Board of Supervisors of Election for Wicomico County v. Todd , 62 L.R.A. 809 ( 1903 )

The Act of Assembly of 1896, ch. 195, a public local law of Wicomico County, enacted in its first section "that whenever such of the registered qualified voters of Wicomico County, or of any election district, city or town thereof, as constitute one-half of all the votes cast for all of the candidates for Governor at the last election in said county, or in an election district, city or town thereof, shall petition the Circuit Court for said county for the submission, at the next regular congressional election held in said county of the question of granting or not granting any license for the sale of intoxicating liquors for beverages therein, the said Circuit Court shall, within ten days after the receipt of said petition, issue an order for an election on this question to the sheriff of the county, whose duty it shall be to give the same notice and perform all other acts required of him for the holding of elections under the election law of this State, and subject to like penalties in case of his default in his performance of said duties."

The second section enacts "that such election shall be held and conducted under the provisions of the election law applicable to the said county." The 3rd section provides that after an election so held there shall be no other such election within four years. The 4th section provides how the question thus to be submitted to vote shall be indicated on the ballots; how the preference of the voters upon the question is to be made to appear and be ascertained; how the ballots are to be counted and canvassed in respect to this question; how the result of the voting is to be certified; and how notice is to be given of the result in case it shall "appear that the majority of the votes cast is against the sale of intoxicating liquors for beverages." The succeeding sections of the law in question are provisions for carrying into effect the prohibition of the sale of intoxicating liquors for beverages in the county, election district, city or town as the case may be, according to the submission made in respect to locality, when it appears that a majority of the votes cast upon "the question of granting or not granting any license for the sale of intoxicating liquors," c., is against the granting of such license.

This case arises under this law and originated in a petition for the writ of mandamus filed in the Court below on the 24th day of October, 1902, by the appellees, George W. Todd and William A. Crew, against the appellants, in which it is alleged that the petitioners "together with four hundred and forty (440) other voters and residents" of the ninth election district of Wicomico County, on the 18th day of October, 1902, presented to the Circuit Court for that county a petition verified by affidavit praying the Court "to submit to the voters of said district the question of granting or not granting any license for the sale of intoxicating liquors for beverages therein * * in pursuance of the provisions contained in sec. 1 of ch. 195 of the Acts of Assembly of Maryland of 1896;" that upon "the hearing of said petition and the motion of the objectors thereto" the said Court passed the following order. "No sufficient cause to the contrary having been shown it is this 23rd day of October, 1902, ordered by the Circuit Court for Wicomico County, Maryland, that in pursuance of sec. 1, ch. 195 of the Acts of 1896, the Sheriff of Wicomico County, Maryland, shall submit to the voters of the ninth election district of Wicomico County the question of granting or not granting licenses for the sale of intoxicating liquors for beverages in said district and the clerk is hereby directed to serve a copy of this order on the said Sheriff of Wicomico County immediately; that in pursuance of said order the Sheriff on the 24th day of October, 1902, notified the County Commissioners of said county and on said day the County Commissioners notified the Supervisors of Election of said county; but said Supervisors refused "to advertise the question" and were "preparing the official ballots to be used in said district without any provision for the submission of the aforesaid question to the voters." It is then prayed that the writ be issued "directed to the said Supervisors of Election of Wicomico County," who are the appellants here, "commanding them to advertise said question, and to prepare the official ballots to be used in the ninth district of Wicomico County ____ at the election to be held on November 4th, 1902, in accordance with the provisions of section 4 of said chapter 195 of the Acts of 1896."

Upon this petition the Court below passed an order that cause be shown immediately by the appellants why the writ of mandamus should not issue. On the same day that this order was passed the appellants filed their answer in which they admitted the allegations of fact in the petition and rested their refusal to advertise the question of granting or not granting licenses for the sale of liquor and to place such question upon the ballots at the approaching election as set out and stated in the petition upon the ground that the Act of 1896, chapter 195, is unconstitutional and void; that if not unconstitutional it is in conflict with the provisions of chapter 202 of the Act of 1896 from which the appellants, as Supervisors of Elections derived all of their powers and authority over elections in said county; and that by section 47 of the said chapter 202 of the Act 1896, "all questions of local concern which are to be submitted for approval to the vote of the people" of a county must be certified to the Board of Supervisors of Elections by the County Commissioners of the county not less than thirty days before the election at which such question is to be submitted; and that the question of granting or not granting any license for the sale of intoxicating liquors in the 9th election district of Wicomico County had not been so certified thirty days before the election as a question to be submitted for approval. The appellees demurred to the answer; and upon hearing the Court on the same day the answer was filed, October 24th, 1902, ordered the writ ofmandamus to issue as prayed. From such order this appeal was taken.

In the view we take of this case the ground of defense first set up in the answer of the appellants against the application for mandamus is sufficient to dispose of the case upon this appeal and it will be unnecessary to consider any other. We think it advisable to dispose of it upon this ground because future litigation under the law in question will thus be avoided. The Legislature has seen fit to prescribe as a condition for the law (chap. 195 of the Act of 1896), being called into existence and put into operative effect, that an application shall be made to the Circuit Court for Wicomico County for a submission of the question of the adoption of the law, to the voters of the county or of a town or election district of the county as the case may be; that the said Court shall order the submission of such question to a vote upon conditions prescribed; and that upon the vote being had a majority of the votes of the locality to be effected, according to the submission, shall appear to be in favor of putting the law into operation. The existence of the law with operative effect is made to depend upon the observance of these prescribed proceedings, the initial step in which is the application to, and the order from, the Circuit Court for the submission of the question, whether the law shall be put into effect, to the voters within the territorial limits to be affected.

The question raised is as to the validity of this legislation. The inquiry as to this is whether it is within the constitutional power of the Legislature to impose upon the judiciary, or invest them with, a function of this character, and whether the judiciary in the attempt to discharge such a function are not acting without constitutional warrant. In making this inquiry we are not dealing with any question of expediency or policy; nor can we have regard to the question whether, in the particular instance, the Legislature has prescribed a course of proceeding best adapted to the accomplishment of a laudable object. The public policy involved in the inquiry is determined and fixed in our Bill of Rights and the Constitution — the fundamental law; and we are limited to the question of constitutional power. As was said in the case of Thomas v. Owens, 4 Md. at page 225, "under our system of government its powers are wisely distributed to different departments; each and all are subordinate to the Constitution, which creates and defines their limits; whatever it commands is the supreme and uncontrollable law of the land." This distribution of the powers of our State government was declared in our original Bill of Rights accompanying the Constitution of 1776 in this language, "That the Legislative, Executive and Judicial powers of government ought to be forever separate and distinct from each other." Art. 6, Bill of Rights, 1776.

There are a number of decisions of this Court having reference to this Article of the Bill of Rights sanctioning its wisdom and enforcing practically the principle involved in the declaration. Only those which may have more immediate reference to the case at bar need be referred to. Among those which arose under the Constitution of 1776 is that of The State v. Chase, 5 Har. John. 297, in which JUDGE BUCHANAN, in the course of his opinion, says: "New judicial duties may often be unnecessarily imposed, and services, not of a judicial nature, may sometimes be required. In the latter case, a Judge is under no legal obligation to perform them" which was to say that the opinion of the Court was that duties, "not of a judicial nature," could not legally and constitutionally be imposed upon the Courts or the Judges.

In the subsequent Constitutions adopted in this State in 1851, 1864 and 1867 the declaration, which has been quoted from the Bill of Rights of 1776, has been incorporated, and emphasized by adding thereto this language of exclusion "and no person exercising the functions of one of the departments shall assume or discharge the duties of any other." Art. 6, Bill of Rights, Const. 1851, Art. 8 in each of the Constitutions of 1864 and 1867. And in each of these subsequent constitutions there is this further declaration "no Judge shall hold any other office, civil or military, or political trust or employment of any kind whatsoever under the Constitution and laws of this State or of the United States or any of them." Art. 30, Bill of Rights, 1851, Art. 33 in each of the Constitutions of 1864 and 1867.

The force of the opinion of the Court speaking through JUDGE BUCHANAN in case of State v. Chase, supra, is enhanced therefore not only by the subsequent more emphatic declarations of the fundamental law in reference to the separation of the powers of government but by the express inhibition against the exercise by a Judge of any other "political trust or employment whatsoever." It would seem thus to be made evident in our fundamental law that the policy and intent of that law is that the Courts and Judges provided for in our system shall, not only, not be required but shall not be permitted to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of the judicial function; and that the exercise of any power or trust or the assumption of any public duty other than such as pertain to the exercise of the judicial function is not only without constitutional warrant but against the constitutional mandate in respect to the powers they are to exercise and the character of duties they are to discharge. In accord with this are recent decisions of this Court. In the case of Robey v. PrinceGeorge's County, 92 Md. 150, a statute which required the Judges of the Circuit Court to approve the accounts of certain county officers before payment of the same by the County Commissioners was held unconstitutional as to this requirement because it imposed on the Judges a non-judicial duty. For the same reason in the case of Beasly v. Ridout, 94 Md. 641, a staute that imposed upon the Judges of the Circuit Court the duty of appointing members of a Board of Visitors for the county jail of Anne Arundel County was pronounced unconstitutional.

Therefore to test the constitutionality of the law here in question in respect to the duty assigned by it to the Circuit Court we have only to inquire whether the duty so assigned to the Court is a judicial duty. It is quite unnecessary to undertake to define here the essential qualities of a judicial act or to prescribe the precise limits to be observed by the legislative branch of the government in assigning duties to the Judiciary. Such attempt could, in its results, only be misleading and confusing. It would not be practicable to lay down a rule for all cases; and it would be inappropriate that the Courts should undertake to do this. It is only necessary in this case to say that counting the names upon a petition, ascertaining whether the names appended thereto are those of voters at the last election for Governor, and ordering an election, is not a judicial function, is a proposition that would seem to be too plain to need argument to enforce it. The order, which by the statute here under consideration, the Court is required to pass, is not to be the result of any judicial inquiry. It is not to be passed in the course, of, or in connection with, any judicial proceeding. It is not to be made as preparatory or preliminary to the bringing of any matter within the judicial cognizance; nor as a means necessary or appropriate to aid, in any way, the efficient and appropriate exercise of the judicial function. In short, there is no view in which the duty to pass the order, required by the statute, presents itself as a judicial act. In assuming the duty to pass the order in question therefore the Court assumes a political trust or duty distinct from its constitutional duty as a Court. Again, if the Court can be required to take one step in proceeding to hold an election for the object indicated in the statute in question; or for such other purpose as the Legislature, within its powers, may see fit to order an election, why may not all the duties in connection with the holding of such election be devolved upon the Courts? Why may they not be required to name time and place of holding such election, appoint the judges and clerks of election, canvass the votes and declare and certify results? The initial step in holding such elections would be no more judicial in its character than all the other necessary proceedings therein. It is not reasonable to impute to the fundamental law, in view of the declarations therein heretofore noticed, an intention to make the Courts subject to have devolved upon them duties so distinct from those pertaining to the exercise of the judicial function; and which could be imposed to such an extent as to seriously interfere with the efficient discharge of the duties of the judicial office. This being so, the provision of the Act of 1896, ch. 195, which requires of the Circuit Court for Wicomico County the duty of ordering elections as therein prescribed is repugnant to the Constitution and Bill of Rights and therefore void. As these elections, by the terms of the Act, must depend upon the orders from the Circuit Court the Act must fail.

No reference has been made to authorities or precedents in other States among which there is more or less conflict as to the questions herein considered. It is sufficient that the views expressed and the conclusious reached seem to be the logical and inevitable consequence of the principles embodied in our organic law; and of our decisions expounding them. As authorities however maintaining similar views in analogous cases we may refer toDuckey v. Hurlbut, 5 Cal. 343, and the case of Supervisorsof Election, 114 Mass. 249.

As a result of our views we must reverse the order of the Circuit Court for Wicomico County from which the appeal in this case was taken.

Order reversed with costs to the appellants.

(Decided April 15th, 1903.)