Anderson v. Baker , 1865 Md. LEXIS 46 ( 1865 )

Bartol, J.,

dissented, and filed the following opinion:

The first question presented by the record in this case is, whether the provisions contained in the fourth section of the first Article of our State Constitution are in conflict with the provisions of the Constitution of the United States ?

Before proceeding to examine that question, it is necessary to determine whether it is one which this Court has the jurisdiction and power to decide. Looking to the structure and organization of our Government, and to the whole current of authorities, this point seems to me to be free from all possible doubt or difficulty.

The cases that have heretofore arisen, involving the constitutionality of Acts of Congress, or laws of a State, have been decided upon principles and reasons too firmly established to be now disturbed, and are plainly applicable.. See Kent’s Commentaries, vol. 1, 449 to 454, where the cases are collected. On page 453, the author says: “In Marbury vs. Madison, 1 Cranch, 137, the subject was brought under the consideration of the Supreme Court of the United States, and received a clear and elaborate discussion'. The power and duty of the judiciary to disregard an unconstitutional Act of Congress, or of any State Legislature, were declared in an argument approaching to the precision and certainty of a mathematical demonstration.”

The principles established by that groat case, have been ever since universally recognized and adopted.

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule; if two laws conflict with each other, the Courts must decide on the operation of each; so if a law be in opposition to the Constitution, if both the Constitution and the law apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” 1 Cranch, 177.

How it requires no argument to show that the same principle must govern Courts of Justice, when they are compelled to decide whether anj*- provision in a State Constitution is repugnant to the Constitution of the United States. This last being the paramount law, if they are repugnant to each other, must prevail. This, in the language of Chief Justice MARSHALL, is “emphatically a judicial question,” to be decided by the Courtsit cannot in any sense be called a political question, to be finally determined by the Legislative or Executive Department. Uor is it concluded by the adoption of the Constitution, and the organization under it of the State Gfovernment. So to maintain would render nugatory and worthless the limitations upon the powers of the States found in the Constitution of the United States. Those limitations are imposed, not only upon the State Legislatures, but upon the States themselves, and can no more be transcended or violated by tbe organic law of a State, tban by a law enacted by tbe Legislature.

To illustrate this, let us suppose that a State were to adopt a Constitution, containing a clause repealing a private charter, or impairing tbe obligation of any other valid and subsisting contract made either by tbe State, or between its citizens; would it be for a moment contended, that such a provision would be valid, in the face of tbe express prohibition contained in tbe Constitution of tbe United States, declaring that no State shall pass any law impairing tbe obligation of a contract. Tbis point was expressly decided by the Supreme Court in Dodge vs. Woolsey, 18 Sow., 331. Tbe same principle must apply'where tbe case is within any of tbe other inhibitions upon State legislation, contained in the Constitution of the. United States. That Constitution, Art. 1, sec. 10, declares that “no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” The only part of this section which can apply to the present •case, is that which inhibits the passage'of any ex post fac-to law. Are the provisions of the 4th section of the 1st Article of the State Constitution ex post facto, in the sense in which those words are used in the Constitution of the United States ?

This is a most grave and important question, none more so, has ever been presented to the Appellate Court of our State for decision. I have given it as full and careful examination as it has been in my power, and shall proceed to express my opinion upon it, adopting as my guide, the language of Chief Justice Buchanan, when dealing with a kindred subject: “It has been said, that a legislative Act should not be pronounced unconstitutional or invalid in a doubtful case; nor should it, where the doubt is bona fide and well founded, and not the result of a disinclination to deny the authority of the Legislature, which all must feel, but none should yield to, in violation of a solemn duty. But where a Judge is satisfied, upon full consideration, that an Act of the Legislature is contrary to the Constitution of the United States, the supreme law, which he is hound to ohoy, and which must prevail over any Act that -comes in conflict, and cannot stand with it, or is for any other reason invalid, he has no choice; and all that is left him, is honestly and fearlessly to do his duty; from the faithful discharge of which, however unpleasant the task, no upright Judge can shrink if he would. On the other hand, a Judge should not suffer himself to he betrayed to pronounce an Act unconstitutional or invalid on insufficient grounds by a morbid apprehension that a contrary decision might be ascribed to the want of a proper sense of judicial duty.” Regent’s case, 9 Gill, 383.

It was suggested in the argument, that the Court ought to construe the 4th section, Art. 1 of our Constitution, as operating prospectively from the time of its adoption, and thus avoid the difficulty. Such, no doubt, is the general rule of construction.

In Baugher vs. Nelson, 9 Gill, 303, which was a case involving the construction of the Act of 1845, ch. 352, the Court, after stating the general rule, said : “But this general principle, salutary and well established as it is, as an element of jurisprudence, can have no application to a case, when the Legislature have declared in language too express and plain to be mistaken, that they designed to give to the Statute in question, a retroactive operation.” Here, as in that case, the words are “too plain for dispute, there is no room for construction.” It is impossible, therefore, to adopt the construction of this section, suggested in argument, and declare that it is not retroactive in its operation.

But all retroactive laws are not ex post facto, in the meaning of the Constitution of the United States. Those words have been declared to have a technical meaning more restricted than their ordinary and common signification. This leads me to inquire what is the true meaning of the term ex post facto law, in the Constitution of the United States ?

The cases in the Supreme Court, in;which they have come under consideration, are : Calder & Wife, vs. Bull, 3 Dall., 386. Fletcher vs. Peck, 6 Cranch, 87. Satterlee vs. Matthews, 2 Peters, 413. Watson vs. Mercer, 8 Id., 88. Charles River Bridge vs. Warren Bridge, 11 Id., 423. Carpenter vs. Com. of Pa., 17 How., 456. They have also been considered in many cases arising in the Courts of the different States; among those I have examined are: Strong vs. Nash, 1 Blackf. Ind. Rep., 193. Lock vs. Dane, 9 Mass. Rep., 362. Ross’s case, 2 Pick., 169. Baugher vs. Nelson, 9 Gill, 229.

These cases do not appear to be in conflict, although different Judges have used different language, in defining the terms ex post facto, as used in the Constitution. In Calder vs. Bull, Judge Chase defined an ex post facto law to be;

1st. “Every law that mates an action done before the passing of the law, and which was innocent when done criminal; aud punishes such action.”

2nd. “Every law that aggravates a crime, or mates it greater than it was when committed.”

3rd. “Every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed.”

4th. “ Every l.aw that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender; all these and similar laws, are manifestly unjust and oppressive.”

The other Judges who delivered separate opinions, concurred substantially in the same views; and the subsequent cases have affirmed the same rule of interpretation.

In Fletcher vs. Peck, 6 Cranch, 138, Chief Justice MARSHALL, defined an ex post facto law, as one “which renders an act punishable in a manner in which it was not punishable when committed.” He adds, “Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public Treasury.” ,

Chancellor Kent, 1 Com., 409, after giving Chief Justice MARSHALL’S definition, says : This definition is distinguished for its comprehensive brevity and precision, and extends to laws passed after the act, and affecting the person by way of punishment of that act, either in his person, or estate. Ex post facto laws relate to penal and criminal proceedings, which impose punishment' or forfeiture, and not to civil proceedings, which affect private rights retrospectively. Retrospective laws and State' laws, divesting vested rights, unless ex post facto, or impairing the obligation of contracts, do not fall within the prohibition contained in the Constitution of tlxe United States, however repugnant they may be to the principles of sound legislation. I have quoted thus at length from Chancellor Kent, because I believe he states correctly the result of the various decisions upon this subject.

The same construction is adopted by Judge Stoet, 3 Com. on Const., sec. 1339.

It is argued that the provision of our State Constitution under consideration, cannot fall within the definition of an ex post facto law, because it relates to the elective franchise, and is intended to fix the qualification of voters; and that being a subject belonging exclusively to the people of the State; the Courts of the United States, have nothing to do with it.” There can be no doubt of the soundness of the position, that the States have the sole and exclusive power of regulating the right of suffrage, and of fixing the qualification of voters, and that the Federal Government cannot constitutionally control or interfere with the State in the legitimate exercise of that power; but it by no means follows that the State can, in the exercise of that power, or of any other of her reserved powers, so legislate as to inflict upon the citizen by way of punishment, pains, penalties or forfeiture by law enacted, ex post facto, within the prohibition of the 10th section, Art. 1st, of the Constitution of the United States. As well might it be said that, her-. cause the State has exclusive jurisdiction over contracts, between her citizens and the remedies for their enforcement,, that she can by iaw or Constitution, deprive the citizen of the protection thrown over him by the Constitution of the United States, which maintains the obligation of thé contract inviolate and beyond the power of the States to impair it.

The provision which protects his person and his property from the unjust operation of ex post facto laws, is equally comprehensive, and, where it applies, is alike inviolate by the State, no matter by what form of legislation.

By this construction alone, will those provisions in the Constitution of the United States prove, as they were designed, ‘‘ a bulwark in favor of personal security and private rights ?” If then, the provisions of the 4th section, are within the meaning of the Constitution of the United States, an ex post facto law, they are not protected from its operation; because they form part of the organic law relating -to the right of suffrage. Are they ex post facto in the sense and meaning of the Constitution of the United States ? They are retroactive, and relate, to acts done and words spoken antecedently, before the adoption of the Constitution, and declare that no person who has at any time done the acts or made the declarations therein enumerated,, “shall ever be entitled to vote at any election to be held in this State, or to hold any office of honor, profit or trust under the laws of this State, unless, since such unlawful acts, he shall have voluntarily entered into the military service of the United States, and been honorably discharged therefrom, or shall be on the day of election, actually and voluntarily in such service, or unless he shall be restored to his full rights of citizenship by an Act of the General Assembly, passed by two-thirds of all the members elected to each house.”

To ascertain the true construction and effect of these provisions, it is necessary to examine the first, third and fifth sections of the same Article, and the seventh Article of the Declaration of Rights, which must be construed with them.

This Article declares, “that the right of the people to participate in the Legislature, is the host security of liberty, and the foundation of all free Government; for this purpose elections ought to he free and frequent, and every free ■white male citizen having the qualifications prescribed by the Constitution, ought to have the right of suffrage.”

The qualifications of a voter are prescribed in the first section, they are: “Every white male citizen of the United States, of the age of twenty-one years or upwards, who shall have resided in the State one year next preceding the election, and six months in any county or legislative district of Baltimore city, and who shall comply with the provisions of this Article of the Constitution, shall be entitled to vote at all elections hereafter held in this State.”

The 3rd, 4th and 5th sections, declare the causes of disqualification, or causes for which the citizen forfeits the right of suffrage. With the exception of lunatics, or persons noli compos mentis, who are incapable of doing any valid civil Act, and are therefore excluded, all the causes of disqualification named in the 3rd, 4th and 5th sections, are either for offences before known to the law, or so declared by the Constitution.

By the 3rd section, persons convicted of larceny or other infamous crime, unless pardoned by the Governor, are disqualified. Here, disfranchisement is a punishment consequent upon conviction; this provision is prospective only in its operation.

By the 5th section, persons convicted of bribery at elections and other offences therein enumerated, are in addition to the penalties imposed by law, disqualified from voting of holding office.

By the 4th section, persons who have at any time done the acts, or made the declarations therein enumerated,— some of them being offences against the United States, and some of them, to wit: words spoken and desires expressed,— not offences known to the law before the adoption of the Constitution, and which are therein for the first time, declared to be unlawful, are punished with disfranchisement. It is said, that disfranchisement, under the 4th section, is not intended as punishment. But in the Constitution itself, in the 5th section, disfranchisement is expressly declared to he punishment. How then, can it he said, that in the 4th section, where the same consequence is denounced against the persons who have committed the unlawful acts therein enumerated, can the disfranchisement he construed, not to be punishment.

This, then, is in the nature of a criminal enactment, for it declares certain acts to he unla-wful, and provides, as a consequence of their commission, that the offender shall he disfranchised. The criminal character . of the provision would scarcely he disputed, if the Constitution provided in terms that the offence should he evidenced as the case of larceny and bribery, by conviction in a Court of justice. But it cannot change the penal character of the enactment, if the law-making power fails to secure to the accused the safeguard and protection of a trial according to the law of the land.

If I am right in this construction, then the 4th section is an ex post facto law, within the strictest definition of those terms; and therefore within the inhibition of the Constitution of the United States.

The next question to he examined is, whether the provisions of the Act of 1865, ch. 174, entitled, an Act for the registration of the voters of the State, are in conformity with the Bill of Rights and Constitution of Maryland? This question will he considered apart from any objections to the provisions of the Constitution, and assuming them to he in all respects valid.

It is contended that the Act is null and void, because it is not ‘ Enacted in articles and sections, in the same manner as the Code is arranged,” as directed by section 28 of Art. 3 of the Constitution. It is plain, upon an inspection of the Act, that this direction has not been complied with; it is passed in the ancient form used and practiced before the Code was adopted. The 28th section of the 3rd Article contemplates and directs that the law, in its body and form, shall he codified by the Legislature in passing it; such has been the uniform construction of that section, and the practice under it since the Code was adopted. The provision is the same as was contained in the Constitution of 1851. In this respect the Legislature have failed to observe the directions of the Constitution.

The Act passed at the same session, ch. 159, does not, in my opinion, remove the objection. That Act does no more than declare the purpose of the Legislature with regard to laws thereafter to be enacted on the subject of registration, but does not in fact codify them. I do not think, however, that this omission renders the Act void. The provision of the Constitution, in this respect, is-directory merely; and although a compliance with it would promote the public convenience, and carry out the policy of the State, by maintaining uniformity in the Code embodying the general statute law; yet, looking upon the words of the Constitution as directory only, and relating to form rather than substance, a failure to comply with the form prescribed, would not, either upon reason or authority, render the Act null.

Ear more grave and serious, and, in my opinion, fatal objections to the Registration Act now under consideration, present themselves when its several provisions are examined and brought to the test of those vital and fundamental principles embodied in our Declaration of Rights, which form part of our organic law, and are designed as restraints upon the powers of the Legislature, as well as of the other departments of the Government, and which are, in the language of Chancellor Kent, “part of the muniments of freemen, showing their title to protection.” 2 Kent, 8.

The provisions of the Registration Law are, in my opinion, repugnant to the Declaration of Eights of 1864, aiid are not authorized or sanctioned by the Constitution of Maryland. The Bill of Rights and the Constitution form one instrument, and are to be construed together. So far as this question is concerned, they are not in conflict.

The plain, construction of the 1st, 2nd, 3rd, 4th and 5th sections of the 1st Article of the Constitution, and the tth Article of the Bill of Rights, is, that the right of suffrage is secured to every white male citizen of the United States, of the age of twenty-one years or upwards, and having the requisite residence, unless for some of the causes enumerated in the 3rd, 4th or 5th sections, he is disqualified, or that right has been forfeited. Of course I do not hold that the right of suffrage is a natural or inherent right, existing independently of the organic law. Eor the purposes of this question, I treat it as a right to he exercised only in conformity with the organic law ; but where it exists, it is a most valuable right, entitled to the same protection as the right to any property or franchise. Where the qualifications enumerated in the 1st section, exist, the right of suffrage is conferred upon the citizen, and to deprive him of that right, the cause of disqualification must be shown.

By the 2nd section of the 1st Article, and the 41st section of the 3rd Article, it is made the duty of the Legislature to pass laws for the registration of voters. How is that power to be exeroisod? The Constitution does not prescribe the mode, further than to require that it shall be done by law. Here the subject is left to be dealt with by the Legislature in the same manner as they may deal with any other subjeot confided by the Constitution to their authority, and to be regulated by law, passed, in subordination to the restraints upon the legislative will, imposed by the Declaration of Rights, and in suoh manner as that the citizen shall not be deprived of those securities for his protection, guaranteed to him by the organic law, and of which the Legislature cannot constitutionally deprive him.

By the Registration Act, the Legislature has conferred upon the officers of registration the most extraordinary and despotic powers, which are thus briefly but oorreotly stated in the appellant’s brief:

1. They have the power of summoning witnesses to prove the qualification of voters, and are invested with judicial functions, the same as a Judge of a Circuit Court, for the purpose of issuing summons, attachments and commitments.

2. They are authorized to pronounce judgment against any citizen for acts committed within or without the jurisdiction of Maryland, which amounts to a forfeiture of his right to vote.

3. They are not required to give any notice of the charges to tho accused party, or to confront him with witnesses, or to try him hy jury, or to keep any written record of the trial.

4. They are only required to record his conviction in these words, “disqualified for disloyalty under Article 1 of the Constitution.”

5. The ordinary rules of evidence are disregarded; tho guilt of parties accused of treason and bribery, is permitted to he proved without trial or conviction by a competent Court; a party is required to testify against himself, particularly hy section five, wherein the registrars are directed to exact an oath from the citizen to answer any questions touching his right of voting, and this even when his oath may be discredited.

6. The judgment of the registrars disfranchises tho citizen forever, unless discharged by a two-thirds vote of the General Assembly.

It seems to me that the Act is in plain conflict with the 2nd Article of the Bill of Rights, by depriving tho citizen of the benefit of “the common law, and tho trial by jury, according to the course of that law.” 2nd, With Article 20, which declares that the trial of facts when they arise, is one of the greatest securities of the lives, liberties and estate of the people. And especially with Article 23, which declares “that no man ought to be taken or imprisoned, or disseised of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, hut by the judgment of his peers, or by the law of the land.”

These words, “law of the land,” first used in Magna Charta, have been universally interpreted to mean “law in its regular course of administration through Courts of Justice.” See Coke’s Inst., 45, 50. 2 Kent, 13. Story on Const., 661.

In 9 G. & J., 412, Chief Justice Buchanan said these provisions in the Bill of Rights “were intended as restraints upon the legislative power, by means of Courts of Justice, in which the laws were to he administered, and where all would be entitled to he heard, and have an opportunity afforded them of asserting and defending their rights against any attempted invasion.” See 2 Md. .Rep., 452. 1 Md. Ch. Dec., 252. 3 Kern., (N. Y.,) 394, &c.

In 4 Hill, 145, Chief Justice Bhonson, speaking of the provision in the Constitution of New York, said: “The words law of the land, as here used, do not mean a statute passed’for the purpose of working the wrong;” and again, “the meaning of the section then seems to he, that no member of the State shall he disfranchised of any of his rights and privileges, unless the matter he adjudged agamst him upon trial had according to the course of the common' law.”

The Registration Act, by making the decision of the registrars final, and failing to provide any appeal or other mode by which the right of the citizen to his franchise might he tried and determined in due course of law, deprives him of the protection of this great provision in our Bill of Rights. The powers conferred by this Act upon the registrars, are wholly dissimilar from those heretofore held and exercised by judges of election in this State, and no analogy can properly he drawn between them; nor, does it seem to me, is any precedent furnished by our past legislation for conferring upon subordinate tribunals, created by the Legislature, such extraordinary and absolute judicial powers. The provisions of the Constitution do not, in express terms, authorize the Legislature to confer such powers on the registrars, and such authority cannot be implied in the face of the express prohibitions of the Declaration of Rights.

Believing the provisions of the Registration Act to he plainly repugnant to the Declaration of Rights, I thinh it ought to be declared inoperative, and that the writ of mandamus prayed for by the appellant ought, for that reason, to ho refused.

Goldsborough, J.

Without expressing my views seriatim upon the important questions involved in this case, I am content to unite with the majority of the Court in affirming the order of the Court below, for the reasons assigned by my brothers, Bowie, Cocheas and Weisel, in their respective opinions.