So1 the County Commissioners of Montgomery County were held properly restrained from holding a special election, improperly called, to determine a question of a special tax levy and a bond issue for a county improvement provided for in an act of assembly. Montgomery County Commissioners v. Henderson, 122 Md. 533 , 89 A. 858 . Decisions to that effect have been numerous. On the contention that, in so far as the. controversy may be one which a court may adjudicate, it cannot be settled by an injunction issuing out of a court of equity, but must be dealt with under a writ of mandamus, at common law, we are unable to see why the principles followed in the cases just cited, those of Graf v. Hiser and County Commissioners v. Henderson, do not apply and control the decision.

Against this view it is argued that the Maryland eases in which injunctions against popular votes have been issued have all been concerned with votes upon purely local improvements and tax burdens, and consequently with elections in restricted localities only. JNo Maryland case, it is urged, and few, if any, in other jurisdictions, have ever held that a court of equity might enjoin the holding of a. state-wide election upon a question concerning the state as a whole. And the election required upon a referendum of the act now involved would be state-wide. But the fact does not, so far as we can see, afford any ground for distinction in the problem with which we are engaged.

In that problem it seems to be a matter of indifference whether the project to be voted on is. of statewide concern or of only local concern. The governmental action in both cases seems to be the same in legal nature and quality, and the referendum sought and opposed seems to be substantially the same in both cases. The situation averred in the bill would be one pre-eminently demanding preventive interference, at suit of the proper parties, because stopping a false pretension to a right to a referendum is obviously ⁴²⁶ better done at the start than at some later stage in its career. Fbt only would expense then be saved, but wrongful immediate suspension of the legislative enactment, awaiting the time for an election, would be avoided.

The original bill in this case was filed more than a year before the time for the election, so that, if the allegations are true, a year’s wrongful suspension of the act might then have been avoided as an incident to' an injunction denying any future effect to the petitions. This court