# Board of Supervisors of Elections v. Attorney General

> Court of Appeals of Maryland · April 14, 1967 · 246 Md. 417

URL: https://www.frixlaw.com/law-library/cases/9701748

## Case

- **Full name:** BOARD OF SUPERVISORS OF ELECTIONS FOR ANNE ARUNDEL COUNTY, Et Al. v. ATTORNEY GENERAL OF MARYLAND, Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** April 14, 1967
- **Citations:** 246 Md. 417; 229 A.2d 388; 1967 Md. LEXIS 462
- **Precedential status:** Published
- **Opinion:** Dissent by Barnes
- **Judges:** Barnes, Hammond, Hornby, Marbtjry, Oppbnheimek, Barnps, McWjljvtams, Finan, JJ-
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701748

## How later opinions describe it (automated extraction)

- noting that the framers’ report on proposed Article XI-F stated that it provided “an optional system for attaining home rule . . . [and] for the granting of broader powers by home rule to a county than does Article 11-A of the Constitution”
- concluding that election judges hold offices of profit, in part, because they have a statutory term of office
- holding that the deputy sheriff in Dorchester County held a position created by common law
- concluding that power to hold local straw vote requires State authorization

## Opinion text

Barnes, J.
dissenting:
I dissent because I disagree with the answers given to all of the questions considered in the majority opinion, although I do agree with the majority that the lower court and this Court had jurisdiction to consider and determine the questions propounded for the reasons set forth in the majority opinion. I am of the opinion that both Chapters 500 and 501 of the Acts of the General Assembly of Maryland are unconstitutional as being in conflict with the provisions of Article XIV, Section 2 of the Maryland Constitution providing for the taking of the sense of people of Maryland in regard to the calling of a Constitutional Convention at the general election of 1970.
In my opinion the most important question—inherent in *446 Question (i) propounded to us—is whether Chapters 500 and 501 are rendered unconstitutional because they conflict with Article XIV, Section 2 of the Constitution. If these Acts are unconstitutional, obviously the proposed Constitutional Convention cannot be held on September 12, 1967 or indeed, upon the call of the General Assembly, until it has taken the sense of the people in regard to such a call at the General Election of 1970 and a majority of voters at such election shall vote for a convention. In other words, I would have answered Question (i) — “Can the calling of a Constitutional Convention be delayed by a period of two years?” “Yes, and it must be delayed until the conditions required by Article XIV have been fulfilled.” It would then not have been necessary to answer any of the other questions at this time.
Both the lower court and the majority of this Court have given primary consideration to the question of whether or not delegates of the proposed Constitutional Convention would hold no “office under the Constitution or laws of this State” as the most important question presented. Counsel for the original parties also so considered it and the very helpful briefs filed on behalf of those parties gave it careful and exhaustive attention. Counsel for the intervening defendants, however, raised, briefed and argued other questions in regard to the validity of holding the Convention on September 12, 1967.
Although the issue of whether or not delegates are “officers” may well have been of primary importance as a practical political matter—possibly to induce the General Assembly to pass the enabling legislation at the 1967 Session—it is to my mind, rather unimportant so far as the basic constitutional issues are concerned. I say this because even if it had been decided by the majority of the Court that delegates to the Constitutional Convention were such officers, it would not, in my opinion, have prevented the Constitutional Convention from meeting but would only have excluded the present members of the General Assembly and others from being members of the Constitutional Convention, as will be more fully considered when this issue is considered later in this opinion. In view of the fundamental character of the question of the constitutionality of Chapters 500 and 501,1 will consider this issue first.
*447
I.
Unconstitutionality of Chapters 500 cmd 501 of the Acts of 1966 as being in conflict with Article XIV, Section 2 of the Maryland Constitution.
Article XIV of the present Maryland Constitution provides as follows:
“Section 1. Proposal in General Assembly; publication; submission to voters; Governor’s proclamation.
The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate bill, embodying the Article or Section, as the same will stand when amended and passed by three-fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals with the proposed Amendment. The bill or bills proposing amendment or amendments shall be published by order of the Governor, in at least two newspapers, in each County, where so many may be published, and where not more than one may be published, then in that newspaper, and in three newspapers published in the City of Baltimore, once a week for four weeks immediately preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted, in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection. The votes cast for and against said proposed amendment or amendments, severally, shall be returned to the Governor, in the manner prescribed in other cases, and if it shall appear to the Governor that a majority of the voles cast at said election on said amendment or amendments, severally, were cast in favor thereof, the Governor shall, by his proclamation, declare the said amendment or amendments having received said majority of votes, to have been adopted by the people of Maryland as part of the Constitution thereof, and thenceforth said amendment or amendments shall be part of the said Constitution. When two *448 or more amendments shall be submitted in manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately.
Section 2. Constitutional conventions.
It shall be the duty of the General Assembly to provide by Law for taking, at the general election to be held in the year nineteen hundred and seventy, and every twenty years thereafter, the sense of the People in regard to calling a Convention for altering this Constitution; and if a majority of voters at such election or elections shall vote for a Convention, the General Assembly, at its next session, shall provide by Law for the assembling of such convention, and for the election of Delegates thereto. Each County, and Legislative District of the City of Baltimore, shall have in such Convention a number of Delegates equal to its representation in both Houses at the time at which the Convention is called. But any Constitution, or change, or amendment of the existing Constitution, which may be adopted by such Convention, shall be submitted to the voters of this State, and shall have no effect unless the same shall have been adopted by a majority of the voters voting thereon!’ (Emphasis supplied)
Article 1 of the Declaration of Rights provides:
“That all Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole; and they have, at all times, the inalienable right to alter, reform or- abolish their Form of Government in such manner as they may deem expedient.”
Our predecessors have held that the Declaration of Rights and the body of the Constitution are to be construed as one document, Mayor & C. C. of Baltimore v. State, ex rel. Board of Police of the City of Baltimore, 15 Md. 376 (1860), and if the provisions of the body of the Constitution are clear and unambiguous those provisions are to be taken as a limitation upon the general principles declared in the Declaration of Rights. An *449 derson v. Baker, 23 Md. 531, 628 (1865). Construing Article 1 of the Declaration of Rights and Article XIV of the body of the Constitution together, it seems clear to me that a Constitutional Convention can, under Article 1 of the Declaration of Rights be called by the direct action of the people themselves at any time. Although this is difficult of practical accomplishment, it could be done, for example, by a petition of a majority of the electorate that a Constitutional Convention be called. Action in regard to changes in the Constitution or in the call of a Constitutional Convention by the General Assembly—as contrasted by direct action by the people themselves—is strictly limited by Article XIV of the body of the Constitution.
Section 1 of Article XIV makes clear and quite definite the procedure to be followed by the General Assembly in proposing amendments to the Constitution. This procedure requires an affirmative vote of three-fifths of both Houses in favor of the proposed amendment, recorded in their respective Journals, adequate publication of the text of the proposed amendment, and submission to the electorate at the “next ensuing general election,” for adoption or rejection. Section 1 provides that if a “majority of the votes cast at said election on said amendment or amendments”, and if it appears to the Governor that a majority of the votes cast thereon were in favor thereof, the Governor shall declare that the amendment has been adopted, and thereafter, the amendment becomes part of the Constitution. These provisions of Section 1 have been held by our predecessors to be mandatory and not directory, Hillman v. Stockett, 183 Md. 641 , 39 A. 2d 803 (1944).
Section 2 of Article XIV mandatorily imposes the duty on the General Assembly to take “at a general election to be held in the year nineteen hundred and seventy, and every twenty years thereafter, the sense of the People in regard to calling a Convention for altering the Constitution; and if a majority of voters at such election or elections shall vote for a Convention, the General Assembly, at its next session, shall provide by Pant for the assembling of such Convention * * When a proposed new Constitution is framed by the Convention it “shall be submitted tO’ the voters of this State and shall have no effect unless the same shall have been adopted by a majority of voters voting thereon.
*450 The original provision of Article XIV in the Constitution of 1867 was that the sense of the people should be taken at the general election in 1887 and every twenty years thereafter. The date “1887” was changed to “1970” by an amendment adopted by the electorate in 1956. In other words, the people considered the very problem of a legislative taking of the sense of the people to call a Constitutional Convention not quite 21 years ago and decided that no such action by the General Assembly should take place until 1970 at the eaidiest.
This Court has held that the language of the Constitution was carefully chosen by its draftsmen and that the Courts should give great importance to the actual words used in construing the Constitution. Buchholtz v. Hill, 178 Md. 280 , 13 A. 2d 348 (1940).
The lower court was of the opinion that the General Assembly had implied powers to take the sense of the people at times other than as specifically prescribed for in Section 2 of Article XIV. Curiously enough, the majority of this Court apparently adopts this position and quotes from the lower court’s opinion to that effect, notwithstanding the citation in Note 8 of the authorities indicating that such “implied powers” or “inherent power” supposedly exists (quoting from Dodd, “The Revision and Amendment of State Constitutions”, p. 44) “where the Constitution contains no provisions for the calling of a convention, but has no provision expressly confining amendment to a particular method * *
As has been pointed out, in the Constitution of 1867 there is both a provision “expressly confining amendment to a particular method in Section 1 of Article XIV and there is also a provision for the calling of a Constitutional Convention in Section 2 of Article XIV.
It seems manifest that the General Assembly has no “inherent” or “implied” power to do an act directly contrary to the express provisions of the Constitution itself. If the contrary should ever be the law, the death-knell of constitutional government will have been sounded, as one of the principal reasons for a written constitution is to impose limits on the power of government in order to protect the liberty of the individual citizen. If the legislative branch of the State government can, at will, dis *451 regard express limitations in the Constitution, we will have reverted to the British system of absolute parliamentary supremacy from which I had thought we had happily escaped by the success of the War for American Independence, the establishment of State and the Federal Constitutions and the enforcement of limitations in those documents by the Courts. There simply cannot be any inherent or implied powers in the General Assembly contrary to the express provisions of the Constitution itself.
As Judge Offutt, for the Court, stated in Brawner v. Supervisors of Elections, 141 Md. 586, 604 , 119 Atl. 250 (1922) :
“The people adopted the Constitution and the people alone can change it, and while it stands unchanged it is the supreme law binding and controlling this Court as well as every other department of the State’s government and its people, and when changed conditions make it desirable to amend its provisions, the amendment must be made in accordance with and not in violation of its mandates.”
Judge Delaplaine, for the Court, stated in Johnson v. Duke, 180 Md. 434, 442 , 24 A. 2d 304, 308 (1942) :
“It is the sacred duty oí the Courts to preserve inviolate the integrity of the Constitution. Hence it would be a violation of their duty to treat the fundamental law as subject to modification except in the conformance with constitutional methods.”
“The Constitution of the State is a higher authority than any act or law of any officer or body assuming to act under it, for such an officer or body must exercise a delegated authority subservient to the basic law by which the delegation was made. In case of conflict the Constitution must govern, and the act or law in conflict with it must be held to have no legal validity.”
Jameson on Constitutional Conventions (4th ed. 1887), § 574 f, pages 617-618, states the following :
“To determine the degree of strictness with which constitutional provisions authorizing the call of Con *452 ventions must be pursued, in the absence of restrictive words, mandatory in their effect, is more difficult. R If the position hereinbefore taken be correct, that a legislature, under our constitutional system, has power to call a Convention to amend or revise the Constitution, though not expressly authorized, the case presented by the facts supposed would be this: A legislature having a general power to call a Convention, at its discretion, is expressly given power to do the same thing under certain conditions. What inference is warranted as to- the intention of the people in imposing those conditions ? Obviously, that they were not content longer to leave so important a power to the unlimited discretion of the legislature, but desired to restrict it by express declarations of their will as to the time when, the purpose for which, and the number and character of the voters by whom, a Convention might be called. If this inference be just, the conditions laid down for the exercise of the power become, in effect, positive prohibitions upon its exercise in any other way, in conformity to the maxim, good both in civil and the •common law, expressum cessare facit taciturn. In this reasoning, the people of the United States have generally, I might say universally, acquiesced, though occasional attempts have been made, under strong temptation, to induce the legislatures of some of the States to discredit it. Thus, the Illinois Constitution of 1848 ■provided, that whenever two-thirds of all the members elected to each branch of the General Assembly ■should think it necessary to alter or amend the Constitution, they should recommend to the electors at the next election of members of the General Assembly to vote for or against a Convention; and if it should appear that a majority of all the electors of the State voting for representatives had voted for a Convention, the General Assembly, at their next session, should call a Convention. In 1867, members of the dominant party in the State, desiring an early change of the Constitution, and impatient of the delay necessitated by its *453 strict terms, attempted to carry through an act to call a Convention by what was styled ‘a short cut/ that is, upon a vote of the people alone, omitting a reference o£ the subject to the next session of the General Assembly to make the call, should that vote favor it, as required by the Constitution. Happily, the scheme was defeated, and the wiser course taken of obeying to the letter the supreme law of the State.”
Not only is there no implied or inherent power by the General Assembly to take the sense of the people and then call a Constitutional Convention otherwise than as provided in Section 2 of the Constitution as a general principle, but the history of Article XIV in prior Constitutions and of its adoption by the Constitutional Convention which drafted the present Constitution of 1867 shows conclusively to me that there was no intention that the General Assembly should have this power.
The Constitution of 1776 contained no provision for the taking of the sense of the people and for the calling of a Constitutional Convention. Article LIX of that Constitution provided that a change in it could be made by a bill passed by the General Assembly and provided it was passed at least three months before a new election of delegates to the General Assembly and was confirmed by the General Assembly containing those newly elected delegates. Pursuant to this provision the Constitution of 1776 was amended in 1792, 1795, 1798, 1803, 1805, 1807, 1809, 1810, 1812, 1837 and 1846.
In the Constitution of 1851 the forerunner of Section 2 of Article XIV appeared as Article XI of that Constitution and provided, in relevant part, as follows :
“It shall be the duty of the legislature, at its first session immediately succeeding, ascertaining, at the next general election of delegates, the sense of the people of Maryland in regard to the calling of a Convention for altering the Constitution, and in case the majority of votes cast at said election shall be in favor of calling a convention, the legislature shall provide for assembling such Convention * * (Emphasis supplied)
*454 In the Constitution of 1864, Article XI of that Constitution contained three provisions in regard to constitutional changes. Section 1 was almost identical with Section 1 of the present Constitution in regard to amendments to the Constitution.
Section 2, however, was quite significant. It prescribed:
“Whenever two-thirds of the members elected to each branch of the General Assembly shall think it necessary to call a convention to' revise, amend or change this Constitution, they shall recommend to^ the electors to vote at the next election for members of the General Assembly for or against a Convention; and if a majority of all the electors voting at said election shall have voted for a Convention, the General Assembly shall at their next session, provide by law for calling the same.” (Emphasis supplied)
Section 2 then provided that the convention shall consist of as many members as there are members of both houses of the General Assembly and that the Convention shall meet within three months of this election.
Section 3 is quite similar to Section 2 of Article XIV of the present Constitution and provided as follows:
“At the general election to be held in the year one thousand eight hundred and eighty-two and in each twentieth year thereafter, the question, ‘Shall there be a convention to revise, alter or amend the constitution,’ shall be submitted to the electors of the State, and in any case a majority of all the electors voting at such election shall decide in favor of a convention, the general assembly at its next session shall provide by law for the election of delegates and the assembling of such convention, as is provided in the preceding section; but no amendment of this constitution agreed upon by any convention assembled in pursuance of this article shall take effect until the same shall have been submitted to the electors of the State, and adopted by a majority of those voting thereon.” 1 (Emphasis supplied).
*455 In the present Constitution of 1867, the substance of Sections 1 and 3 of Article XI of the Constitution of 1864 was retained, but the provisions of Section 2 in regard to submitting the question of a call for a Constitutional Convention by the General Assembly to the people was entirely eliminated. This can only mean that the draftsmen of the Constitution of 1867 did not intend that the General Assembly should thereafter have the power delegated to it by Section 2 of the 1864 Constitution, but should be confined to the power and duty given it by Section 3 of the 1864 Constitution which, in substance, became Section 2 of Article XIY of the present Constitution.
There was good reason to remove the formerly delegated power to the General Assembly to submit the issue of a call for a Constitutional Convention at any time to the people.
As several of the authorities cited in the majority opinion indicate, the preparation and adoption of a new Constitution is a “peaceful revolution.” Revolutions, whether peaceful or accomplished by force, are upsetting, productive of much litigation, expensive and are only resorted to as a last resort when conditions under the established Constitution or government have become so intolerable that a change must be made. As the Declaration of Independence aptly stated: “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes,” and that experience had shown that “mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed * * Much of the Declaration of Independence is given over to listing the oppressions, usurpa *456 tions, cruelties and outrageous conduct by the British Government which justified the Colonies in separating from the mother country.
When the Constitution of 1867 was adopted, Maryland had had three Constitutions in sixteen years. This was in itself upsetting to the orderly and regular processes of government. By providing for the submission of amendments at any time by the General Assembly and for a taking of the sense of the people for a Constitutional Convention every twenty years and the calling of such a Convention if a majority of votes cast at a general election favored such a call, the people had given all of the power necessary or thought to be expedient for changes in the Constitution. All other power for such changes was reserved to the people themselves and could not be exercised by the General Assembly.
As indicated in the majority opinion, the power to amend the 1867 Constitution has been freely—in the opinion of many, too freely—exercised by the General Assembly, there having been 203 amendments adopted since 1867. This is an average of over two a year since its adoption. This hardly indicates that the will of the people in the face of changed conditions has not been made effective. The remarkable programs of public works and other activities by various State administrations operating under the present Constitution conclusively indicate that the governmental powers granted by the present Constitution are ample to insure the growth and well being of proper State programs. Nothing appears in the record in this case—nor have I heard—any contention that any citizens have been oppressed, any rights denied, any legitimate interests adversely affected or impaired by the present Constitution, as so amended. If any such conditions should arise, undoubtedly they could be cured by amendment. It had been alleged that the present Constitution is not a tidy instrument, that it is too long, too' detailed, contains unclear and obsolete language and the like. But these adverse criticisms—if legitimate—in my opinion, go to matters of form and not to matters of substance. In any event, they are such matters as could well wait until 1970 in order to ascertain whether a majority of the voters at a general election believe that they are sufficiently important to justify the calling of a Constitutional *457 Convention to draft a new Constitution, with its attendant expense, subsequent litigation and generally upsetting effect. No doubt the draftsmen of the 1867 Constitution had these factors in mind, and deliberately removed from the General Assembly and reserved to the people themselves, the power to issue a call for a Constitutional Convention except as provided in Section 2 of Article XIV. The authorities appear to confirm my opinion in this regard, as the maxim, “Bxpressio unius est exclusio alterius” is applicable to the construction of constitutional provisions. See O’Connor v. Armstrong, 299 Pa. 390 , 149 Atl. 655 (1930) ; Harbert v. Harrison County Court, 129 W. Va. 54 , 39 S. E. 2d 177 (1946) ; Yelle v. Bishop, 55 Wash. 2d 286 , 347 P. 2d 1081 (1959) ; Whitney v. Bolin, 85 Ariz. 44 , 330 P. 2d 1003 (1958). See also 16 C.J.S. Constitutional Law, § 21, page 89.
It should be observed that Chapter 501 of the Acts of 1966 purports “to take the sense of the voters of this State,” as appears in the title and the body of the Act, using almost the same language as appears in Section 2 of Article XIV of the Constitution.
II
The calling of a Constitutional Convention is not mandatory because those voting “for” the call did not constitute a majority of those voting at the election.
This issue was presented by Question (h). As I have already indicated that the Constitutional Convention cannot at this time be called at all, it is, of course, not necessary to answer the question. Since the issue was pressed and argued by the intervenors, I think it should be answered.
In my opinion, apart from the unconstitutionality of Chapters 500 and 501 already mentioned, 1 am of the opinion that the General Assembly had no power whatever to take the sense of people at any special election, whether conducted by itself or as a part oí a primary election. The “sense of the voters” means the sense of a majority of the electorate. Our past experience has indicated that the majority of the electorate is present at general elections and not at primary or special elections. Assuming, for the argument, that the General Assembly had inherent or implied power to issue the call, there is most certainly no inherent or implied power to submit the issue at any *458 election other than a general election. Without exception in every prior constitution both amendments and the taking of the sense of the people for a Constitutional Convention have been required to be presented to the electorate at a general election. Laws referred to the people by Referendum pursuant to Article XVI of the present Constitution must be submitted to the electorate at a general election. Why? Obviously because such an important change in the basic law of this State should not be made or brought to pass by a small minority of the electorate. To permit submission of such basic constitutional changes at other than a general election frustrates the very concept of majority rule. The requirement of the necessity of a majority vote of the electorate at a general election is even more important when considering the call of a Constitutional Convention and without exception every Constitution providing for such a call has required that a majority of those voting at the general election vote in favor of the call.
In the course of debate on this question at the Constitutional Convention in 1851, Alexander Randall of Anne Arundel County aptly observed :
“If there should be a majority of the people in favor of such a change, and desirous of calling a Convention, and if such Convention should be called, then the chances were greatly in favor of the adoption of the Constitution framed by it. On the other hand, the chances were very much against the adoption' of a Constitution, the work of a Convention called into existence by a mere majority of the voters who may have cast their votes in favor of such a course over those who cast their votes against it, regardless of the fact that those who voted for the Convention, and it may be united even with those who voted against it, that all who then voted on the subject did not constitute a majority of the voters of the State.” Vol. 2, “Debates of Maryland Constitutional Convention,” 1851, page 378.
I know of no authority for the submission of a call of a Constitutional Convention at any election other than a general election and none is cited in the opinion of the lower Court or in *459 the majority opinion of this Court. The results in this very case graphically show that only a small minority of the electorate who voted in the general election of November 8, 1966, or even of those who voted in the “primary-special” election of September 13, 1966, voted in favor of the call. From Exhibit 1 filed in the lower court by Joshua F. Cockey of B., the individual intervenor, and other data, the following appears, taken from the figures prepared by the Office of the Secretary of State on the September 13, 1966 Maryland Primary Election and on the November 8, 1966 General Election.
In the Primary Election of September 13, 1966, there were cast, statewide, for Governor a total of 609,747 votes, while only 191,960 votes were cast on the Convention Question, so that only approximately 31.5% of the votes cast at that election were cast either for or against the calling of a Constitutional Convention. Of the 191,960 votes on the question 160,280 were for the call and 31,680 were against, so that only approximately 26.3% of those voting at the primary election for Governor voted in favor of the cal! Only 11.5% of the registered voters of Maryland as of August 15, 1966 voted for the call of a Convention.
At the general election of November 8, 1966, 919,760 votes were cast for Governor. Of those voting at that election, 538,360 voted on the Bay Bridge Question presented by referendum, or 58.5% of those voting for Governor in that election. If the proposed call had been presented to the voters at the general election of November 8, 1966, a majority of 459,881 votes would have been required for the approval of the call—a far cry from the 160,280 votes cast for it at the primary election of September 13, 1966. What possible legal justification can there be for purporting to take the “sense of the voters” at a “primary-special” election—known to have a smaller vote than the vote cast at a general election—when only some eight weeks later there would be a general election in the State at which the call with other issues, could have been submitted, and the real sense of the people taken ? I conclude that the sense of the voters has not yet been taken or received by the General Assembly and the attempt to take it at a “primary-special” election was unconstitutional and abortive.
It seems clear that under a provision for the calling of a Con *460 vention if the majority of the electors voting at a general election shall decide in favor of calling a Convention, the proposal must be adopted by a majority of the qualified electors voting at the election and not merely by a majority only of the electors voting on the proposal itself. See Stoliker v. Waite, 359 Mich. 65 , 101 N. W. 2d 299 (1960) ; People v. Alger, 323 Mich. 523 , 35 N. W. 2d 669 (1949).
Assuming arguendo, that Chapters 500 and 501 of the Acts of 1966 were constitutional, in my opinion, the intervenors are correct in their position that in the absence of a majority of those voting in the election of September 13, 1966, it was not mandatory upon the General Assembly to call the Constitutional Convention. The call was submitted to the voters at the primary election of September 13, 1966. This election was in fact all one election and it cannot be fragmented by calling it a special election to be held at the same time as the primary election. There were only one set of voting places, one group of election officials and, most importantly, the proclamation of the election was not that the call was submitted at a special election but was submitted at the primary election at which election the issue should be submitted. The heading of the proclamation was as follows:
“Proclamation of the Governor of Maryland directing publication of bill to submit to- voters at time of primary election, question of calling Convention to frame a new Constitution for Maryland.” (Emphasis supplied)
In the Governor’s order, it was provided:
“I * * * do by my proclamation, order that the aforegoing bill be published * * * not later than twenty days prior to the primary election to be held on September 13, 1966, at which election the proposed question shall be submitted * * * to the qualified voters of the State for adoption or rejection.” (Emphasis supplied)
It is true that in the body of the bill published, Section 1 of 'Chapter 501 is printed which refers to a special election, but it .seems clear to me that the intervenor has established that the *461 proclamation as a whole indicated that the issue of the call was to be submitted at the primary election and that the independent voters—not allowed to vote at a primary election—could well have concluded that they could not vote at that election.
In addition to the Proclamation, the individual intervenor having denied in his answer that the special election was duly held, offered in evidence newspapers published in Baltimore County and Anne Arundel County—two of the largest counties in the State—in which the primary election of September 13, 1966, was advertised as is required by Code (1957), Article 33, Section 12. Nowhere in these two advertisements were the voters notified that there was any special election on the call of the Constitutional Convention. Article 33, Section 12(a) specifically requires that “the Board of Supervisors in each county shall give ten days’ notice of the time and place of all elections in each precinct of such county by advertisements * * * in at least two newspapers of general circulation in said county * * *” (Emphasis supplied)
A specimen ballot for Baltimore County issued by the Board of Supervisors of Elections of Baltimore County headed “Primary Election, September 13, 1966” was also introduced into evidence. There is not a word in this Specimen Ballot that there was also an alleged “Special Election” to consider the call for a Constitutional Convention. On this Specimen Ballot on the right hand side at the extreme top over the list of primary candidates for Sheriff and Judges of the Orphans’ Court is a block under “Question 11, FOR—AGAINST—“Should a Convention be held between September 1, 1967 and September 1, 1968 to draft a New Constitution for Maryland.” Curiously, there is no lever provided for this block on the Specimen Ballot either over “For” or “Against”. Not only would a voter not know that this was a special election for this issue, but the Specimen Ballot does not even indicate that there is a lever provided with which to make the choice.
The doctrine of “substantial compliance” with the mandatory requirements of the election laws in regard to notice resulting from publicity in newspapers, television, etc. as was invoked in Dutton v. Tawes, 225 Md. 484 , 171 A. 2d 688 (1961), has not, in my opinion, been sustained in this case as the Proclamation, *462 the required official newspaper advertisement and the specimen ballot all indicate that the electorate was misled and this showing has not been rebutted. When the electorate has been misled, the doctrine of “substantial compliance” does not apply. As Judge (now Chief Judge) Hammond said, for a majority of the Court, in Dutton v. Tawes, supra:
“All of the cases turn fundamentally on whether the mistake in procedure has caused harm by misleading the electorate or by tending to prevent or frustrate an intelligent and full expression of the intent of the voters.” (Emphasis supplied) ( 225 Md. at 495 , 171 A. 2d at 693 ).
In my opinion the electorate was not only misled but intelligent and full expression of its intent was most certainly prevented and frustrated. The small vote on the issue of the call ■clearly indicates this.
III.
DELEGATES TO THE CONSTITUTIONAL CONVENTION ARE HOLDERS OF AN OFFICE CREATED UNDER THE CONSTITUTION OR LAWS OP THIS STATE.
I reluctantly disagree with the majority on this issue because I think if the Constitutional Convention can constitutionally be held on September 12, 1967, the presence of a number of members of the present General Assembly as members of the Constitutional Convention would make a substantial contribution to the formulation of the new Constitution to be prepared by the ■Constitutional Convention for later submission to the electorate for approval or rejection. Many members of the present General Assembly have had great experience in the governmental problems of this State for a number of years, and their advice and counsel would be most helpful in framing a just, effective and well balanced Constitution for Maryland.
In my opinion, however, the members of the proposed Constitutional Convention will hold an “office” or an office of profit ■ior trust” created by the Constitution or laws of this State.
*463 The applicable provisions of the Maryland Constitution—Article 33, Article 35 of the Declaration of Rights, Article I, Section 6, Article HR Sections 11 and 17—have been adequately set forth in the majority opinion and need not be repeated here. 1 agree with the majority that the “need for and purpose of these provisions manifestly was to protect against conflicts of interest, self-aggrandizement, concentration of power, and the blurring or obliteration of the doctrine of separation of powers in the performance by the agents of the people of their delegated authorities to exercise the executive, legislative and judicial functions of the organized government.” Many of the provisions are designed to remove the temptation of self-aggrandizement from members of the General Assembly, so that an objective, rather than a subjective, consideration governs those members in creating offices and in creating or increasing the compensation of offices.
Although as the majority opinion points out (and I agree) “the general power of a state legislature to make, alter and repeal laws pursuant to the constitution by which the people created the legislature, does not include the right to make or remake the fundamental laws, the constitution,” in the Maryland Constitution, the functions of the General Assembly in regard to amendments to the existing Constitution and in regard to conventions to form a new constitution are, as has already been pointed out, expressly provided for in Article XIV, quoted above in full.
It will be observed that delegates to a Convention to form a new constitution are specifically mentioned, as such, in Section 2 of Article XIV and Section 2 does give the General Assembly the power to provide for such delegates when the conditions set forth in Section 2 are met.
Although this Court has never considered this precise question before, our prior decisions indicate to me that a delegate to a Constitutional Convention holds an “office” and an “office of profit or trust.”
We have held, without exception, that persons who are elected by the people are public officers. In Buchholtz v. Hill, 178 Md. 280 , 13 A. 2d 348 (1940), our predecessors laid stress on the fact that the Clerk to the Board of County Commissioners of *464 Allegany County was elected, in holding that he was a public official. See also Truitt v. Collins, 122 Md. 526 , 89 Atl. 850 (1914) holding a city councilman of Snow Hill to be a public official, and Howard County Metropolitan Comm’n. v. Westphal, 232 Md. 334 , 193 A. 2d 56 (1963) and Hetrich v. County Comm’rs. of Anne Arundel County, 222 Md. 304 , 159 A. 2d 642 (1960) holding a county commissioner to be the holder of a public office. The Attorney General has generally advised that elected executives, legislators and judges, receiving compensation, are holders of public office under the Constitution or laws of Maryland. 2
We and our predecessors have given a broad and comprehensive interpretation to the word “office” in the Maryland Constitution. In 1964 we held that even a notary public was a public officer. Moser v. Board of Cottnty Comm’rs. of Howard County, 235 Md. 279 , 201 A. 2d 365 . Prior to Moser it has been held that a variety of positions were public offices; in Howard County Metropolitan Comm’n. v. Westphal, supra, a member of the Howard County Metropolitan Commission; in Hetrich v. County Commissioners of Anne Arundel County, supra, the Anne Arundel County Business Manager; in State, use of Clark v. Ferling, 220 Md. 109 , 151 A. 2d 137 (1950), the Superintendent of the Maryland State Reformatory for Males; in Pressman v. D’Alesandro, 211 Md. 50 , 125 A. 2d 35 (1956), the Mayor, the City Comptroller and members of the City Council of Baltimore City ; in Nesbitt v. Fallon, 203 Md. 534 , 102 A. 2d *465 284 (1954), a member of a county liquor board; in Buchholtz v. Hill, supra, the cleric to the Board of County Commissioners of Allegany County ; in Kimble v. Bender, 173 Md. 608 , 196 Atl. 409 (1938), a justice of the peace; in County Comm’rs. v. Monnett, 164 Md. 101 , 164 Atl. 155 (1933), the Treasurer of Calvert County; in Day v. Sheriff of Montgomery County, 162 Md. 221 , 159 Atl. 602 (1932), a police justice of Takoma Park ; in Lilly v. Jones, 158 Md. 260 , 148 Atl. 434 (1930), a member of the Port Development Commission of Baltimore City; in Truitt v. Collins, supra, a city councilman of Snow Hill; in Sappington v. Slade, 91 Md. 640 , 48 Atl. 64 (1900), a supervisor of elections; in Robb v. Carter, 65 Md. 321 , 4 Atl. 282 (1886), the City Solicitor of Baltimore City; in Harman v. Harwood, 58 Md. 1 (1882), the Register of Voters for a district in Anne Arundel County; and in Warfield v. County Comm’rs. of Baltimore County, 28 Md. 76 (1868), the Commissioner of Records to restore and re-establish records destroyed by fire in the office of the Circuit Court for Baltimore County. In view of this wealth of prior authority, it is difficult to believe that a delegate to a Maryland Constitution would not also be a “public officer” and the holder of an “office.”
In Moser v. Board of County Comm’rs. of Howard County, supra, we mentioned five criteria which are often present when a position has been held to be a “public office,” although the absence of one or more of these criteria would not be fatal to a holding that a particular position is a public office. As pointed out in the majority opinion, these criteria are:
1. The position was created by law and cast upon the incumbent duties which are continuing in nature and not occasional.
2. The incumbent performs an important duty.
3. The position calls for the exercise of some portion of the sovereign power of the State.
4. The position is for a definite term for which a Commission is issued, a bond required and an oath required.
5. The position is one of dignity and importance.
In my opinion, all five criteria are present for the position of delegate to the Constitutional Convention.
*466 D
The majority indicates that the position is not “under principles we see as controlling, one created by law as the term law is used in the definition.” No authority is cited for this position and I cannot think it is sound. If the position of delegate to this Constitutional Convention was not “created by law,” how was it created? It did not like Minerva spring full grown from the head of Jove. On the contrary, it was created by Chapter 500 of the Acts of 1966 and Chapter 4 of the Acts of 1967. Chapter 500 in its title recites that it was an act to provide for the calling of a Convention under certain circumstances “and to provide for the number and appointment of delegates thereto.” This Act provides that if the Convention is called, each county and each legislative district in Baltimore City shall have in the Convention “the same number of delegates” as Chapter 2 of the Acts of 1965 (Special Session) provides shall be elected at the General Election in 1965. Chapter 4 of the Acts of 1967 makes provision with respect to the election of those delegates provided for in Chapter 500. Both Chapter 500 and Chapter 4 are Acts of the General Assembly, passed pursuant to the present Constitution, presented to the Governor for his consideration and signed by him. I cannot think that this position of delegate is not “created by law.”
I also believe that the position of delegate to the Convention has “duties which are continuing in nature and not occasional.” The elected delegate holds his position for the entire time during which the Convention is in session—a three and possibly a four month period. It continues for this entire period;'it is not sporadic or casual. The duties are not “occasional” so far as the Convention is concerned. Indeed, Chapter 5 of the Acts of 1967, providing compensation and expense money for the delegates indicates that constant attendance is expected as there is a deduction of $15.00 from a delegate’s compensation for each day of unexcused absence from the sessions of the Convention.
The position fortunately is not created frequently as, generally speaking, amendments to constitutions are sufficient to meet new or changed conditions, rather than the calling of a Constitutional Convention to frame a new constitution, but this does not mean that when a Constitutional Convention is called, the ditties of a *467 delegate are occasional or not continuing. I do not see the relevance of the century plant and the sexual functions of the male honey bee mentioned in the majority opinion—as interesting as both are.
2.
It is conceded in the majority opinion that a delegate does “perform an important duty.”
3.
The majority apparently adopts the contention of the Attorney General in this case (which was also adopted by the trial court) that although a delegate to the Constitutional Convention does exercise sovereignty, it is the “sovereignty of the people” he exercises rather than the “sovereignty of the State.” The supposed distinction between “sovereignty of the people” and “sovereignty of the State” eludes me. With respect, I fear the “distinction is one without a difference.” In Maryland, there is no sovereignty but that of the people. All sovereignty emanates from the people. No official or other person may exercise sovereignty which is not sovereignty of the people, be it the exercise by the Governor, judges, members of the General Assembly, notary public or by any one else. There is no distinction, in my opinion, between sovereignty of the State and sovereignty of the people. No authority is. cited in support of this unusual concept in the majority opinion and I think the concept is erroneous. The sovereignty required by this criterion is exercised by the delegates to a marked degree.
It should be pointed out that the phrase “sovereignty of the State” has only been recently used by the Court in cases involving executive officials. See Moser v. Board of County Comm’rs. of Howard County, supra (notary Public) ; Howard County Metropolitan Comm'n. v. Westphal, supra (member of Howard County Metropolitan Commission); Hetrich v. County Comm’rs. of Anne Arundel County, supra (county business manager); Gary v. Board of Trustees of the Employees’ Retirement Sys. of Md., 223 Md. 446 , 165 A. 2d 475 (1960) (deputy State Auditor). An earlier case used the word “sovereignty” in its broad sense as the sovereign power of the people as well as that of the State, wffien considering elective officials. See Truitt v. Collins, supra (town councilmen). In Truitt , Judge Urner, for the *468 Court, adopted the test as enunciated by the Supreme Judicial Court of Massachusetts in Attorney-General v. Tillinghast, 203 Mass. 539 , 89 N. E. 1058 (1909), as follows:
“It may be stated as a general rule, fairly deducible from the cases discussing the question, that a position is a public office when it is created by law, with duties cast upon the incumbent which involve the exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which also are continuing in their nature, and not occasional or intermittent.” ( 122 Md. at 531 , 89 Atl. at 851-52 ).
If it could be assumed, arguendo, that there was a distinction between “sovereignty of the people” and “sovereignty of the State,” the latter being possibly that portion of the sovereignty of the people which an officer holds in order to perform a function of government for the people, nevertheless, a delegate to the Constitutional Convention exercises such sovereignty.
The Constitutional Convention in preparing a proposed Constitution exercises legislative power of the highest order. The delegates formulate the State’s highest organic law and the draft of the proposed Constitution may only be adopted in tota by the electorate. Both the formulation—the legislative act—and the adoption by the people must occur before a new Constitution can be effective. Both are necessary to establish the State’s highest organic law. But the Constitutional Convention exercises “State sovereignty” in connection with its primary function, i.e., (1) it must employ adequate personnel to enable it to function, and (2) it must authorize the expenditure of the revenues of the State to carry on its functions and pay personnel employed by it. This means that the Constitutional Convention necessarily must contract in the name of the State for the services and supplies necessary to carry out its functions. Indeed, the State administration has already budgeted $1,000,000 for the initial operation of the Constitutional Convention. There will most likely be expenditures in excess of the budgeted amount which the State Treasury must pay. This is most certainly the exercise by the Convention of “State sovereignty.” Moreover, the Con *469 stitutional Convention is to adopt a schedule of legislation to be attached to the proposed draft of the new Constitution which if the proposed Constitution is adopted, will not be a part of the Constitution “but shall have the effect of a public general law and may thereafter be amended or repealed by law.” See Section 16 of the proposed Convention Enabling Act, Report of the Constitutional Convention Commission on Constitutional Convention Enabling Act, January 16, 1967, page 32. This recommendation, with amendments, was adopted in Chapter 4 of the Acts of 1967. See Section 17 of that Act. Indeed Section 17, as amended, directs the Convention to provide for the inclusion of “implementing legislation * * * (as necessary or desirous) in the Statute books of this State, including the Annotated Code of Maryland.” It is difficult to believe that this power to adopt statutes and codify them, is not the exercise of the “sovereignty of the State.” It is clear to me that it is.
4.
The position most certainly has a definite term and it was contemplated by the proposed legislation in 1967 and enacted into law by Chapter 4 of the Acts of 1967, that a delegate take an oath. No bond is required as the delegate does not handle collections for the public. For a similar reason, bond is not required for members of the General Assembly.
5.
It is conceded in the majority opinion that the position is one of dignity and importance—as it obviously is.
A Constitutional Convention may be viewed as a part of the whole system referred to as “government.” It is the highest branch of that system which works out the will of the people in relation to delegated and restricted political powder. Jameson in his treatise Constitutional Conventions (4th Ed. 1887) §324 refers to a Constitutional Convention as “a part of Ihe apparatus by which a sovereign society does its work as a political organism.” He further states:
“It [the constitutional convention] is the sovereign, as organized for the purpose of renewing or repairing the governmental machinery. That same sovereign, as *470 organized for the purpose of making laws, is a legislature; as organized for the purpose of applying or carrying into effect the laws, it is the judiciary or the executive. These successive forms into which the sovereign resolves itself, are but systems of organization having relation more or less directly to the government of the society. Together, they constitute the government * * *. The government of the Commonwealth is a totality of those instruments through whose ministry its political organization is begun and continued. It is that totality which governs, * * *.” (Emphasis supplied) .
In addition, it is apparent that the Constitutional Convention Commission understood that the delegates were officers. In the proposed Enabling Act appearing in the Report of the Commission dated January 16, 1967, the position is referred to as an “office.” See for example, Section 7 of the proposed Act (Report, p. 26), which provides, in part, as follows:
“If a vacancy occurs in the office of delegate to the Convention prior to the first meeting of the Convention, the vacancy shall be filled by the Governor, * * (Emphasis supplied.)
See also p. 36 of the Report.
It was recommended that delegates be required to take the oath or affirmation prescribed by Section 6 of Article I of the present Maryland Constitution (see Report, p. 26, Section 8 of the proposed Act.) Section 7 of Chapter 4 of the Acts of 1967 provides:
“If a vacancy exists in the office of delegate prior to the first meeting of the Convention in plenary session on September 12, 1967, the vacancy shall be filled by the Governor * * (Emphasis supplied).
Section 8 of Chapter 4 provides for the taking of an oath or affirmation in the form set out in Section 8. Chapter 5 of the Acts of 1967 provides for the compensation of the delegates. In short, both the Commission and the General Assembly refer to *471 the “office of a delegate” and treat it as. an office, providing for an oath and for compensation from the State Treasury. They thought a delegate held an office under the Constitution or laws of the State of Maryland, and so do I.
The trial court and the majority of this Court were impressed with the practice in the 1851, 1864 and 1867 Conventions in permitting members of the General Assembly to be delegates to those Constitutional Conventions notwithstanding constitutional limitations on the holding of any other office of profit, and concluded from this practice that delegates to those Constitutional Conventions were not considered to be “offices of profit” under the prior Constitution or laws. I do not think this conclusion follows. The validity of the holding of the position of delegate by members of the General Assembly in the prior Conventions was never challenged judicially prior to the time the Convention met, as is the situation in the present case. Assuming that the members of the General Assembly were improperly elected and qualified as delegates, they were nevertheless de facto officers of the Convention. Cf. Kimble v. Bender, supra. After the adoption by the people of the proposed constitution, no one could challenge the action of the Convention because of the illegal presence as delegates of the relatively few members of the General Assembly.
After the Constitutional Convention convenes, it is the judge of the qualification of its members and when it decides (as the 1864 Constitutional Convention did decide) that its members are validly qualified, there can be no successful challenge to that action, regardless of what might have been decided prior to the convening of the Convention. See also Anderson v. Baker, supra. The present case is the first one in which a judicial determination has been sought prior to the convening of the Constitutional Convention, so that it is an entirely new issue unaffected by prior examples of possible illegality or disregard of constitutional provisions.
Then too, in my opinion, the words of the Constitution are not ambiguous, so that no prior “construction” of those words by prior conventions may be considered to cause us to depart from this plain meaning. See Moser v. Board of County Comm’rs. of Howard County, supra, holding that a notary pub- *472 lie was an officer within the meaning of Article 35 of the Declaration of Rights notwithstanding the long established practice to the contrary. Indeed, our decision in Maser precipitated a constitutional amendment to exclude notaries public from the definition of “office of profit.”
As I read the cases from jurisdictions other than Maryland, it appears that the weight of authority supports a holding that delegates to a Constitutional Convention are officers and that the existing constitutional prohibitions against dual office-holding apply.
In Fyfe v. Masher, 149 Mich. 349 , 112 N. W. 725 (1907) the Constitution of Michigan provided that: “No person elected a member of the Legislature shall receive any civil appointment within this state, * * A senator of the Michigan Legislature attempted to file for election to the Constitutional Convention of that state. The county clerk refused place his name on the ballot on the ground that he was not elegible under the prohibition against dual office-holding. The Supreme Court of Michigan held that the position of delegate to the Constitutional Convention was a state office and that the senator was not eligible to serve as a delegate. The Supreme Court of Michigan stated:
“It is conceded that delegates to the constitutional convention are state officers. * * * We are all of the opinion that delegates to the constitutional convention come within the term 'civil appointment’ as used in this provision of the Constitution, that they receive their appointment from state authority, and therefore that members of the Legislature which enacted the law and thus provided for the offices, fixing compensation, etc., are ineligible as delegates. They are both within the spirit and letter of the law. The writ is denied.”
In State v. Gessner, 129 Ohio St. 290 , 195 N. E. 63 (1935), the Supreme Court of Ohio held that a member of a County Charter Commission convened to draft a new constitution for a county (analogous to a state constitutional convention) was the holder of a “public office of trust” within the meaning of the Ohio Constitution and hence a judge elected to serve on the Commission was precluded by the provisions of the Ohio Con *473 stitution from serving as such a commissioner. The Supreme Court of Ohio said in its opinion:
“While there is disagreement, the weight of authority and the more logical reasoning support the proposition that a state constitutional convention, in the discharge of its powers, duties and obligations, performs an important act of sovereignty and exercises legislative functions of a high order.” ( 129 Ohio St. at 293 , 195 N. E. at 64 ).
In Kederick v. Heintzleman, 132 F. Supp. 582 (1955, D. Alaska), the Organic Act of Alaska ( 37 Stat. 512 ) provided:
“That no member of the legislature shall hold or be appointed to any office which has been created, or the salary or emoluments of which have been increased, while he was a member, during the term for which he was elected and for one year after the expiration of such term; * *
The question arose as to whether members of the Alaska Legislature were entitled to serve as delegates to the territorial Constitutional Convention provided for by the Act of the Legislature. In holding that they were ineligible, the District Court stated:
“The purpose of the prohibition is to eliminate, as far as possible any hope in the mind of the legislator, that the office so created may be filled by himself, and to insure to the people independent judgment of their representatives. It is necessary to good government that the legislators exercise their judgment free from selfish motives and, to this end, these prohibitions have been placed in constitutions and on statute books. If the territorial legislature can create an office and rely on the possibility of Congress lifting the prohibition between the time of the election and the time to hold the office, then it cannot be said that the possibility of bias has been limited to the greatest possible extent.” ( 132 F. Supp. at 585 ).
*474 Jameson, in his treatise, Constitutional Conventions, supra, states in § 324:
“In my judgment, there can be but little doubt, that a member of a Convention is, in the enlarged and proper acceptation of the term, an ‘officer’ of the State.”
The majority relies principally on State v. Doyle, 138 La. 350 , 70 So. 322 (1915) ; Baker v. Moorhead, 103 Neb. 811 , 174 N. W. 430 (1919) ; and Frantz v. Autry, 18 Okla. 561 , 91 Pac. 193 (1907). In my opinion, this reliance is misplaced.
In Doyle , convicted cattle thieves appealed their conviction on the ground that the jury lists drawn by the jury commissioner were void because there was a vacancy in the commission. This vacancy was alleged to have been caused by the election to the Louisiana Constitutional Convention of 1913 of one of the jury commissioners who had participated in the drawing of the jury list. It was argued that the office of jury commissioner was vacated by this election to and acceptance of another office. The Supreme Court of Louisiana in sustaining the convictions quoted —apparently with approval from the opinion of the trial court —as follows :
“* * *[A] member of a constitutional convention is in no proper sense an officer, that such a position is fleeting and casual, and the member does not exercise his functions continuously and as part of the regular and permanent administration of the government.” ( 138 La. at 351 , 70 So. at 323 ).
It has already been pointed out, that the first test in the Moser case is satisfied, i.e., that the incumbent had duties which are continuing in nature and which are not occasional. See also Mechem, Public Offices and Officers, § 8 (1890) ; State, ex rel. Clark v. Stanley, 66 N. C. 59, 63-64 , 8 Am. Rep. 488 (1872). The Louisiana Court has incorrectly analyzed the function of a constitutional convention and its decision, in my opinion, is of little weight in support of the proposition that a member of a constitutional convention is not an officer.
Baker v. Moorhead, supra, recognizes that delegates to the *475 Nebraska Constitutional Convention are officers. The point in that case was whether they were officers “who have fixed terms of office, so that they would have to be elected at a general election under the provisions of the Nebraska Constitution. In holding that the delegates were not officers having a fixed term of office, the Supreme Court of Nebraska stated:
“Section 13, read in connection with section 14, which has to do with terms of office, would indicate that those provisions have only to do with officers elected who have fixed terms of office, and should be elected at an election called with reference to the time of the beginning of their terms. The members of the convention have no fixed term of office, and by the Constitution itself the convention may be called at any time within three months after the election of its members.” (Emphasis supplied). ( 103 Neb. at 816 , 174 N. W. at 432 ).
Frantz v. Autry, supra, involved an injunction suit to prevent the election of county officials in two new counties created in the proposed Constitution of Oklahoma by the Constitutional Convention at the same election which provided for the adoption or rejection of the proposed new constitution. There was nothing in the suit involving the question of whether the delegates to the Constitutional Convention were officers and, indeed, Oklahoma did not have an existing constitution at the time of filing suit. It was then a territory of the United States, authorized by an Act of Congress to proceed to form a constitution and be admitted as a State of the Union. It was held that the equity court erroneously enjoined the election as such questions were not of judicial cognizance. This case is not in point on the issue of whether delegates to the Convention were “officers.”
1 consider that the delegates to the Constitutional Convention are the holders of an office created under the laws of the Constitution or laws of Maryland and that the prohibitions of the Maryland Constitution against dual office-holding are applicable.
As I have already indicated, the conclusion that the delegates are officers, although of importance as a practical political matter in possibly inducing the General Assembly to vote for the en *476 abling legislation, does not prevent, in itself, the holding of a Constitutional Convention.
Although the Maryland Constitution provides in Article XVI, Section 2 “that no measure creating or abolishing any office, or changing the salary, term or duty of any officer * * * shall be enacted as an emergency law,” and Chapter 500 of the Acts of 1966 was passed as an emergency law, we have said that such an attempt to pass an emergency law does not render the statute invalid, but merely makes it effective on the following June 1, as provided in Article XVI. As we stated, by way of dictum in Allied American Co. v. Commissioner of Motor Vehicles, 219 Md. 607, 626 , 150 A. 2d 421 (1959) :
“If the Legislature provides that an Act, which under Art. 16 may not take effect until June 1, is to take effect sooner, the Act stands but will not take effect until June 1. Woelfel v. State, 177 Md. 494, 504-05 , 9 A. 2d 826 ; 1 Op. Att’y. Gen. 286, 288.”
In my opinion, this is a correct view of the applicable law so-that Chapter 500 would not be invalid and void because it was passed as an emergency measure and purported to be effective upon the date of its passage on May 6, 1966, rather than June 1, 1966.
Even assuming, arguendo, that the General Assembly could validly take the sense of the people in regard to calling a- Constitutional Convention prior to the General Election of 1970, that Chapters 500 and 501 of the Acts of 1966 are valid and that there was a proper affirmative vote at a valid special election to approve the calling of such a Convention, it seems clear to me that it was not mandatory upon the General Assembly at the time we filed the per curiam order of a majority of the Court on March 7, 1967, to call the Constitutional Convention on September 12, 1967. This issue is implicit in Question (i), above discussed. The question propounded to the electorate was not whether the General Assembly should call a Constitutional Convention on September 12, 1967, but was “whether there will be called a Convention not earlier than 1 September, 1967, and not later than 1 September, 1968.” This was the only question submitted to the electorate on the calling of the Constitutional *477 Convention and it seems clear to me that the General Assembly could have repealed Chapter 500 of the Acts of 1966 and changed the date for the meeing of the Convention at any time between September 1, 1967 and September 1, 1968. This most certainly is within the exact language of the question submitted to the electorate. Neither the lo'wer court nor the majority of the Court gives any reason and cites no authority which would remove the right of the General Assembly to call the Convention at any time between September 1, 1967 and September 1, 1968. I conclude that there is no valid reason and that there is no authority holding that the General Assembly might not have done this. I would have so answered Question (i).
I do not think under the circumstances that it is necessary or desirable to consider other questions propounded to us. My answers to the other questions are, I think, obvious and it would unnecessarily prolong this dissenting opinion to develop them in detail.
. The report of the Committee on Future Amendments to the *455 Conslitulion was submitted to the 1864 Convention on May 27, 1864. See “Proceedings of the Maryland Constitutional Convention,” p. 119. There were attempts to amend the proposed draft by changing the required legislative majority in Section 2 from “two-thirds” to “three-fifths”; an amendment of Section 2 to provide that the legislature should not impose restrictions as to the qualifications of delegates to the Convention; a change in Section 3 from 1882 to 1872 and a change in the 20-year requirement in Section 3 to a 10-year requirement. All of these proposed amendments were rejected by the Convention. Id. pgs. 375 to 377. The report of the Committee was adopted as originally submitted by a substantial affirmative vote. Id. p. 388.
. Clerks of Circuit Courts, 7 Ops. Att’y. Gen. 460 (1922); County Commissioners, 6 Ops. Att’y. Gen. 226 (1921), 13 Ops. Att’y. Gen. 214 (1928), 48 Ops. Att’y. Gen. 323 (1963); Congressman, 2 Ops. Att’y. Gen. 352, 355 (1917); City Councilman—with salary—2 Ops. Att’y. Gen. 352, 354 (1917), 11 Ops. Att’y. Gen. 100 (1926), 20 Ops. Att’y. Gen. 586 (1935), 48 Ops. Att’y. Gen. 323, 332, 333 (1963); Mayors, 6 Ops. Att’y. Gen. 226, 232 (1921), 7 Ops. Att’y. Gen. 476 (1922), 23 Ops. Att’y. Gen. 386 (1938) ; judges of the Orphans’ Court, 15 Ops. Att’y. Gen. 237 (1930), 48 Ops. Att’y. Gen. 323, 326 (1933) ; delegates to State Conventions to consider repeal of 18th Amendment to U. S. Constitution, 18 Ops. Att’y. Gen. 408 (1933); members of the General Assembly, 3 Ops. Att’y. Gen. 271 (1918), 6 Ops. Att’y. Gen. 231, 232 (1921), 8 Ops. Att’y. Gen. 438 (1923), 12 Ops. Att’y. Gen. 201 (1927).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701748. Public record. Not legal advice.