Williams v. Broening, Mayor

Adkins, J., delivered the opinion of the Court. This is an appeal from the refusal of the Circuit Court of Baltimore City to enjoin the Mayor and City Council of Baltimore from continuing the publication of an advertisement of a proposed amendment to the Charter of said city relating to the taxation of real and personal property in the territory annexed to Baltimore City by Chapter* 98 of the Acts of 1888, and the Supervisors of Élection. of said city from placing upon the official ballot to be used at the General Election to he held in said city on November 4th, 1919, and from using any public money or funds for defraying the costs of such advertisement or of printing said proposition on the official ballots. The proposed amendment provides that: “The Charter of Baltimore City shall be amended by repealing all of Section 4 of Article T of said Oharter and substituting in lieu thereof the following: “4. All property, real and personal, situated or held in the territory annexed to Baltimore City by the Act of 1888, Chapter 98, shall be subject to levy, taxation and assessment in the same manner and form and at the same rate of taxation as property of similar character or description within the limits of said City as ²²⁹ they existed prior to the passage of said Act may be subject.” The right to submit the proposed amendment is contested by the appellants on the following grounds, as alleged by them: 1.

The Charter of Baltimore City supposed to have been adopted under Article XI-A of the Constitution, known as the Home Rule Amendment, was never validly adopted because : (a) It was not published by the Mayor as required by Article XI-A in two newspapers of general circulation published in the City of Baltimore within thirty days after it was reported to him by the Charter Commission. It was published in the “Daily Record” and in the “Municipal Journal,” and the contention of appellants is that neither of these papers was a newspaper of general circulation. (Z>) It was not submitted to the voters of said city at th« next general or congressional election after the report of said Charter to the Mayor of Baltimore as required by said Article XI-A, in that the four new wards added by the Act of 1918 were not included with the rest of the city in voting on the proposition. 2. The proposed measure is in excess of the power to amend the Charter conferred by Article XI-A, Section 5, even if the new Charter was validly adopted.

It is manifest if either of these objections was well taken, the injunction should have been granted. We shall first dispose of the first objection. Every intendment should be made in favor of the validity of the Charter after the lapse of so long a time since it went into operation. Until October of the present year no question seems ever to have been raised as to the sufficiency of the publication of the Charter.

In the meantime a Mayor and City Council have been elected and we cannot say what complications might arise if the Charter should be stricken down. ²³⁰ We do not regard the provision in the Constitution as to the character of newpapers in which the charter was to be published before submission as so far mandatory in its nature as to render the charter after its adoption subject to attack by reason of a question as to the extent, of the circulation of the papers selected by the Mayor as mediums of «.publication •unless it be shown that the failure to comply strictly with the constitutional provision affected the result of the vote on the, proposition. In Carr v. Hyattsville, 115 Md. 545 , the statute under consideration was one submitting to the voters of Hyattsville the question whether certain streets should be improved. The statute provided that for the special election to determine said question ballots should he prepared having printed on them “For, the Act to Improve the Streets” and “Against the Act to Improve the .Streets.” But the ballots voted at the election had printed on them the words: “For the Road Bill” and “Against the Road Bill.” The majority of the ballots cast at the election were marked “For the Road Bill,” and after canvassing the vote, the Mayor and Common Council declared the Act to be in full force and effect. Acting under the power conferred by the Act, the Mayor and Common Council passed an ordinance for the improvement of the road bed of Spencer street, one of the streets of said Municipal Corporation, and also providing for notice to the owners of abutting property, and for the assessment for the cost of improvements against such property.

A tax payer filed a bill to enjoin the Mayor and Common Council from making any assessment against his property for the improvement of said roadbed, and from enforcing any assessment against his property for that improvement, on the ground that the Act had never become effective and operative, because the ballots east at the election were not prepared in strict conformity to the requirements of its provisions. The defendant demurred to the bill, and the lower Court susr ²³¹ tained the demurrer. This Court approved the ruling of the lower Court and in passing on the question at issue said: “The simple and sole question in the case is this: Did the preparation and voting of the ballots in the manner in which they were prepared and voted prevent the Act from becoming a valid and effective law ? If so, it can only be because the provisions of the Act relating to the form of the ballot are mandatory and to be strictly observed.

We do not think that the form of the ballot as prepared was an es-seutial departure from the requirements of the Act, and it would seem to he reasonably certain that the voters understood that they were voting for or against the approval of this particular Act, and did approve it by a majority vote. “The Court ought not to set aside their clearly expressed will, unless required to do so by some imperative rule of law. Mr. McCrary in bis work on elections, section 190, says: ‘If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits, or affects the result of the election or not. 'Such a statute is imperative, and all consideration touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, that statute simply provides that certain acts or things shall be done within a particular time, or in a particular manner, -and does not declare that their performance is essential to the validity of the election, then they will he regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.’ The rule is thus stated in Pain on Elections, Sec. 498: ‘In general, those statutory provisions which fix the day and the place of the election and the qualification of the voters are substantial and mandatory, while those which relate to the mode of procedure in the election, and to the record and return of the results are formal and directory, -x- * x The m]es prescribed by the law for conducting an ²³² election are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent-illegal votes, and to ascertain with certainty the result. Generally such rules are directory, and not mandatory, and a departure from the mode prescribed will not vitiate an election, if the irregularities do not deprive any legal voter of his vote, or admit an illegal vote, or cast- an uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from them.’ “The rule stated by these authors appears to- be adopted by the great, majority of the courts in this country. * * * “The plain purpose of the Legislature was that this act should become effective if approved by a majority of the voters at the special election, and the object of providing the form of ballot Was to ascertain the will of the- majority of the voters on the question of its approval, and since that majority did approve the act under the form of ballot used, which was substantially, but not strictly, in the words provided in the act, the will of the majority should not be set aside for any of the reasons stated in the bill.” See also the case of Prince George's County v. B. & O. R. R. Co., 113 Md. 179 , where this Court decided that the provision in Article 3, Section 29 of the Constitution that “the style of all laws of this State shall be, 'Be it enacted by the General Assembly of Maryland,’ ” is directory and not mandatory.

In the case at bar the Charter was published in the Daily Record,