Warfield v. Vandiver

Boyd, J.,

dissented and delivered the following opinion in which Pearce and Schmucker, JJ. concurred.

The opinion filed in this case by the Chief Judge relieves me of the necessity of discussing what is therein spoken of as “The primary and fundamental question,” not only because I cannot add anything of importance to that very able opinion, but as the members of the Court are unanimous on that branch of the case, it would be useless to do so. As the decision of the majority settles the question concerning which some of 11s differed, as effectually as if the Court had been unanimous as to that, 1 would not do more than note my dissent, did I not deem it proper to state more fully and distinctly *128 the points on which we differed, and my reasons for the conclusion I reached.

What is called the “subordinate” inquiry is thus stated in that opinion: “Does the second section of the franchise amendment bill contain distinct legislative provisions which, to be effective, require the signature of the Governor?” While I may not confine myself strictly to an answer to that inquiry, it is sufficiently comprehensive to indicate the main point upon which we differed. Of course I assume that the Chief Judge, in the above inquiry, intended to include the other ways provided by the Constitution, by which a law may be enacted by the Legislature without the signature of the Governor—passing it over his veto, or by the Governor’s failure to act within the time prescribed—as elsewhere referred to in his opinion. I do not understand any one to deny that if a bill of the General Assembly proposing an amendment to the Constitution contains provisions which can fairly be said to be legislation, such provisions cannot be effective unless submitted to the Governor. All of the authorities on the subject that I am aware of concur in that view, unless, of course, there be some special provision in a constitution that would make it unnecessary, but any controversy about it has usually arisen from the difference of opinions as to whether certain provisions amount to legislation.

The title to this bill in question is “An Act to amend section i of Article i of the Constitution of this State, and to provide for the submission of said amendment to the qualified voters of this State for adoption or rejection.” The latter part was intended to follow the provisions of section I of Art. 14 of the Constitution which says “the bill, or bills, proposing amendment, or amendments, shall be published by order of the Governor * * * once a week for at least three months preceding the next ensuing general election, at which the said 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.” In section 2 of this bill it is provided that the proposed *129 amendment be submitted at the next general election for members of the General Assembly and “at said election the vote on said proposed amendment shall be by ballot, and upon each ballot there shall be written or printed the words ‘For the Constitutional Amendment,’ or‘Against the Constitutional Amendment,’ as the voters shall elect,” (italics are mine). This bill passed the Senate on March 3rd and the House on March 10th, 1904. The other bill before us, known as the “Public Roads Amendment” passed the Senate on March 2nd and the House on March 10th, and in sec. 2 of that Act it was provided that the vote shall be by ballot,” “and upon each ballot shall be printed the words, ‘For Constitutional Amendment,’ and ‘Against Constitutional Amendment,’ as now prescribed by law.” It is impossible for me to understand how it can be said that the language thus used in these two bills is substantially similar. When the members of the Senate on two successive days (March 2 and 3) and the members of the House on the same day (March 10) solemnly enacted that in the one case there shall be written or printed upon each ballot “ ‘For the Constitutional Amendment,’ or ‘Against the Constitutional Amendment,’ as the voters shall elect,” and in the other there shall be printed upon each ballot “For Constitutional Amendment” and “Against Constitutional Amendment as now prescribed by law,” they certainly did not prescribe the same form for submitting these amendments, if plain, unambiguous language is to be given its ordinary meaning. To> say that one of two expressions shall be written or printed on each ballot, is the same thing as saying that both shall be printed on each ballot, would seem to be going very far under any circumstances, but the general laws of this State, relating to elections, show that the distinction is not one of mere words, but is regarded as one of substance and of great importance. Prior to the adoption in this State of what was called “The Australian Ballot,” it was lawful to have on the ballot the names of candidates voted for, and the affirmative or negative vote on a constitutional amendment or other question submitted, either written or printed. A change was made by ch. *130 538 .of Laws of 1890, applicable to Baltimore City and all but nine counties. By sec. 137 of that Act it was provided that “whenever a constitutional amendment or other question .is submitted to the vote-of the people, such question shall be printed upon the ballot after the list of candidates, with the .words ‘For’ or ‘Against’ as each political party may deter;mine.” The cross-mark (X) was then adopted as the means of indicating the voter’s choice. By ch. 236 of Laws of 1892 that law was made applicable to the whole State, and sec. 137 was amended, providing amongst other things that constitutional amendments should be placed in a column to the right of the ticket, with two boxes or squares placed in the margin, in the upper of which “shall be printed the word ‘For’ and in the lower of said squares or boxes the word ‘Against.’ ” The Act of 1896, ch. 202, was then passed, making many changes, which was from time to time .amended, and the general law now in force has various provisions, some of which I will refer to.

Sec. 53 of Art. 33 of Code (1904) requires the Board of Supervisors of Elections of each county and of the city of Baltimore to provide ballots, and amongst other provisions it says “Each ballot shall contain a statement of every constitutional amendment or other question to be submitted to the vote of the people at any election. Ballots other than those printed by the respective boards of supervisors of elections, according to the provisions of this article, shall not be cast or counted'in any election, except as hereinafter provided. Nothing in this article contained shall prevent any voter from writing on his ballot and marking in the proper place the name of any person other then those already printed for whom he may desire to vote for any. office, and such votes shall be counted the same as if the name of such person had been printed upon the ballot and marked by the voter.”

Section 54, applicable to Baltimore City and twelve of the counties, provides that “A constitutional amendment, or any question to be submitted to the popular' vote, shall be printed in a separate column, to follow immediately after the names of *131 candidates,” and sec. 55, applicable to the other counties, that it “shall be printed in the same column with the names of the candidates.” Section 56 requires “For Constitutional Amendment” and “Against Constitutional Amendment” to be placed on the ballot “so that the same shall form a parallelogram or space where the voter may clearly indicate, in the way hereinafter pointed out, whether he shall wish to cast his ballot for or against the constitutional amendment.” Section 66 provides that the voter shall mark, with an indelible pencil, “in the appropriate space, a cross-mark (X) against the answer which he desires to give,” and sec. 71 that “If the voter has marked more names than there are persons to be elected to an office, or if there shall be any mark on the ballot other than the cross-mark in the square opposite to the name of a candidate, or other than the name or names of any candidate written by the voter on the ballot, as provided in sec. 53, his ballot shall not be counted.”

Without referring to other provisions, it will be seen from the above that the election laws of this State require official ballots to be furnished, on which shall be printed the names of candidates and Constitutional Amendments and other questions to be submitted, and that they shall be so prepared as to enable the voter to place a cross-mark in the space or square opposite the names of candidates and opposite the “For” or “Against” the Constitutional Amendment, as he may elect. The only writing permitted is the name or names of some person or persons other than those printed on the ballot, and, with that exception, any mark other than the cross-mark requires the ballot to be rejected, as is expressly stated in the statute, and held by this Court in Duvall v. Miller, 94 Md. 697 , and Coulehan v. White, 95 Md. 703 . This bill does not authorize placing on the ballot “For the Constitutional Amendment” and “Against the Constitutional Amendment,” but only the one or the other, “as the voter shall elect,” and it authorizes that one to be written or printed, while the general law invalidates the whole ballot if either be written on it. As the proposed “Public Roads Amendment” provides that it shall be sub *132 mitted “as now prescribed by law”—that is to say, under the General Laws—and we have seen how utterly at variance those laws are with the form proposed by this bill, in some of the most material provisions, I am unable to agree with the majority that “the two are substantially similar.” One in effect says that one may be written or printed, the other that the two shall be printed and if either is written the ballot shall be void. Can provisions affecting ballots well be more dissimilar in their results? It seems therefore to me that the two houses of the General Assembly not only did not use language that authorizes the construction of the majority, but it must in justice to the members of the General Assembly be assumed that the}'' did not intend this bill to be submitted on the ballot prepared under the general laws, unless they also intended to repeal the general laws, in so far as they conflicted with this bill. That they could not do that without submitting it to the Governor, and having his approval or what the Constitution makes equivalent to that, seems to me to be beyond all possible doubt, and indeed I do not understand the majority of the Court to hold the contrary. For conceding that the two houses of the General Assembly have the power to prescribe the “form” in which a proposed amendment shall be submitted, surely it cannot be said that they can so far change the General Laws as to authorize placing on the ballots provided for by those laws anything directly contrary to their provisions, without either obtaining the approval of the Governor for such change, or passing the bill over his veto. In short, a law can only be repealed by a law, and the two houses of the General Assembly themselves admittedly cannot pass a law, but must submit it to the Governor.

The title to this bill quoted above referred to the Act as one to amend sec. I of Art. i of the Constitution, “and to provide for the submission of the said amendment to the qualified voters of this State for adoption or rejection,” and the title to the other bill before us is only “An Act to amend section thirty-four of Article three of the Constitution of this State.” The latter seems to be the form of title usually *133 adopted in this State, for out of the seven Acts submitting amendments referred to in the majority opinion, only one of them (1900, ch. 185), used the form adopted in the elective franchise bill. Whether there was any special reason for the difference I do not know, but certain it is that this title gave special notice to the members of the General Assembly that the bill not only proposed to amend this section of the Constitution, but to provide for the submission of it to the voters, and when it did provide that “upon each ballot there shall be written or printed the words ‘For the Constitutional Amendment,’ or ‘Against the Constitutional Amendment,’ as the voters shall elect,” upon what authority can this Court strike out the words “written or ? ” If the bill had been submitted to the Governor, and he had approved it, could a ballot have been thrown out beuause a voter wrote “For the Constitutional Amendment” or “Against” it, instead of relying on a cross-mark? Upon what grounds could it have been done? The theory of the appellee is that the two houses of the General Assembly, by virtue of Art. 14 of the Constitution, have the power to propose an amendment and to submit it “in a form to be prescribed by the General Assembly.” As they said the choice of the voter could be zvritten or printed, if the Governor had approved the Act it would have been to that extent are-peal of the provisions of the General Laws, prohibiting wi iting the voter’s choice on the ballot to be provided at the next November election, and I can see no reason why it would then have invalidated a ballot to have thus written the voter’s choice on the question. But in order to do that it required legislation— the action of the Legislature and Governor—and that is precisely what this part of sec. 2 of this bill was apparently intended to be when it was passed.

The majority of the Court eliminate the words “written or,” as indeed they were required to be in order to place the interpretation on the bill given it by them. Of course after that is done, the words “as the voters shall elect” can well be confined to the “For” or “Against,”—but if the words used by the General Assembly—“ written or pi'inted”—are given any *134 consideration, the voter not only had the right to elect which he would vote for, but also which of the two ways he would vote, as the General Assembly had authorized him to do. The form of this bill, especially when^taken in connection with the universal practice of submitting bills proposing amendments to the Governor, which ha.d prevailed since the adoption of the present Constitution, makes it reasonably certain that it was intended to submit this to the Governor when it was introduced, and when it was passed, and, although I agree with the rest of the Court that it was not necessary to do that in order to submit the proposed amendment to the people, still when it was determined not to send the bill to the Governor, it should have been put in such shape as the two houses of the General Assembly were authorized to adopt. The Public Roads Amendment was so drawn as to have it submitted under the General Laws and if such was the intention of the General Assembly, this bill could likewise have been so submitted, but they did not follow that plan. Of course none of us supposed that the use of the article “the”—“For the Constitutional Amendment,”' etc.,—could affect the question, but I am not prepared to agree with the majority when they say “or” means “and” in the connection in which it is used, although I do not deem it necessary to say more on that subject.

It was argued with great force by the attorneys for the appellee that inasmuch as the Constitution provides that a proposed amendment is to be submitted “in a form to be prescribed by the General Assembly,” the same body which can propose amendments can also prescribe the “form.” The majority opinion does not base its conclusions on that ground and it seems to me that it is clear- that this bill cannot be sustained on that theory. For conceding that to be authorized by the Constitution, still if the General Assembly adopts a “form” which cannot be used on the ballots provided for under the General Laws, without repealing the provisions of those laws applicable to those ballots,'there must be legislation to enable that to be done. Under the existing General Laws, as we *135 have seen, there can be no writing on the ballot, excepting such as we have indicated, and if any voter does put any other writing on his ballot it would invalidate the whole ballot. Surely the framers of the Constitution never intended to give the two houses of the General Assembly such power as that. The officers of election appointed under the general laws are sworn to support those laws, and could not count a ballot which had any writing on it not authorized by law. When I speak of repealing the provisions of the general laws, I do not mean to repeal, them absolutely, so that they can no longer be of effect, but only in so far as necessary to' make the changes on the ballot to be used at the election at which such amendment is to be submitted.

If it be conceded that the provision of the Constitution above mentioned would authorize the General Assembly to provide that the amendment be submitted on separate ballots, that would not meet the difficulty, for no machinery has been provided for such submission—neither ballots, ballot-boxes, nor officers of election are provided for at the election to be held in November next, excepting such as the General Laws authorize, and of course the ballots and the ballot-boxes must be such as those laws authorize and the election of officers appointed under those laws must be governed by them and not by a bill in conflict with them which did not become a law. Or if it be conceded that sec. 2 might have been omitted altogether (which would be going quite far) and that the General Laws would then determine the method of submitting the proposed amendment, the simple answer to that is that the General Assembly did not see proper to adopt that plan, but on the contrary did include sec. 2 and did undertake to prescribe a different form in which this amendment should be submitted. And having passed sec. 2 with sec. i, I cannot understand how this Court can reject that, or, as suggested in the majority opinion, strike it out, with any more propriety than it could sec. I. As the Constitution provides that the proposed amendment shall be submitted “in a form to be prescribed by the General Assembly,” and as the General Assembly did *136 attempt to prescribe the form, it does seem to me that this Court is getting on dangerous ground when it says, as it in effect does by the decision in this case, that although the Constitution says that the General Assembly (not the Court) shall prescribe the form, still as it has prescribed one which cannot be carried out under existing laws, this amendment can be submitted in a form different from that the General Assembly prescribed. With great respect for the opinion of those that differ, with me it does seem to me that such course results in not only submitting a proposed amendment without the action of the Governor, but in so far as the method’ of submitting it, without the authority of the General Assembly, or to speak more accurately,- contrary to its intention, plainly expressed,

I cannot be influenced by the argument that the form used in this bill is the same as that generally heretofore adopted in submitting proposed ■ amendments to the Constitution—even since the present election laws have been in force. For, as I have already said, every one of them had the signature of the Governor attached, and thereby removed all questions as to whether the bills proposing those amendments embraced legislation, for, if they did, they were adopted in accordance with the constitutional provisions which must be followed in order to enact laws. They could therefore be construed to authorize the change of the General Laws to the extent necessary to place such forms on the ballot prepared under the General Laws. But beyond that, no question was raised in the Courts as to them, and the question was therefore never passed on. If some voter had written “For” or “Against the Constitutional Amendment” as he elected, on the ballot, and the question had been raised whether that was valid, or whether it invalidated his ballot, the Courts could have been called on to determine it, but as no such question was ever raised, so far as I am aware, it has never been heretofore decided.

The form used in this and other bills seems to have been taken from the provision in the Constitution of 1867, submitting it to the people. It was there said “At the said election *137 the vote shall be by ballot, and upon each ballot there shall be written or printed the words ‘For the Constitution’ or ‘Against the Constitution,’ as the voter may elect.” At that time, and for over twenty years afterwards, there was no official ballot provided, and the voter could cast a ballot upon which there was either written or printed his choice as to candidates and questions submitted. No one can doubt that the framers of the Constitution meant what they said, when they provided that when the Constitution was voted on, there should be written or printed the words “For the Constitution” or “Against the Constitution,’ as the voter may elect,” and when the General Assembly said in this bill “written or printed ’ why should we say they only meant printed ? Surely we are not authorized to reach that conclusion merely because they have not provided the means for using the “wirtten”— especially as it is perfectly manifest that when they passed the bill they expected to submit it to the Governor and thus authorize the choice of the voter to be either written or printed.

It is scarcely necessary to add that the action of the General Assembly is not self-executing. The case of Monroe v. Wells, 83 Md. 505 , would seem to settle that question. There the election of Clerk of the Circuit Court was contested, and decided against Dr. Wells by the House of Delegates, which under spc. 12 of Art. 4 of the Constitution heard the contest, and, having determined it against him, ordered a new election within thirty days, as required by that section. But inasmuch as the new election law had repealed the former one, in such way as to make it “absolutely inoperative for any purposes whatever,” and as the former election officers did not hold over, and the new officers did not go into office until after the time fixed for the special election, there was no machinery by which it could be held, and we said “That the order of the House of Delegates, although in accordance with the Constitution, was not self-executing, but required affirmative legislation in order to be carried out, since the special election could not be held without registration, supervisors, judges or ballot-boxes provided for by a statute in force.” The result *138 was there could be no special election as required by the Constitution, because the machinery for holding it had not been provided. So in this case, as the General Assembly has attempted to submit this amendment in a way that in my opinion could not be done under our existing election laws, and did not provide the machinery for submitting it in the form prescribed by them, I thought it could not be submitted. For these reasons I was unable to agree with the. majority of the. Court as to the effect of sec. 2 of this bill.

I am authorized to say that Judges Pearce and Schmucker concur in this opinion.

(Filed April 5th, 1905.)