*1 BOARD OF OF FOR SUPERVISORS ELECTIONS COUNTY, ANNE ARUNDEL ATTORNEY v. al. et MARYLAND, OF GENERAL et al. 10, September Term, 1967, (Adv.).] [No. *4 per 7, 1967.
Decided curiam on March Opinion 14, 1967. April filed
The cause argued before J.,C. Hammond, Hornby, McWjljvtams Marbtjry, Oppbnheimek, Barnps, Finan, JJ- Blum,
David Cahill, M. William Cop- W. Jr. and Mark D. lin, with whom Weinberg were & Green and John A. Blon- brief, dell on the for Board of Supervisors of for Anne Elections Arundel County, part appellants, and C. Maurice Weide- meyer B., F. Cockey other appellant. Joshua Burch,
Francis B. General, Attorney Wilner, Alan M. As General, sistant Attorney Robert F. At Sweeney, Deputy General, torney al., General of Attorney et Maryland, part of appellees, Sherbow, and Joseph for Maryland Bar As sociation, other appellee.
Hammond, C. J., delivered the majority opinion the Court. J., dissents. Dissenting opinion page Barnes, infra. of 1965 Governor Tawes appointed Commission to. June
study the necessity for revision of the Constitution of Maryland,
422 be held to prepare convention should
to determine whether for the procedures the the and to suggest revision that concluded The Commission of such convention. holding delegates by be prepared should new constitution completely for of to the the voters to a and submitted convention adoption. Leg- of the Commission to the recommendations
Pursuant a special of for 1966 provided Ch. 501 of islature Laws as the election primary held the same time to be at election a convention the voters on whether take the sense 1966 to 1, 1967, and convened, September not earlier than should be 1968, 1, frame a new Constitution. to September later than ma- if a that provided of the Laws of 1966 was By Ch. 500 voted a conven- special at the election voting of those jority 12, 1967, such place September tion assemble on it should law. thereafter be might prescribed and for such time as of the and each County also each provided 500 Chapter num- same districts of Baltimore should have the legislative City 2 of the ber convention as Ch. delegates Laws 11, 1965, for election Special prescribed October Session from at the General 1966 Delegates the House of Election district. legislative such county Sep- election Ch. 501 was held on special proposed The 1966, with primary election. concurrently tember 160,280 31,680 vote a constitutional convention and was votes more than Although the number favorable against. of. election, cast in the special total votes total of the votes cast in the minority primary number was election. General consideration of began
When the for the legislation qualifications provide election, convention, of their their the manner compensation convention, matters relating of and other duration immediately it was confronted with most of problems, almost which stemmed from prohibitions existing constitu- tion of more than or holding one office of against profit trust the constitution legal under laws These State. questions, (1) validity which included of Chs. 500 Laws of both of which enacted emergency were measures, even of Art. XVI of the Constitution though pro- § *6 vides an an emer- creating that no law office shall be enacted as law, and gency Legisla- of members of the (2) eligibility ture and to con- public other officers serve as to the vention, caused and grave concern to- the General to Assembly State, of Secretary his case for their on the bearing per- of formance bis functions in relation to the elective process. dilemma, To obtain a solution to the enacted Legislature Ch. 1 of the of which Attorney 1967 authorized the Gen Laws eral, on behalf of the General of Assembly and Secretary State, to institute a judgment under Art. declaratory proceeding 31A of the Code in the Circuit Court Anne Arundel County against the Board of of Arundel Supervisors of Anne Elections and County such other defendants as General the Attorney deemed appropriate to a obtain declaration of the correct an swer to nine questions, lettered (a) (several ques (i) tions having various subdivisions). was: Question (a) “Would a delegate the constitutional convention be the holder of an office within the of Articles meaning 33 and 35 the Declara tion of Rights and 6-of Article I and 11 and Section Sections of Article III of the Constitution of Maryland?” Questions (b) through all were on (g) based premise a delegate the constitutional convention would be an officer if and it were held that was, is, he was these questions, agreed, would not have be answered. Question light was: “In (h) of the fact that voting those ‘for’ the of a calling convention did not election, constitute those in the voting is of a at calling convention this time mandatory?” Question (i) was: “Can the calling of convention be delayed aby pe riod of two years ?” questions
1. The in full were: “(a) delegate Would a to the constitutional convention be the holder meaning of an office within the of Articles 33 Rights and 35 of the Declaration of Article Section I and 11 and 17 of Sections Article III of the Constitution Maryland? “(b) delegate If a to the constitutional convention would office, be the holder of such an the office was created Chapter Assembly 500 of the Acts 1966? General “(c) delegate If to the constitutional convention would 17, 1967, suit was filed Gen- February On Attorney eral in Circuit Court for Anne Arundel on behalf County holder of such an office and the office created be the Chapter Assembly Acts of General 500 of the notwithstanding effective the fact that is that Act valid and emergency passed act? it was Assembly “(d) Chapter If 500 of the Acts of the General Maryland entirety null void as an of 1966 is because emergency act, Chapter passed 501 of the Acts as an thereby invalid, Assembly null of 1966 rendered General void? Chapter “(e) If 500 of the Acts of the General entirety, can the As- of 1966 is null and void its General sembly 1967 session call constitutional convention its to take the sense of without another referendum such convention? *7 Chapter (1) if 501 of the of the General Assem- Acts unconstitutional, bly null void? is of 1966 was and Chapter (2) if of of the Assem- the Acts General bly and effective? of and is valid 1966 was “(f) delegate convention would If a to the constitutional by the office created the of such an office and was be holder 1966, Assembly Chapter of the of 500 of the Acts General meaning person holding of may the a another office within Maryland Rights of and Constitution the Declaration of delegate conven- of to constitutional also hold office
tion? person not, fact, (1) com- does receive if such a pensation delegate or the convention whether a to as provided compensation paid or for as to some or not be convention; delegates all of the to the compensation person (2) but if does not receive such expenses incurred in of reimbursement actual receives convention; serving delegate as to the constitutional a compensation but (3) person does not receive if such expense per for service allowance his diem receives a delegate without constitutional convention as a required such ex- being for the amount of to account pense allowance? delegate would “(g) convention a to the constitutional If was not created of office and the office the holder such an be Assembly Chapter of of the 500 of the Acts General 1966, created an act of General be but will session, may person Maryland hold- its 1967 a enacted at meaning Declaration ing of the another office within indi- against Secretary and the State Legislature Arun- Anne constituting Supervisors Elections viduals as 21, plain- intervene a petition February On del Cottnty. Association, Inc. Bar Maryland tiff was filed entity) interested 1 as an in Ch. designated had been (which taxpayer an February 23 individual and on granted, as a defendant. allowed to intervene asked, inter the Bar Association General and Attorney
The holder of alia, is not the delegate that a a declaration (1) office, at the election persons voting majority a (2) 13, 1966, a calling in favor of voted September not Convention, assembling may of a convention and (3) answered and on the delayed. Supervisors, contrary, be The of an delegate court to declare a to be the holder prayed office, that of those although voting special convention, calling election favored its either on September 1, 1, 1968, 12, 1967, 1967, September or between and September is not and that the of a can be mandatory, calling convention for two delayed years. defendant is the holder intervening urged delegate office,
of an convention on September the matter mandatory, being in the sole discretion Maryland Rights and Constitution also hold the office delegate to the constitutional convention? (t) person not, fact, compen- if such does receive delegate sation to the convention as whether or not paid compensation provided or some all convention; person compensation (3) does not if such receive but expenses receives reimbursement of actual incurred *8 delegate convention; serving as a the constitutional (3) person compensation if does not receive but such per expense diem for his service receives a allowance delegate as a to the constitutional convention without being required ex- account amount of such pense allowance? calling “(h) light voting of the fact that those ‘for’ the voting constitute of those of a convention did not a election, calling this time of a convention at mandatory? delayed by “(i) calling convention of the be Can period years?” of two of the General that no election was Assembly, special properly notice, held lack of adequate particularly independent election, voters and others not interested primary since the General Assembly alone has the of de- responsibility whether to call a convention termining such a convention be for two may delayed years.2
The court J.) declared on 28 that (Evans, February (1) delegate to the not of an convention is the holder office with- in the meaning Articles and 35 of Declaration of Rights or the I meaning of of Article 11 and 17 of Article § §§ III of the Constitution of notice of the Maryland; (2) adequate election special given; was (3) majority vot- persons 13, 1966, ing special election September voted favor convention; of a constitutional of a (4) assembling consti- tutional convention not may delayed; be reason (5) by the adjudication and declaration delegate would officer, issues became moot. remaining 1 of
Chapter 1967 conferred jurisdiction on the Laws Court of to review the Appeals judgment and determination of the Circuit Court for Anne Arundel County provided that “the decision of the Court of Appeals Maryland upon such review shall have the same force and effect as other * * final decision of the Court An appeal was taken from case, Judge order and we advanced the argu- Evans’ hearing ment on March 6. On March 7 we adjudications affirmed the order, declarations below curiam per all the but judges Judge Barnes concurring. We now set out reasons for our affirmance.
No question raised below or on as to the appeal juris- diction of the Circuit Court and the Court of to hear Appeals and decide the matter. think We that in appropriate say our 1, 2, the Circuit had opinion jurisdiction Court under §§ Code, 5 and 31A 6 Art. the Uniform Declaratory Judgments Act. Under 1 courts have “to power rights, declare § status and legal other relations” whether or not further relief plaintiffs disagreed 2. The and the defendants further to the questions through (b) (g) correct answers to if it be declared delegate is the holder of an office under the Constitution or laws Maryland.
427 Court in the Circuit filed In the case claimed. or could be is al- legally, were and the parties claims conflicting were there autho- 31A 6 of Art. hostile. not personally, Section though an actual which there cases in in all relief granting rizes court or which contending parties controversy between between are present claims antagonistic is satisfied “that litiga- and inevitable imminent indicate involved which parties * * * status, relation, right, tion, asserts a legal that a party or that there interest and has a or he concrete which privilege status, relation, right, of such asserted or denial challenge is a or asserts con- also has or who party an adverse privilege by a de- therein, also that is satisfied interest court crete the un- to' terminate or decree shall serve judgment claratory or rise to certainty controversy giving proceedings.” re- declaratory in which the Circuit Court proceeding granted Tawes, v. met of Art. 31A. Md. Committee lief the tests Md. 412. Court of its. gave Appeals of the Laws of 1967
Chapter ordinary jurisdiction judgment to review upon appeal Anne Arundel County. determination the Circuit Court for and' jurisdiction only The Court of exercises Appeals appellate Court, cannot confer on the Legislature original jurisdiction 335, 336, us,Wag v. 76 Md. nor it to decide Sevinskey require Shields, a moot or an abstract v. question proposition, State 301, 305, Legislature 49 Md. but the confer the may right this Court to hear cases appeals special provided appellate v. judicial functions and are left untrammeled. powers State ; Prout Co., Railway Northern Central 18 Md. v. case, 2 Gill 150. In the as in Cen Berry, Northern present tral, the review authorized Ch. 1 was the appellate customary live, review of concrete the tran questions fairly presented by all of which were involved the decision of script, necessarily court, the trial and therefore was permissible.
We to the merits. Article 33 of the Declaration of pass Rights office, states that no shall or judge any hold other “civil mili- trust, kind, whatsoever, or or tary, political employment * * under the Constitution or this *.” Article Laws State hold, 35 follows that “no at the same provide person shall Constitution, time, more than one office of created profit, * * *.” 6 of Art. I of the Con- Section Laws of *10 elected, stitution recites that or “every person appointed, any trust, Constitution, under this or under the office of or profit Laws, thereto,” pursuant made oath of shall take prescribed officeunder he which swears he will not receive the profits “of any other office” the term in during of his the office acting for which he is 11 Art. in- qualifying. Ill declares Section eligible as a senator or a all delegate ministers and all other trust, persons civil office of under this “any profit, or holding justices State” the 17 of Art. Ill (except peace). Section prohibits a member Assembly of the General the term during elected, office, for which he was from which serving “any created, shall have or been the or of which shall salary, profits increased, have been such term.” has been during (All emphasis supplied.)
The need for and of these purpose provisions manifestly interest, to protect against conflicts of self aggrandizement, con centration of and the or of the doc power, blurring obliteration trine of separation powers, performance by agents of the of their people delegated authorities to exercise the ex ecutive, legislative judicial and the organized gov functions of ernment. think We in incompatible barred officeswere tended to only those created the Constitution or by by laws enacted pursuant the Constitution in the exercise of some part of much of the sovereignty so as people was to the formal delegated which organization people Mary land constituted the current government of the by State adoption Constitution. 56 Art. Ill of the Section Con stitution of Maryland confers the General upon Assembly n “power all such as pass may be necessary Laws proper vested, into carrying execution the powers by Consti tution, in Government, office of Department, and the duties them imposed upon thereby.” delegated legislative powers of the General are plenary, as limited except by the Federal and Constitutions. Md. Committee v. Tawes, 412, 439. 228 Md.
Commentators, lay judicial, concur almost unanimously make, the view that the general of a state power legislature laws, alter and repeal to the pursuant by constitution which not include the power does legislature, created people law, con the fundamental or the to make or remake right legis be likened to a may A constitution aptly stitution. state in their themselves lative act enacted directly is, voters, entity sovereign political (that capacity their po aggregate for “the original power people, suffrage per litical the form to such delegated in capacity, Baker, they sons as deem Anderson v. 23 Md. proper,” fundamental, 619), and therefore is the act extraordinary which the establish pepole the structure and mechanism of their government. Cooley, Constitutional Limitations Ed.), p. (8th 355 ; Jameson, Conventions, 84-86, Constitutional pp.
586 ; Hoar, 80-82 ; Conventions, pp. 16 Am. Jur. 2d, 26 ; Constitutional Law Staples v. Gilmer (Va.), S. § *11 53; 2d 1 ; Ellingham Dye E. v. N. v. (Ind.), 99 State E. Cox, 8 Ark. a constitution Essentially, is fundamental legislation directly by the people acting their sov politically ereign is a capacity, while a law rule of conduct by prescribed the legislative agents of the under and people subject to the delegated limitations of the leg ordained previously superior islation, the Constitution.
This Court has recognized that laws and legislative actions to or relating amendment revision of the constitution differ greatly and from significantly one another. Vandiver, 78, 113-116, v. 101 Md. the Legisla- Warfield
ture, Constitution, under acting Art. XIV of the an proposed amendment to Art. I of the Constitution relating to the elective franchise and directed that the proposed amendment be submitted the voters ain manner prescribed at the next general election. The governor refused to submit the amendment because legislative had not been him proposal submitted to for signature rejection as bill would had ordinary have to be. The case was well argued by and fully leading lawyers of the time. Chief Judge McSherry, the unanimous Court on point, holding that submission governor not of a required proposed constitutional amendment because it was not a law potential enacted under the Constitution but a potential Constitution, part said 114-116 (pp. of 101 :Md.) carefully a law is bill between
“The distinction section aforegoing throughout [§ maintained ; and the executive for the veto] II providing of Art. mor make it section provisions and clear plain to a proposed application it has no certain ally is only provi This Amendment. Ar thirty section except law organic sion in the authority three, the Governor confers upon which ticle Con to amend the a bill. If a proposal sign or veto sections, either those by not embraced stitution them; terms and as its by 14 is unaffected then Article no to ap has power he the Governor do not include * * * it. under a measure propounded veto prove or an amendment the Constitution A bill proposing more, signed a law if not become would nothing a law if passed nor would it become the Governor by veto; it is re three-fifths over his because vote their people adop to be submitted to the quired tion or and not until it shall that a rejection; appear of the votes cast at the on such polls pro are posed amendment in favor thereof can the Gov ernor that it has been proclaim ‘adopted part Maryland as the Constitution It is not op erative adopted unless people—it is mere proposal them; to amend until sanctioned by and when becomes, their adopted by votes it a law the sense in which Constitution, that word is used in the * * * but a part the Constitution *12 “The are people the source of power. they It is who make and abrogate constitutions, written and when in the organic law which they have chosen for themselves have they designated General Assem- bly, consisting of and Senate House of Delegates more, and to be nothing agency propounding Constitution; amendments to the no has Executive in that agency between and the step to right people his say and to that without themselves approval they their shall not be to permitted express views on mea- * * * amendatory organic sures law. Whilst protect to is entrusted with power the Governor pre- not given is against legislation, he hasty people mat- in themselves guard against to them rogative He is not amending organic superior ter law. he must obey—it them. It is their will which his which will must they subserve.
“Article 14 is a distinct sub-division separate and deals, section, of the Constitution. It in its first exclu- with the sively process amending the Constitution and no deals has relation legislation. whatever to [It in its second section with sense of the taking the people every twenty years on a constitutional conven- tion to undertake a revision of the general Constitu- The provisions other in other articles which tion.] allusion has making— been made are to law confined this article Con- (emphasis supplied) is restricted to stitution making; two dis- subjects are widely connected in location substance.” The interpretation Dodd in his book Revision and Amend- ment Constitutions, 150', p. the Vmdiver decision gives is that “The Maryland ‘bill’ Court said that the word was used in the amending express clause simply proposal project, and not in the same manner as the word used else- where in the constitution to refer which to bills should become law by legislative enactment and executive approval.”
The Legislature not make may the effectiveness or validity of a general law depend its approval voters State, Brawner Supervisors, v. 141 Md. because the bindingly delegated to Legislature laws, power to make no reserving part of such power themselves (except by way of referendum), and the delegated power may not be redele contrast, gated. neither piecemeal amendments of the Con total stitution nor amendment by way adoption of the rec of the constitutional ommendations convention can take effect their given approval—to until re piecemeal the voters have XIV, of Art. manner total provided vision in the § XIV, 2 of Art. revision as Legislature as provided § Ch. 4 of the passed since the de provided Laws Court, or, cision and the affirmance mayhap, below *13 Md. suggests, by of 23 Baker, at supra, p. v. Anderson of the Con- in the case happened as of the people, acquiescence stitution of 1776. in the the constitution is not remaking
While the power nevertheless, act to Legislature may provide Legislature, To changes people. the mechanics for constitution constitution, created Legislature, body pro- use the for changing vide mechanics and sinews that constitution the will of the the election of dele- ascertaining people, gates and the submission of their work to the and at the people same time to class their actions legislative as encompassed by the provisions the constitution as to atmay laws first thought seem so as to be illogical unsound. Yet it has been accepted generally as sound and “A proper. supraconstitutional right requiring the assistance constitutional is authority cer- tainly an anomaly, and that is yet what exists in the case Hoar, op. conventions.” cit. 76. This p. technique is but part of the exercise of the fundamental right of the change their constitution fit; whenever and however deem they right constitutions, derives not from but is a retained inherent right above constitution, and beyond the and therefore actions of the Legislature making available and supporting the exer- cise of that right—which with considerable perception and ac- curacy has been termed peaceful revolution3—are actions in ex- Jameson, p. quotes George Conventions at saying M. Dallas as forthcoming 1836 of the convention in Pennsylvania: provided “A machinery peace- Convention is the * * * ful revolution. It civilized substitute for intestine war. assemble, When ours shall possess, territory will within the Pennsylvania, every sovereignty, except attribute of absolute such may yielded have been and are embodied in the Constitution of the United States.” Philip Perlman, Maryland outstanding lawyer B. who was States, later Solicitor Mary- General of the addressing United land Senate Committee Amendments to the Constitution and Ways 19, House Means Committee on March Journal Proceedings Maryand (1931) 517, 533, quoted Senate Maryland lawyer great Reverdy another to the same effect. Johnson Mr. Perlman said: dropped “The Constitution of 1867 the method of amend- ing so, contained 2 of Article XI of Section *14 ac- not and sovereignty of powers reserved people’s the ercise of The the Constitution. by delegated powers exercise of in tions not if did Baker, it supra, suggested, v. Court, Anderson :Md.) of 23 said hold, Bowie (p. Judge this when aof people the of of Convention powers “The Government, are a form of to frame assembled State to al- the of the people defined. It is right no where Government, abolish, ‘laying or institute new ter or organizing and its foundations on such principles, its form, most as to them shall seem likely such powers The Convention to effect their safety happiness.’ or reserved depository residuary is the sover- by present may Acts we amend the Constitution the of submitting people, the amendments to or General may by call directed to we a convention the vote be held twenty every years. forth These methods are set in the way But there is still another to constitutional Constitution. by precedent State, sanctioned in this revision because Maryland provisions limiting the in the Constitution the methods Conventions have never binding. been considered through years “Down the comes to us the voice of that Maryland lawyer, Johnson, great Reverdy who defended legality the the Convention called when the Con- authority stitution contained no for such a convention. And these are his views: principle ‘No man denies that the American is well settled, governments originate people, all the that with may modified; by authority like be abolished or power people, it is not even for them- within selves, right, to to surrender this much less surrender it provision, for those to succeed them. A there- who are fore, one of United Constitution States, limiting right people or abolish upon simply modify it, this And it was void. would super- ground ’76 our alone that of ’51.’ seded principle “Referring again to the American right change government, he their have said: notwithstanding revolutionary, but, its is ‘In nature it that, legal principle.’ is a others, dated October D. Bowie and Wm. Letter 1864.” unlimited, far re- so except the people, eignty States, and of the United the Constitution strained dependent upon action is law. Whether moral not, or not of the people ratification subsequent or established; when ratified adopted, but clearly within in, are unquestionably their acts acquiesced or wisdom wantonness limits prescribed. minorities, are or
act, majorities its effect upon are determined These judicial cognizance. subjects their adoption.” upon and acted recognized has Maryland consistently v. Baker that the people in Anderson enunciated principle alter, abolish right modify fundamental have *15 to their sover- according government and their form of replace eign pleasure. 1774, Proceedings Constitution Conventional Maryland of 184-89, 3, 1776, reveals pp. July
1775 & 1776 (1836), or Convention of which had been the Congress Maryland, acting for two government years, some a resolved “That new convention be express elected for the of forming new purpose government, and authority people only, enacting and ordering all things for the preservation, gen- and safety eral weal of this and colony” that all freemen twenty- above one, fifty owning acres of land or “in property this colony” forty pounds sterling “be admitted to vote representatives to serve in the said convention” and that “any person quali- vote, fied aforesaid to may be elected member the in- tended convention” if he had resided in the for a colony year preceding the election. Members of the armed “of forces this province” were expressly disqualified.
The was 1, 1776, election set for August and the resolving Congress or convention dissolved itself and abrogated its pow- ers and authority as of that date. The voters elected duly convention, to the new including number who had been members previous convention.4 The constitution Including, appear it would from the Maryland Constitutional Proceedings (1836), Barnes, 1774, Convention Richard & 1776 Carroll, barrister, Charles Chase, Samuel T. Chase and Jeremiah until governed was which under State produced, they making had but its people, ratified formally was until adopted not finally and was by them been authorized Dodd, Revision and respected. known were their views 12-13, Constitutions, indicates pp. and Amendment forming and on the influence direct popular there was Constitution, saying: final adoption a lively state took of this of the people “That some is shown government in the organization interest Carroll, Charles Worthington, fact that T. B. B. barrister, Chase, latter undoubted the two Samuel prepare leaders and members the committee to be from the resigned form of convention government, from their con cause had received ‘instructions they them, stituents, enjoining framing government state, this in their points adhere to implicitly with good government opinion incompatible public 2')eace happiness [Maryland 1774, 1775 Convention & Proceedings pp. and 22S there was no formal reference Although ]. the first constitution Maryland people, 17, 1776,
action taken by the convention on September The committee had probably served a similar purpose. convention a of rights bill reported proposed constitution; upon action report post 30th, until poned and it was resolved ‘that September *16 the said bill of and form im rights government of be for the of mediately printed consideration large, at twelve thereof be sent with copies that county out to each the state.’ at delay [Id. 258]” Constitution of 1776 39 that provided members of § presided resolving Tilghman Congress both the who over Matthew it called. and the convention although special suggested that, appear election was 5. It would Worthington, them, replace Carroll Chase reconsidered their to or remained in the convention. resignations returned to and either Proceedings 1774, 1775 & Maryland Convention 1776 of 237, 241, pp. (1836), the General Assembly profit, could not hold other office in which sat provision convention proposed adopted members legislative It also in Art. body. provided prior that it could be altered Act of two successive except by legislatures, the second which had to after elec be new tion. act Yet in 1850 an Legislature passed (Laws Ch. for election 346) calling to determine whether the people wanted a they constitutional convention called and if providing, did, for the election of and a delegates subsequent election which the new passed constitution would be people. Chapter 346 itself As provided members the General “shall sembly eligible to a seat in to the convention assemble as hereinbefore without prescribed, affecting tenure of their nine, eleven, respective Some—certainly offices.” mem perhaps bers of the General Assembly served in the convention notwith standing the provision of 1776.6 § The 1851 Constitution came into lawful and effective being by the action of the people, although not way prescribed the then constitution. no existing There seems have been challenge the act calling the convention the fact that members of the General Assembly sat as delegates.
The Constitution of provided in Art. 32 of the Declara- tion of Rights “no person ought hold at the time same more than one office of profit, created Constitution or * * laws of this State In the midst of the cre- dissension ated on the one hand by Maryland’s allegiance to the Union and on the other by sympathy loyalty neighbors, friends South, and relatives of the the General Assembly enacted Ch. 5 of the of 1864 for a providing Laws election “for special taking sense call people upon the of Conven- tion to frame a new Constitution and Form Govern- ment for this and at the State” same election to provide the election of delegates to the convention. This call for a convention was not under or in accord with the Constitution of 1851 which in Art. provided XI delegates 6. The roster of elected to serve in the 1850 convention lists nine with names identical to those of nine incumbent members 1849 General and two with the sur- same name. *17 of a constitutional calling of on the vote taking question census, the vote to be federal after each ten-year convention If the Assembly. for General delegates taken at election the provide was to Legislature then aye, the vote turned out for There was no other delegates. provision for the election amendatory pro- the General participation by the General As- fifteen members of cess. The records show that for by at a election not sembly provided were elected special 5 of delegates. Chapter then and sat as constitution Laws be eligible or Delegate may of 1864 provided “any Senator by proposed The constitution seat in said Convention.” in the absent by counting only the convention was approved unanimous in ap- to be almost soldiers’ which was declared vole Andrews, Maryland 554. History proval. Constitution, Art. Rights The Declaration office of more than one holding from prohibited any person of amendment. One By ways Art. XI three profit. provided Legislature amendments by was by passage particular for ratification. The second pro- with submission to the voters that, As- or more of the General vided whenever two-thirds be question a convention was sembly thought necessary, and, if the there should people agreed, submitted to the people third the convention. The pro- election for every twenty sense of taking vided people general subsequent leg- at a election and a years the point islative to a of a conven- favorable vote response tion and of delegates. the election convention came about from the desire largely oath to do with the test away required suffrage as to approved 1864 Constitution which was legality Baker, supra. great
Anderson v. was the popular pressure So quick again action that the three Legislature ignored set out in the 1864 ways Constitution and proceeding for a Ch. 327 of the called “vote on the question Laws of a call of a Convention to frame new and form and for assembling Government” a convention and the election of members of delegates (in clergymen, which Con- officers, gress, state’s and other but judges, attorneys leg- islators, not seek Four delegates). could election members
of the Legislature 1867 served as delegates to the Convention Convention, 1867 including the of the president Richard B. Carmichael, a resident of Queen Anne’s had been County, who from dragged judicial his bench in Talbot in 1862 by County Union soldiers and in put released prison (having been finally without to being brought trial).
The Convention 1867 and the subsequent of the approval which, voters produced the constitution under with amend- ments, we have since lived. The three earlier constitutions each had for provided alteration or as therein Per- change specified. because haps these constitutional prior had succes- provisions observance, been honored in sively the breach more in than the when the Constitution of 1867 was proposed adopted, made no for provision complete amendment save to provide (§ 2 of Art. that it XIV) should be the duty the General As- sembly “to for provide by at the taking general election Raw” of 1887 “and every twenty years thereafter” the sense of the people regard to convention for con- altering the section, stitution (the present amended in makes 1970 the next for a year and, taking the sense the if the people) convention, vote for a people to provide for its assembling the election of The delegates. sense to call a con- people vention has on several occasions been ignored Legisla- once, ture ostensibly, at least because of a legal that a opinion of the voters voting at the general election must ask for a convention and not this had occurred although majority voting on the particular question of whether to call a conven- tion had a call. approved
Instead for providing required ways complete revision terms, amendment under its the Constitution of 1867 Art. 1 of the Declaration of set forth Rights ringingly: all government
“That of right originates from the is people, founded compact only, instituted whole; solely of the good they have at all times, alter, the inalienable right reform or abolish Government, their Form of in such manner as they deem may expedient.” n Maryland from people 1776 until today have shown be- view, which we prevailing concur in the generally
that they sovereign power sound, retain the people to be lieve which constitution, legislative processes their rewrite not a part are power of that exercise lead to and assist conferred powers delegated bindingly previously sit in are selected who that those Legislature by people, are selected of the Constitution convention and do rewriting agents direct are the and therefore directly by which government, organized agents rather than people, their opinion, shown that also have The people State. the consti- rationed share, which are offices we which held may office which or the tution one a customer *19 are estab- are offices which office create the one who by helped aids or implements which a law by or lished the Constitution by cre- functions executive, legislative judicial the execution of who Constitution, people an of the agent and that ated the by office hold an within does not constitution a new helps create are of the people and actions These views category. prior in reaching greatly aided us have great respect entitled officer. is a constitutional not delegate a the conclusion that consideration aby furnished that view is More for support test cases have evolved standards that the guiding in reiterated These were a is an office. tests position whether 279, 281, Board, in Moser 235 Md. v. Howard County in- wise: law and casts position by upon 1. the was created cumbent duties which in nature and oc- continuing are casional; duty; 2. the incumbent performs important public 3. the calls for the exercise of some position portion State; term, has sovereign power position of the 4. the a definite issued, a which a required commission bond and an oath required; is one of position dignity importance.
Certainly delegate to constitutional performs convention a highly important However, public duty great dignity. not, he position holds was under the principles which we see as controlling, one created by law the term law is used the definition. The duties a delegate performs are a sense “continuing nature and not occasional” and in a way the po- sition term,” “has a definite but only four constitutions have been adopted in Maryland one hundred ninety-one years which, of a constitution like has century plant, making years
taken a hundred to bloom be said to' be occa- may fairly convention, A honeybee sional. like the male who delegate Maeterlinck, the Bee mates and dies (Maurice Life of (1964 Ed.), 194—“the kiss of an instant that shall p. unique him wed to death no less than to his cre- happiness”), performs ative and then exist as a duty functionary ceases to since public to the of which he is a mem- position delegate convention ber with The idea continuity ends the convention. contem- test for an office is in the case plated by ordinary lacking of a to a convention. delegate
Most does not exercise of the importantly, any part delegate is, sovereign power sover- any part State—-that eignty delegated their constitution to people through executive, or judicial govern- branches of the legislative ment, assume, though, even we he does exercise some may part of the sovereign retained them com- power people mitted to him to create a new constitution. help
Various courts have hold of shared the we the status concept 322, 323, of a v. delegate. Doyle (La.), So. said: constitutional are
“Such [to conventions] chosen to agents represent their constit- uents never particular public purpose. They have officers, been no styled and hold office in the sense *20 the Constitution. A is not a constitutional convention co-ordinate branch of the It exercises no government. law, governmental but is a raised in power, body aid of the desire to discuss and amend- popular propose ments, no governing which have force as as long they remain propositions.” 863, also v. Baker Rogers and v. Moor (La.),
See So. 430, head 174 N. (Neb.), W. are (“They delegates] [the sense; not in constitutional officers a strict are they officers who than create a Constitution rather officers who are created by In Chenault v. Carter Constitution”). 322 W. (Ky.), S. 623, 626, 2d the Court held that the choice of whether a con vention should called rested be with the elec ultimately entirely torate and said: “The to delegates the convention are the agents v. Frantz themselves.” the people but of legislature, not : 202) that (p. held Pac. Autry (Okla.), 91 * * of all Con- source power territory, a and state of a Constitution formation But in the gress. from the people. emanates power government or rep- not the agents were to the convention govern- existing [i.e., Congress resentatives agents repre- immediate but were the they ment] They territories. the two people sentatives from people authority derived their power sovereign capacity.” their with the
Hoar, indicating disagreement posi- cit. op. p. to a con- delegate cit. 317-20) tion (op. pp. of Jameson officer, an : says vention is the Illinois conven- delegate “The to position trust, and position public tion was undoubtedly not, office; if such regard was we public even a but extraconstitutional, a under the position as conventions refers to' the incom- constitution. When a constitution offices, be construed such should provisions patibility to under constitution relating solely as positions itself and to other unless positions apply sc stated.” clearly of Attorney
Hoar then an General of Massa- quotes opinion 187) chusetts follows : (p.
“ “office,” as Tt is view that the word used in my Amendments, article Vil 1 of refers to position of which exercises some of gov- incumbent power ernment, not to position person selected an advisory to act in or capacity framing scheme submitted to the change government ” rejection.’ adoption showing Legisla- his devoted book Illinois Jameson superior pending supreme ture over Illinois consti- point missionary devoutly and this of view tutional convention many reasoning points. his colored and conclusions *21 442
Hoar comments:
“It not con- does to debase the appear necessary in this in order to reach his vention way Attorney [the conclusion. It would be to sufficient hold General’s] in that the word ‘officer’ the constitution con- means stitutional officer.” disposition questions
The the matters involved (h) form requires little discussion. The both shows (i) questions they were submitted on the necessarily Legislature it, discretion, or premise that its could either call call not “at delay this time” or the call for two convention years. assume, proceeded we must before the parties, Circuit agreement Court that this which was premise irhplicit questions (h) correct for his (i) Judge Evans said: “It opinion is undisputed the General has (cid:127) the inherent to call a power Constitutional Convention any at time.8 answering claim that the of a calling convention was mandatory because number of voters favoring con-
vention was not a 13, of all who voted on September convention, and therefore the vote was not in favor of a Judge out pointed that the election Evans was not pursuant held XIV, 2, of Article the Constitution but by Chapters 500 § 501 Laws of enacted under the inherent power call a convention time and the any provisions Art. § XIV did not and that apply, the election was a special elec- unanimously agree 8. The legisla authorities almost that a state power time, ture has the inherent for a call convention at subject permissive where the constitution is silent on the where periodic calling existing interval for such established in the con Jameson, Conventions, 819, 394-403, stitution. See Constitutional §§ 574; 570, 571, Dodd, The Revision and Amendment Constitu tions, p. (“It has become the rule now established that where provision calling contains no constitution of a conven provision tion, expressly confining par has no amendment to a but provide by method, legislature may ticular law for Cooley, convention”); Conventions, V; Hoar, of a Ch. p. (8th Ed.), 85; Opinion In re Constitutional Limitations I.), City Birmingham (R. 433; Atl. Governor of Bessemer v. (Ala.), Co. 2d Electric So.
443 not to was whether the issue only presented tion at which a constitute the call did favoring and those call a convention He said: at that election. voting those majority throughout election’ ‘special “The of the words use the Laws and 501 of these two Acts 500 [Chapters referendum it clear that makes 1966] the primary not part of a Convention was election, at which entirely election. It was an separate majority vote was in issue. The only question the one a vote at on that one constituted question with either unaffiliated the entire election. Persons one ques- on this were to vote political party permitted tion; that it was makes conclusion inescapable but a separate spe- not of either part party primary, cial election. courts have sustained proposition
“Several awith gen- a be held concurrent special may election losing eral election without its separate special 640, Ky. In Houston v. character. Boltz 169 (1916), 76, a election to issu- special approve W. S. bonds, held with simultaneously gen- ance though election, eral to be Court special. still declared stated, 78: at page seem, therefore,
‘It the elec- holding would tion on a from the election day regular different elec- is not one of the essentials day special When, therefore, tion. 157a of the Consti- section tution that the on the road-bond issue vote provided election, held in be taken at a such special should law, up- manner as be law may provided by to be subject on the does the election require held election general different from upon day held election day, special may it follows that It election is nevertheless upon general day. election, called has been specially because it special purpose proposition spe- of voting upon no why submitted. And see reason cially we upon not be printed submitted should proposition ballot used in the held general election upon day.’ same also v.
See Const. Co. Board Com’rs. (1917), Eberhardt 281 ; 394, 100 Kan. Pac. v. Munce O’Hara (1940), 532; 340 Pa. 16 A. 2d v. Board Derryberry Com’rs. (1924), Election Tenn. 266 W. S. “One of the intervenors individual [the defendant] election, validity attacked the contend- special *23 and, it ing therefore, was not properly advertised there was one only election and and did Chapters 500 501 not a majority receive of the elec- votes cast tion. argument intervenors’ on to goes say [The that] the issue not having received a majority the votes cast, the General is Assembly not to call a required Constitutional Convention. 501, faces, 500 and on
“Chapters their that show they were be voted on at a special election. The stipulation and exhibits show clearly that if the various advertisements law, did not with meet the letter of the it was substantially complied with and in every voters of the part State received actual notice of the special election. At point, this the law no requires more. Tawes, v. 225 Md. [Dution 484] “The character of the as a referendum elec- special tion distinguishes it from the referenda held at gen- eral XIV, 2, elections under Article and Section makes the affirmative a direct vote mandate of the people.
“The final to be question considered is: can the (i) calling of the Constitutional delayed Convention be of two by period years ?
“By Chapter 501 of the enacting Acts General put to the electorate the Assembly question 'whether there shall be called a Convention earlier than 1 1967 and not later than 1 September Septem- 1968,’ ber and by enacting to the Chapter put electorate the whether the question Convention shall be assembled on 1967. September Both Chapters a 5-to-l by the voters by were approved ancl 501 Legislature by called was convention The vote. Assembly General the people. confirmed and mandate. this ignore cannot not have did the General
“It is true that sub- having But in 1966. oí the people take the sense fash- legal in proper mitted the question them. ion, mandate expressed itself to the it bound and unmistakable clear have spoken The people The only terms, is bound obey. the Legislature and elec- for the done is to provide to be thing remaining delegates.” tion of on questions views Judge with agree generally
We Evans’ said earlier we have this and what and from (h) (i) it his order affirmed why we apparent opinion time and called at this that a convention mandatory passage delayed. the call could not be Since Legislature in this Court affirmance order below and the for the call early has provided Ch. of 1967 Laws for the election mechanics of a convention established meet- subsequent and their year on 13 of this June in effect be- have (i) Questions (h) ing September not, of them would further discussion come moot *24 it, fruitful. we see dissenting:
Barnes, J. to all of I with the answers disagree given I dissent because I do in the majority opinion, although the considered questions and this Court the that the lower court agree majority with and determine the questions pro- consider jurisdiction had set forth in the I majority opinion. for the reasons pounded 500 and 501 of the Acts the that both opinion Chapters am of of are unconstitutional as Assembly Maryland of General XIV, 2 of Article in conflict with being provisions Section for the of the providing taking Maryland in to the of a Maryland regard calling sense of Consti- people election of 1970. general tutional Convention at the most important question—inherent my opinion 446 us—is
Question (i) propounded to whether Chapters 501 are rendered unconstitutional because conflict with Ar- they XIV, If ticle Constitution. these Acts are un- Section constitutional, Constitutional Convention obviously proposed indeed, upon held on or the call cannot be September Assembly, until it has taken the General sense a call regard to such at the General Election of and a at such election shall vote a conven- majority voters — words, tion. In other I would answered (i) have Question “Can the of a delayed by Constitutional Convention be “Yes, two must be until period years?” and it delayed conditions Article required XIV have been fulfilled.” It would then not been necessary have to answer of the other questions this time.
Both the lower court this Court have given consideration to the or primary whether question delegates the proposed Constitutional Convention would hold no under “office the Constitution laws of this State” most important question presented. original Counsel for the par- ties also so considered it filed very helpful briefs on be- half those parties careful and attention. gave exhaustive defendants, however, raised, Counsel for the intervening briefed and argued other questions regard to the validity holding the Convention on September
Although issue of whether or not delegates are “officers” well have been of may as a primary importance political practical to induce the matter—possibly General pass mind, enabling legislation at the 1967 is to my Session—it rather so far unimportant as the basic constitutional issues are con- say cerned. I this because if even it had been decided the ma- of the Court jority Constitutional Conven- officers, tion not, such were it would my opinion, have pre- vented the Constitutional Convention from meeting but would only have excluded the present members of the General Assem- bly and others from being members of the Constitutional Convention, as will be more fully considered when this issue later in considered this opinion. In view of the fundamental *25 character of the question the constitutionality Chapters 501,1 and will consider this issue first.
I. 500 cmd Chapters Unconstitutionality XIV, Article with being Acts 1966 as conflict Constitution. Maryland Section of provides Constitution Maryland Article XIV present as follows: Assembly; publica- Proposal General
“Section voters; tion; proclamation. submission to Governor’s Amendments propose Assembly may The General Constitution; Amendment that each provided to bill, embodying in a separate shall be embraced Section, stand when same will Article or as the all the members three-fifths of amended and passed Houses, and nays, yeas elected to each of the two Amend- with the proposed be entered on the Journals or amendment or bills proposing ment. The bill the Gov- order of published by amendments shall be each ernor, County, in at least two newspapers, and where not more be many published, where so may then in that newspaper, be published, than one may of Balti- in the City newspapers published in three more, four immediately preced- once a week for weeks election, at which the ensuing general the next ing or amendments shall be sub- amendment proposed As- mitted, the General in a form to be prescribed by for adoption voters sembly, qualified said against cast pro- or The votes rejection. amendments, shall be severally, or amendment posed Governor, in the manner prescribed returned cases, if it shall to the Governor that appear other election the voles cast at said on said amendments, severally, were cast in amendment shall, thereof, the Governor his proclamation, favor or amendments having said amendment re- declare the votes, have been adopted by said majority ceived part Maryland the people
thereof, thenceforth said amendment or amend- of the said Constitution. When part ments shall two *26 or more amendments shall be in manner submitted aforesaid, to the voters of this at the same elec- tion, shall be so submitted as that each amend- they separately. ment shall be voted 2. Constitutional conventions. Section It shall duty pro- be the of the General vide Law at the taking, election to be general for held in the nineteen year seventy, hundred and every twenty years People the sense thereafter, of a Convention regard this Con- altering for stitution; and a or majority voters at such election if of Convention, elections shall vote As- the General for session, sembly, its next at shall for provide Law convention, such assembling of and for the election of Delegates thereto. County, Legislative Each Baltimore, District of the of City shall in such have Convention a number of Delegates to its equal repre- sentation in both Houses the time at which the Con- vention is Constitution, called. But any or change, Constitution, amendment of the existing which bemay Convention, adopted by such shall be submitted to the State, voters and shall have no unless the of effect same shall have been adopted by a majority the vot- of ers voting thereon!’ (Emphasis supplied) Article 1 of the Declaration Rights provides:
“That all Government of right originates from the is founded in People, compact only, and instituted solely whole; the good have, of the at all they times, the alter, inalienable right 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 body Constitution are to be construed as one docu ment, Mayor & C. C. State, Baltimore v. ex rel. Board Police Baltimore, the City 15 Md. 376 (1860), and if the provisions the body of the Constitution are clear and un ambiguous those provisions are to be taken as a limitation upon the general principles declared in the Declaration of Rights. An- Article 1 Baker, Construing Md. 628 (1865). derson v. XIV body Article Rights and Declaration of a Constitutional it clear to me that seems together, of Rights can, of the Declaration under Article 1 Convention at any themselves direct action called accomplishment, this is of practical difficult Although time. done, of a aby petition could be example, Action called. Convention be electorate that Constitutional *27 in a Consti- or call of in the the regard changes to Assembly—as by contrasted by the General tutional Convention limited strictly by the themselves—is by people direct action body XIV the of the Constitution. Article of the definite Article makes clear and quite 1 of XIV Section proposing in Assembly followed the General procedure by to be an requires to the Constitution. This procedure amendments in both Houses favor of three-fifths affirmative vote of amendment, Journals, recorded in their respective proposed amendment, of text of the proposed the adequate publication ensuing general and the at the “next submission to electorate if 1 that election,” for rejection. provides or adoption Section amendment election said a of the votes cast at said “majority amendments”, a ma- and if the that to Governor appears thereof, the Gov- votes cast thereon in favor jority of the were that has adopted, ernor shall declare the amendment been thereafter, the amendment of the Constitution. part becomes of 1 have been held our by predeces- These Section provisions Stockett, mandatory sors to be and not Hillman v. 183 directory, 803 Md. A. 2d 39 (1944). 2 on the of Article the mandatorily imposes duty
Section XIV Assembly General to take “at a election to be held general the seventy, nineteen hundred and year twenty years every thereafter, sense a People regard the the Con- Constitution; if vot- altering vention for majority Convention, ers at election or vote such elections shall session, provide at next Assembly, by General its shall Pant * * assembling of such Convention When pro- posed new Constitution is framed the Convention it “shall be by tO’the voters of this and shall no un- submitted have effect have less the same shall been adopted by voters majority thereon. voting
450
The Article XIV the Constitution original provision that sense should be taken at people general twenty years election in 1887 and thereafter. every date changed “1887” was to “1970” amendment adopted words, by the in 1956. In other considered people electorate legislative peo- sense very problem taking ple to call a ago Constitutional Convention not quite years should decided that no such action Assembly General take until at the place eaidiest.
This Court
held that the
language
has
Constitution was
its draftsmen and that the Courts should
carefully
give
chosen
great
importance
construing
actual words used
Hill,
Constitution. Buchholtz v.
178 Md.
The lower was of the the General opinion court implied had powers take the sense of the times other than as prescribed for in of Article XIV. specifically Section Curiously enough, the apparently Court adopts this position and from the court’s quotes opinion lower effect, notwithstanding the citation in Note 8 of the authorities indicating that such “inherent “implied powers” or power” sup- posedly Dodd, exists from “The Revision and (quoting Amend- *28 Constitutions”, ment of “where the Constitution p. 44) State convention, contains no provisions but has no provision amendment to a expressly confining particular * * method out,
As has been in the Constitution is pointed of 1867 there both a provision “expressly confining amendment to a particular method in 1 of Article XIV and there is Section also a provision for the calling of a Constitutional Convention in Section 2 Article XIV.
It seems manifest the General has no “in- Assembly herent” or to do “implied” power directly an act contrary to the express provisions Constitution If the contrary itself. law, should ever be the the death-knell of constitutional govern- sounded, ment will have been as one of the principal reasons for a written constitution is to impose on limits the power of gov- ernment in protect order to of the liberty individual citizen. If legislative can, branch government will, State dis-
451 Constitution, will re- we have in express limitations regard supremacy of absolute system parliamentary verted to the British the success escaped by I we had thought from which had happily establishment of for American Independence, the War lim- the enforcement and Constitutions and the Federal State There cannot simply documents Courts. itations those con- in the General inherent or implied powers any itself. of the Constitution express to trary provisions Court, Super- Brawner v. Offutt, As for the stated Judge 586, 604, Atl. 250 : Elections, (1922) Md. visors and the people “The the Constitution adopted it it, unchanged is can and while it stands change alone Court as controlling binding supreme law govern- of the well as other department State’s every conditions changed ment its when people, the amend- make to amend it desirable its provisions, not in vio- ment must be made accordance with of its mandates.” lation Duke, Court, Johnson v. Delaplaine, for stated
Judge 434, 442, 180 Md. 2d : A. (1942) oí in- duty preserve “It the sacred the Courts Hence it violate the Constitution. integrity of their treat funda- would be a duty violation except law to modification in the subject mental with constitutional methods.” conformance higher “The is a authority Constitution any body than act or law officer or assuming it, act under for such an officer or must exercise body the basic subservient to law delegated authority In case of which the made. conflict the delegation or law must and the act in con- govern, legal validity.” flict must be held have no with Conventions ed. (4th 1887), § Jameson *29 f, 617-618, the following states : 574 pages degree “To determine the of strictness with which constitutional the call of authorizing Con- provisions in pursued,
ventions must be the absence of restrictive words, effect, in more mandatory their difficult. R correct, If the hereinbefore be that a position taken our under constitutional has legislature, system, power call a to amend or revise the Constitu- to Convention tion, authorized, the case though expressly pre- facts be A legisla- sented would this: by supposed Convention, a general ture call having power to discretion, is to given its do the same expressly power under certain conditions. What inference is war- thing ranted intention as to- the of the in imposing people those conditions ? were not content they Obviously, so to leave to the unlimited longer important power discretion legislature, but desired to restrict it declarations of their as to the express will time when, which, and the number and char- purpose whom, acter of the might voters a Convention called. If this inference be the conditions laid just, effect, become, down for exercise of the in power positive upon way, its exercise other prohibitions maxim, and the conformity good both civil law, expressum (cid:127)common cessare taciturn. In this facit reasoning, have gen- United States I erally, might say universally, acquiesced, though oc- made,
casional have been attempts under strong temp- tation, to induce the some of legislatures States Thus, to discredit it. the Illinois Constitution of 1848 n provided,that whenever of all the two-thirds members elected to branch each the General Assembly n shouldthink it necessary alter or amend the Consti- tution, should recommend they electors at the next election of members of the General Convention; vote for or and if it against should ap- of all pear the electors of the State Convention, voting had for a representatives voted session, Assembly, the General at their next should call Convention. members the dominant State, desiring party change early Con- stitution, and impatient the delay necessitated its *30 terms, act to call a strict to attempted carry through is, ‘a what was short styled Convention by cut/ alone, a reference a vote of the people omitting upon Assem- the next session of the General subject o£ to call, it, as re- to make the should that vote favor bly the Constitution. the scheme was quired by Happily, defeated, of to wiser course taken obeying letter the law of the supreme State.” only Not there no or inherent the Gen- implied power eral Assembly take the sense of the and then call a to people Constitutional Convention otherwise than as provided Section 2 of the as a Constitution but the general principle, history of Article XIV in adoption by Constitutions of its prior which drafted Convention Constitu- present tion of 1867 me shows that there was inten- conclusively to no tion that the General Assembly should have this power.
The Constitution of 1776 contained no for provision the tak- ing of the sense of calling a Constitu- tional Convention. Article Constitution provided LIX that a change in it could be a bill made the Gen- passed eral Assembly and it was at least three provided passed months before a new election the General was confirmed by the General Assembly containing those newly elected delegates. Pursuant provision the Constitution of 1792, 1795, 1798, 1805, 1776 was 1807, 1809, amended in 1810, 1812, 1837 and 1846.
In the Constitution of 1851 the forerunner of of2 Section Article XIV as XI appeared Article that Constitution and provided, in relevant : part, follows
“It shall be the duty legislature, its first session immediately succeeding, ascertaining, at the general next election of delegates, the sense the peo- ple Maryland regard to the of a calling Conven- Constitution, tion for altering and in case the ma- jority votes cast at said election shall be in favor of convention, the legislature shall provide * * assembling such Convention (Emphasis sup- plied) XI of that Constitution Article
In the Constitution changes. constitutional regard contained three provisions with 1 of the present almost identical 1 was Section Section the Constitution. regard to amendments to 2, however, It significant. prescribed: quite Section members elected two-thirds “Whenever *31 think it shall Assembly branch of the General each revise, or to' amend to call convention necessary Constitution, shall recommend to^ they change election members next electors to vote at the of Convention; if and General or Assembly against at said election all electors majority voting Convention, General Assem- shall for a have voted session, law for call- by shall at their next bly provide supplied) the same.” ing (Emphasis 2 shall consist of as then that the convention provided Section members as there are members of both houses of many shall within Assembly General and that the Convention meet three months of this election. 2 of Article 3 is similar XIV quite
Section Section as follows: present Constitution and provided general election to be held in the one year “At the and and in eight thousand hundred each eighty-two thereafter, the question, there be year twentieth ‘Shall revise, or alter amend the constitu- convention tion,’ State, shall be submitted to electors and voting all the electors at such majority case a any convention, in favor gen- election shall decide assembly eral its next session shall law provide by and for the election of of such assembling convention, section; as is in the but provided preceding no constitution agreed upon any amendment of this by assembled in of this shall pursuance convention article shall been take effect until the same have submitted State, electors of the a adopted 1 voting thereon.” (Emphasis supplied). those report 1. The of the Committee on Future to the Amendments
455 In the Constitution of the substance present Sections retained, 1 and 3 of Article XI of the Constitution of 1864 was but 2 regard submitting ques- provisions Section tion of a call for the General a Constitutional Convention to the eliminated. This can Assembly only was entirely mean not in- that the draftsmen of the Constitution of 1867 did tend that the General should thereafter have Assembly power Constitution, to it should delegated of the 1864 but Section be confined to the power duty given by Section substance, which, became Section Article XIY of the present Constitution.
There was good reason to remove the delegated formerly to the power General to submit the issue of a call for a Constitutional Convention at time to the people.
As several of the authorities cited in the majority opinion indicate, the preparation a new Constitution is a adoption Revolutions, “peaceful revolution.” whether accom- peaceful force, plished by are upsetting, productive much litigation, expensive only are resorted to as a last resort when condi- tions under the established government Constitution or have become so intolerable that a change must be made. As the Dec- *32 laration “Prudence, of Independence indeed, aptly stated: will dictate that Governments long established should not changed light causes,” for and transient and that had experience shown suffer, “mankind are more disposed to while evils are suf- ferable, than right to themselves by abolishing the forms to * * which are they accustomed Much of the Declaration of Independence given over to the listing oppressions, usurpa- Conslitulion was May submitted to the Convention on 1864 1864. “Proceedings Maryland See the Convention,” p. attempts proposed 119. There by were changing the amend draft required legislative majority the in from Section 2 “two-thirds” “three-fifths”; provide amendment of legis- 2 Section the impose lature qualifications should not restrictions as to the of dele- gates Convention; change to the in 3 from 1882 Section to 1872 change 20-year requirement and a in the 10-year Section to a requirement. proposed rejected All of by these amendments were pgs. the Convention. report Id. 375 to 377. of the Committee adopted originally by was submitted a substantial affirmative vote. p. Id. British Govern-
tions, conduct outrageous by cruelties and mother from in separating ment the Colonies justified which country. had Maryland 1867 was adopted,
When the Constitution up- in itself was This years. had three Constitutions sixteen By government. regular to the setting orderly processes time any by amendments for the submission of providing of the people sense taking General for twenty years every a Constitutional Convention at a cast of votes of such a Convention if call, all had general given election favored such a people changes expedient to be power necessary thought reserved changes the Constitution. All other for such power the Gen- by to the themselves and could not be exercised people eral Assembly. to amend the
As the power indicated in the majority opinion, too many, has freely—in opinion Constitution been been having there freely—exercised the General Assembly, by of over average This is an amendments since 1867. adopted that the will its indicates hardly two since This year adoption. made been in the face of conditions has not changed and other effective. The remarkable works public programs under activities administrations operating various State present governmental Constitution indicate that conclusively insure are powers granted by ample present Nothing growth being proper programs. well have I con- the record in this case—nor appears heard—any denied, tention that any any rights citizens have been oppressed, interests affected or any legitimate adversely impaired Constitution, If such present as so amended. conditions arise, should cured amendment. It undoubtedly could be they in- had been that the Constitution is not a alleged tidy present strument, detailed, unclear and that it is too too' contains long, and the But these criticisms—if language obsolete like. adverse *33 to matters of form and not to legitimate—in my go opinion, event, as are such matters they matters substance. any ma- ascertain could well wait until 1970 in order to whether at a election are jority general they voters believe of a Constitutional sufficiently important justify calling
457
Constitution,
its attendant ex
Convention
draft
new
with
effect. No
pense, subsequent litigation
upsetting
generally
doubt the draftsmen
had these factors
of the 1867 Constitution
mind,
Assembly
from the General
deliberately removed
themselves,
and reserved to
issue a call
people
power
for a Constitutional
Convention
as
except
provided
Section
opinion
2 of Article XIV.
my
The authorities
to confirm
appear
maxim,
in this
al
regard,
“Bxpressio
as the
unius est exclusio
terius” is
to the construction
constitutional
applicable
provi
390,
sions.
O’Connor v.
Atl.
Armstrong,
See
Pa.
149
655
299
;
Court,
54,
Harbert
(1930)
v. Harrison
Va.
39
County
129 W.
;
2d
S.
177
Yelle v.
2d
P.
(1946)
Bishop,
E.
55 Wash.
Bolin,
2d 1081
v.
(1959) ; Whitney
85 Ariz.
II Constitutional Convention is not mandatory because those voting the call did not constitute a majority “for” those at the voting election. This issue was presented by Question As I (h). have already indicated that the Constitutional Convention cannot at this time all, is, at course, called not necessary to answer the ques- tion. the issue Since was pressed intervenors, argued by I think it should be answered.
In my opinion, apart from the unconstitutionality Chapters mentioned, and 501 already 1 am of the opinion that the General Assembly had power no whatever to take the sense of special election, whether conducted itself as a oí a part primary election. The “sense of the voters” means the sense of a 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. As- suming, the argument, that the General had in- herent or call, implied power issue the there is most cer- no tainly inherent or implied power to submit the issue at any *34 in exception election. Without a general other than
election taking and the amendments constitution both every prior been have for a Constitutional Convention sense of the people at a election. general to the electorate to be required presented Article Referendum pursuant the people by referred to Laws elec- must be submitted Constitution the present XVI of such an because Why? Obviously a election. general at torate be should not of this in the basic law important change the electorate. minority a small by brought pass made at changes constitutional such basic submission of To permit of ma- very concept election frustrates the a general other than vote of a necessity majority of the jority requirement rule. important more a election even general the electorate at Convention the call of Constitutional when considering a call for such providing Constitution exception every without elec- at the voting general of those majority has required in call. tion vote favor of the at the Constitutional this question course of debate on Anne Arundel Randall of in Alexander
Convention observed : County aptly in of the favor majority
“If there should be Convention, and desirous change, of such called, then if such should Convention of the of the adoption favor greatly chances were hand, the it. On the other framed of a Con- adoption' much against chances were very stitution, called into existence of a Convention the work cast may who have a mere voters over those who of such a course in favor their votes it, fact that regardless against cast their votes Convention, bemay for the those who voted it, all against voted with those who united even ma- not constitute a did subject on the who then voted Vol. “Debates the voters State.” jority Convention,” 1851, page Maryland of a call of a Consti- submission authority of no I know than a elec- general election other Convention tutional of the lower Court or in the opinion cited and none is tion results in this case very of this Court. The majority opinion of the electorate minority show that a small graphically only 8, 1966, of November or even general who voted in the election Septem- election of those who voted the “primary-special” 13, 1966, 1 filed in ber call. From voted favor Exhibit B., in- lower court F. the individual Cockey *35 Joshua tervenor, data, from the and other taken following appears, of on the figures of the prepared by Office Secretary State 13, on the September 1966 Maryland Primary Election 8, November General 1966 Election. 13, 1966, the Primary there were September Election
cast, statewide, votes, 609,747 a Governor total of while 191,960 only votes were cast on the Convention so that Question, only approximately of the votes cast at that election were 31.5% cast either against for or the calling of a Constitutional Conven- 191,960 tion. 160,280 Of the votes on the were for the question 31,680 call and against, were so that only approximately 26.3% voting those at the election for primary Governor voted favor of the cal! Only of the registered voters of Mary- 11.5% 15, land as August 1966 voted for the call aof Convention. 1966,
At the general 8, 919,760 election of November votes were cast for election, Governor. voting 538,360 Of those at that voted on the Bay Bridge referendum, Question presented by of those voting for Governor in that If election. the pro- 58.5% call posed had been presented to the voters at general elec- 8, 1966, tion of November 459,881 votes majority would have been required for the approval of the call—a far from cry 160,280 votes cast for it at the election of primary Septem- 13, ber 1966. What possible legal justification can there be for purporting to take the “sense of the voters” aat “primary- special” election—known to have a smaller vote than the vote cast at a general election—when eight some weeks later only there would general be a election in the at which the call issues, with other submitted, could have been and the real sense of the people taken ? I conclude that the sense of the has voters not yet been taken or received by the General and the Assembly attempt take it aat election “primary-special” was unconsti- tutional and abortive.
It seems clear that under a for the provision calling a Con-
460 at a elec general electors voting if the of the
vention Convention, the proposal calling tion shall decide favor voting electors by majority qualified must be adopted the electors by majority only and not merely the election Waite, Mich. v. 359 on the itself. See Stoliker voting proposal 523, Mich. 65, People Alger, v. 101 N. W. 2d (1960) ; 2d (1949). N. W. Acts 500 and 501 Assuming arguendo, Chapters constitutional, are the intervenors in my opinion, 1966 were of those of a majority in their that in the absence correct position 1966, manda- it was not in the voting September election Con- call the Constitutional the General tory upon voters at the primary call submitted to the vention. The fact all one election was in 1966. This September election of elec- special election and it cannot be fragmented by election. There same as the primary tion to be held at the time of election officials set one only voting places, group were one was not and, of the election most importantly, proclamation sub- special call at a election but was that the was submitted which election the issue should primary election at *36 mitted at the as follows: was heading proclamation be submitted. direct- Maryland “Proclamation of the Governor of at time to submit to- voters of bill ing publication election, question Convention to primary for frame a new Constitution Maryland.” (Emphasis supplied) order,
In it was provided: the Governor’s * * * order that my “I do by proclamation, ** * twenty than not later bill be aforegoing published on primary to the election to be held prior Sep- days 13, 1966, proposed at which election the ques- tember * * * qualified tion shall be submitted voters for or rejection.” sup- adoption (Emphasis plied) true in of the bill body published,
It is that Section election, refers but it is which 'Chapter printed special the intervenor has that the .seems clear to me that established issue the call as a indicated that the proclamation whole that election and the independent to be submitted at the primary election—could well voters—not allowed to vote at primary at that election. concluded that could not vote they have Proclamation, intervenor addition to the the individual in having duly denied his answer that the election was special held, in Baltimore offered evidence newspapers published Arundel County County—two largest and Anne counties 13, in the which the September election of primary State—in 1966, 33, was advertised is Article Code required by (1957), Section Nowhere in these two advertisements were voters notified that there was election on the call any special 33, Constitutional Convention. Article 12(a) specifically Section that “the Board of requires Supervisors each shall county ten give notice of the of all days’ time elections each place * * * precinct county by of such in at advertisements least two * * *” newspapers general circulation said (Em- county phasis supplied)
A specimen ballot for Baltimore County issued Board of Supervisors of of Baltimore “Pri- Elections headed County Election, 13, mary 1966” September was also into introduced evidence. There is not word in this Ballot there Specimen was also an alleged “Special to consider the call for a Election” Constitutional Convention. On this Ballot on Specimen right hand side at the extreme top over list of primary candidates Judges Orphans’ Sheriff Court is block under 11, “Question FOR—AGAINST—“Should Convention be held September between 1968 to September draft a New Constitution for Maryland.” Curiously, there lever no provided for this block Ballot Specimen either over “For” or “Against”. Not only would a voter not know this was a issue, special election but the Specimen Ballot does not even indicate that is a there provided lever with which to make *37 the choice.
The doctrine of “substantial compliance” with the mandatory
of the election laws in
requirements
regard to notice resulting
from
television,
publicity
newspapers,
etc. as was invoked in
Tawes,
Dutton v.
225 Md.
“All cases turn harm by misleading has caused mistake in procedure or tending prevent or the electorate frustrate the vot- the intent expression intelligent full 495, 171 Md. A. (225 supplied) ers.” (Emphasis 2d at 693). misled but intelli- only the electorate was opinion
In my certainly pre- of its intent was most gent expression full call issue of the frustrated. The small vote vented n clearly indicates this. III. CON- TO CONSTITUTIONAL THE
DELEGATES OF AN HOLDERS OFFICE VENTION ARE CONSTITU- UNDER THE CREATED TION OR OP LAWS THIS
STATE. on this issue because disagree I with reluctantly can I if Convention be constitutionally think 12, 1967, the of a number mem- presence held on September General as members of the Con- present Assembly bers of a substantial stitutional Convention would make contribution formulation of new Constitution be prepared n ConstitutionalConvention for later submission to electorate Many members of the Gen- rejection. present approval governmental eral have had in the great experience number of and their advice problems years, helpful just, and counsel would most effective framing for Maryland. and well balanced Constitution however, the members my opinion, Con proposed hold or an Convention will an “office” profit stitutional office n iortrust” created or laws of this State.
463 Constitution—Ar- provisions Maryland applicable I, 33, ticle Article 35 Article Rights, of the Declaration Sec- 6, tion 11 and 17—have been adequately Article Sections HR set forth in and need not be here. majority repeated opinion 1 agree with the that the “need for and majority purpose these conflicts provisions against was manifestly protect interest, and the self-aggrandizement, concentration power, blurring or obliteration the doctrine of separation powers in the of their performance delegated agents people executive, authorities func- legislative judicial to exercise tions of the are organized government.” Many provisions designed temptation to remove the from self-aggrandizement members of the General so that an rather Assembly, objective, than a subjective, consideration those members in creat- governs ing offices and in creating increasing or of of- compensation fices.
Although as I out opinion points (and agree) make, “the general of a state alter power legislature to and re- peal laws pursuant to the constitution which the people created the legislature, right does not include the to make laws, constitution,” remake the fundamental in the Mary- Constitution, land the functions of the General in re- Assembly gard amendments to the and in existing regard are, to conventions to form a new constitution as already has out, XIV, been provided pointed expressly Article quoted above full. It will be to a delegates observed Convention to form a mentioned, such, new constitution are specifically Section 2 of Article 2 XIV and does the General give Section power such when the provide conditions set forth in 2 are met. Section has never considered
Although this Court this precise ques- before, tion me our decisions indicate to that a prior delegate to a Constitutional an “office” Convention holds and an “office of trust.” profit or held, exception, persons
We have
without
who are elected
Hill,
are
public
officers.
Buchholtz v.
178 Md.
280,
(1940),
predecessors
Allegany holding public County Collins, 122 Md. Atl. 850 also Truitt v. official. See Hill city public councilman to be holding Snow (1914) official, Metropolitan Westphal, Comm’n. County Howard v. County Md. A. 2d 56 and Hetrich v. (1963) *39 304, 222 2d 642 County, Arundel Md. A. Comm’rs. Anne 159 of a holder of a commissioner to be the holding county (1960) has advised that generally General Attorney office. public executives, compensa- legislators judges, receiving elected tion, or laws are of office under the Constitution holders public Maryland.2 of given have a broad and comprehen
We and our predecessors in the Consti to the word “office” Maryland sive interpretation a a notary public public tution. In that even 1964 we held County, Cottnty Board Comm’rs. Howard Moser v. officer. of of 279, held Md. A. Prior Moser has been 235 201 2d 365. offices; County in Howard public that a of were variety positions supra, a Metropolitan Westphal, Comm’n. member v. Commission; in Hetrich v. Howard County Metropolitan supra, Anne County, Arundel County Commissioners of State, in use Clark Business County Manager; Anne Arundel of 109, 2d (1950), Superin 220 Md. 151 A. 137 v. Ferling, Males; Press in Maryland Reformatory tendent of the D’Alesandro, 50, 2d 35 Md. 125 A. (1956), man v. 211 Council City and members Comptroller Mayor, City Fallon, 534, A. 2d in v. Md. 102 Nesbitt 203 City ; of Baltimore Att’y. County Courts, Ops. (1922); 460 Gen. 7 2. Clerks Circuit of Att’y. Att’y. Ops. Commissioners, Ops. (1921), Gen. 226 13 6 Gen. Ops. Att’y. Congressman, Ops. (1963); 2 (1928), 323 48 Gen. 214 salary—2 Ops. City (1917); Att’y. 352, 355 Councilman—with Gen. Att’y. Ops. Ops. (1926), Att’y. 352, (1917), 100 20 354 11 Gen. Gen. Att’y. 323, 332, Ops. (1963); Att’y. (1935), 48 Gen. 333 Gen. 586 Ops. Att’y. Att’y. 226, Ops. (1921), Mayors, 232 7 476 6 Gen. Gen. Att’y. Court, (1938) ; judges Orphans’ Ops. 386 (1922), 23 Gen. of Ops. Att’y. (1933) ; Att’y. 323, Ops. (1930), 48 Gen. 15 Gen. 237 326 repeal Conventions to consider 18th Amendment to State of (1933); Att’y. Constitution, Ops. 18 408 Gen. members to U. S. Att’y. Assembly, Ops. (1918), Ops. Att’y. 3 271 6 Gen. the General Att’y. Att’y. 231, Ops. (1923), Ops. (1921), 8 438 232 Gen. 12 Gen. (1927). 201 Gen.
465
board;
in Buchholtz
county
liquor
a member of
284 (1954),
Commissioners
Hill,
County
Board of
supra, the cleric to the
v.
Bender,
608,
Md.
173
196
in Kimble v.
Allegany County ;
v.
County
in
Comm’rs.
the peace;
justice
(1938),
Atl. 409
101,
Monnett,
Atl.
Treasurer
164
164
155 (1933),
Md.
County, 162
Montgomery
v.
Day
in
County;
Calvert
Sheriff of
Park ;
Takoma
221,
police justice
Md.
supra, present we five criteria which mentioned office,” although has to be position been held “public of be to a absence one of these criteria would not fatal or more that a office. As holding particular public pointed is position out in these criteria are: the majority opinion, cast in- upon
1. The was created law and position by duties in nature and cumbent which are not occa- continuing sional.
2. duty. The incumbent performs important 3. The for the exercise of some of position portion calls sovereign power of State. The for a definite term for
4. is which Commission position issued, is a bond and an oath required required. The of dignity
5. is one position importance. all criteria present are for the my opinion, position five to the Constitutional Convention. delegate
D that the not “under prin- indicates is position law as the term law controlling, we see as one created ciples by is is used in the definition.” No cited for this authority position and I it delegate cannot think is sound. If the position law,” by Constitutional Convention was not “created how not like full from grown created? It did Minerva spring head of 500 of contrary, On the it was created Chapter Jove. the Acts of Acts of Chapter 1966 and 4 1967. Chapter its title that it was an act for recites provide provide under certain circumstances “and to Convention Act appointment number and thereto.” This called, that if the Convention each each provides county in Baltimore have in the legislative City district shall Conven- tion “the same number of delegates” Chapter as Acts Session) shall elected at the General (Special provides 4 of the Acts of Chapter Election 1967 makes provi- sion with to the election those respect delegates provided 500. Both Chapter 500 and 4 are Acts Chapter Chapter the General Assembly, passed pursuant Constitu- present tion, Governor for presented signed his consideration and him. I think cannot that this not delegate is position “created law.”
I also believe that the position delegate to the Convention has “duties are continuing which nature and not occasional.” The elected holds his for the delegate position during entire time which the is in Convention session—a three and a four possibly month It continues for this entire period. period;'it is not spo- radic or duties are casual. The “occasional” so far as Indeed, Convention is concerned. of5 Chapter Acts providing compensation expense money for the delegates indicates that constant attendance is de- expected there is a *41 duction of from delegate’s compensation for day each $15.00 of unexcused from absence the the sessions of Convention. as,
The is not position fortunately created frequently generally amendments to speaking, constitutions are sufficient to meet new conditions, or changed rather than the of a constitution, Convention frame a new but this does not mean that called, when a Constitutional Convention is the of a ditties I do not are or not see the rele- delegate continuing. occasional of the sexual functions of the male century vance the plant honey majority opinion—as interesting bee mentioned the both are.
2. It conceded in the does majority opinion delegate is duty.” “perform important
The
the
of
contention
the Attor-
majority apparently adopts
General
this
also
the trial
ney
by
case
(which
adopted
court)
although
to the Constitutional Convention
delegate
people”
does exercise
it is the
sovereignty,
“sovereignty of
“sovereignty
he exercises rather than the
The sup-
State.”
distinction between
of the
and “sov-
posed
“sovereignty
people”
fear
of the
eludes me.
I
the “dis-
ereignty
respect,
With
State”
is
tinction is
without a difference.” In
there
no
Maryland,
one
All
emanates
sovereignty
sovereignty
but that of
people.
from the
official or other
exercise sov-
person may
No
people.
which is
be
the exercise
ereignty
sovereignty
people,
Governor,
by
Assembly,
General
no-
judges, members
distinction, in
public or
one else. There is no
tary
by any
my
opinion, between
sovereignty
sovereignty
State
unusual
authority
No
is. cited
of this
people.
support
concept
is
in the
I think
erroneous.
opinion
concept
criterion
exercised
required
sovereignty
degree.
to marked
It should
that the
pointed
phrase “sovereignty
out
the Court in
involv
has
been
used
cases
recently
only
State”
County
Board
Comm’rs.
Moser v.
ing executive officials. See
;
supra
Public)
County
Howard
County,
Howard
(notary
of
Metropolitan
Westphal, supra
v.
Howard
(member
Comm'n.
Commission);
County
Hetrich v.
Comm’rs.
County Metropolitan
County,
business
supra
manager);
Anne Arundel
(county
Retirement
Employees’
Trustees
Gary
Sys.
v. Board of
Md.,
“It
stated as a
deducible
may
fairly
be
from the
that a
discussing
question,
cases
position
law,
a
is
when it
created
with duties
public
is
office
cast
the incumbent which involve the exercise of
upon
and in
sovereign
some
portion
power
per-
concerned,
which the
which
public
formance of
nature,
continuing
also are
in their
and not occasional
or intermittent.”
Md.
The Constitutional Convention Con- preparing proposed stitution legislative exercises order. The power highest delegates formulate the highest organic law and the draft State’s of the proposed may Constitution only be in tota adopted electorate. Both the formulation—the legislative act—and the adoption by the occur before a must new Constitution can be effective. are necessary Both to establish the high- State’s est organic law. But the Constitutional Convention exercises sovereignty” function, i.e., “State connection with its primary it (1) must employ adequate function, personnel to enable it to (2) must authorize the expenditure of the revenues of its carry State functions and pay personnel employed by it. This means that the Constitutional Convention necessarily must contract in the name of the for the State services and sup- plies necessary carry Indeed, out its functions. ad- State op- ministration $1,000,000 has already budgeted for the initial eration of the Constitutional Convention. There will most likely in excess of the expenditures budgeted amount which the Treasury must This is pay. most certainly the exercise Convention Moreover, “State sovereignty.” the Con- to be legislation schedule adopt is to Convention stitutional if which new Constitution draft of the to the proposed attached not be part will is adopted, proposed *43 law general effect of public the “but shall have law.” See repealed amended or thereafter be may Act, Report Enabling Convention 16 of the proposed Section on Constitutional Commission the Convention 16, 1967, This rec- Act, 32. page January Convention Enabling 4 of ommendation, amendments, in Chapter adopted with Indeed of that Act. Section the Acts of 1967. See Section inclusion for the amended, to provide directs the Convention as * * * desirous) or necessary legislation (as of “implementing State, Annotated Code including in the books of this Statute adopt this power It difficult to believe that is Maryland.” them, “sovereignty of the is not the exercise codify statutes and that it is. is clear to me It State.”
4. and it was a definite term most has certainly The position and enacted in 1967 legislation proposed contemplated take delegate that a into law 4 of the Acts of by Chapter handle delegate as the does oath. bond is required No reason, re- bond is not collections for For similar public. Assembly. for members of the General quired It is one position is conceded majority opinion is. obviously dignity importance—as as a of the part A Constitutional Convention be viewed may is highest whole to as It system “government.” referred out the will of system branch of that which works relation to and restricted delegated political powder.Jameson his Conventions (4th 1887) treatise Constitutional Ed. §324 as “a refers a Constitutional Convention of Ihe part apparatus its work sovereign orga- which does as society political nism.” further states: He constitutional the sovereign,
“It is [the convention] organized purpose renewing as for the or repairing That same governmental machinery. sovereign, laws, organized for the purpose making is legisla- ture; as for the organized purpose applying carry- laws, into ing effect it is the judiciary or the execu- tive. These successive forms into which the sovereign itself, resolves are but systems organization having relation more or less government directly society. Together, they constitute the government ** *. government Commonwealth is a totality of those instruments through whose ministry its organization is political begun continued. It * * that totality which *.” governs, (Emphasis sup- . plied) addition,
In it is apparent that the Constitutional Convention Commission understood that the delegates were officers. proposed Act Enabling in the of the Commis- appearing Report 16, 1967, sion dated January is referred to as an position *44 “office.” for 7 of example, See the Act proposed (Re- Section port, 26), which in p. as provides, part, follows: “If a vacancy occurs in delegate the to the office of
Convention to the first of the prior meeting Conven- tion, vacancy Governor, the shall be filled the * * (Emphasis supplied.) also 36 of the p. See Report.
It was recommended that to take the delegates required oath or affirmation of prescribed by of Article I the Section present Maryland Constitution (see 8 of Report, p. Section the proposed Act.) 7 of the Section 4 of Acts of 1967 Chapter provides: “If a in vacancy exists the delegate prior of office
the first of the meeting Convention plenary session 12, 1967, on September the vacancy shall be filled by * * the Governor (Emphasis supplied). 8 of Chapter Section for the provides taking of an oath or affirmation in the form out in set 5 of the Chapter Section Acts for of 1967 provides the of the compensation delegates. short, both the Commission and the General refer to Assembly office, providing and treat it as. delegate” the “office of They from the Treasury. compensation an oath or laws an office under the Constitution delegate held thought do and so I. of Maryland, of the State Court were impressed trial court and the of this
The 1867 Conventions per with the practice to be mitting delegates members of the General Assembly notwithstanding constitutional Constitutional Conventions those and con profit, other office holding limitations those Constitutional delegates from this cluded practice profit” considered to under were not be “offices Conventions I this conclusion or laws. do not think prior delegate position follows. The validity holding prior Conventions Assembly members the General time the prior Convention was never challenged judicially met, that the Assuming is the in the case. present as situation members were elected improperly General de were officers qualified delegates, they nevertheless facto Bender, After the supra. Cf. Kimble v. adoption the Convention. constitution, no one chal of the could proposed of the illegal the action of Convention because lenge pres members of General relatively ence as of the few Assembly. convenes, it is
After judge the Constitutional Convention of the members and qualification of its when decides (as its 1864 Constitutional did that members are decide) Convention qualified, there can be no successful validly challenge to action, decided to the regardless might prior what have been Baker, supra. Anderson v. convening Convention. also See case one in judicial is the which a determina- present first tion prior convening has been to the sought *45 Convention, so issue that it is new unaffected entirely examples disregard constitu- prior possible illegality tional provisions. too,
Then the the are words of Constitution my opinion, “construction” of those ambiguous, prior so that no words conventions be considered to cause us may to prior depart Board meaning. from this Moser v. plain County See County, supra, Comm’rs. Howard that a holding notary pub- lie officer was an within the of Article 35 of Decla- meaning the Rights ration the notwithstanding to long practice established Indeed, the contrary. our decision in Maser a con- precipitated stitutional amendment exclude from notaries the defini- public tion of “office profit.”
As I read cases from than jurisdictions Maryland, other that appears authority that weight supports holding to a delegates Constitutional Convention are and that officers the existing constitutional dual prohibitions against office-hold- ing apply. Masher,
In v. Mich. Fyfe 112 N. (1907) W. of Michigan that: “No elected a provided person member the Legislature shall receive civil appointment * * state, within this A senator of the Michigan Legislature file attempted to for election to the Constitutional Convention of that state. The county clerk refused his name on the place ballot the ground that was not elegible he under the prohibi- tion dual against office-holding. The Court of Michi- Supreme gan delegate held that the to the position of Constitutional Con- vention a state that officeand not eligible senator was delegate. serve as a Court of Supreme Michigan stated: delegates “It conceded that to the constitutional * * * are convention state officers. all of We are that to the opinion constitutional convention come within the term appointment’ 'civil as used Constitution, provision receive their they from appointment state and therefore authority, members of the which Legislature the law enacted offices, etc., thus provided fixing compensation, ineligible are are both within delegates. They and letter of the spirit law. The writ is denied.” Gessner, v. 129 Ohio 195 N. 63 (1935), St. E. Court of held that a Supreme member of County Ohio Charter Commission convened draft a new constitution a state constitutional county (analogous convention) was the holder of a trust” “public office of within meaning Ohio Constitution and judge hence elected to serve on precluded Commission was provisions Ohio Con- *46 The Supreme as such a commissioner. serving stitution from in its opinion: Court of Ohio said of author- disagreement, weight
“While there is logical reasoning support proposi- and the more ity convention, in the dis- tion that a state constitutional and obligations, performs of its duties charge powers, and exercises sovereignty legisla- act of important at tive functions order.” Ohio high (129 St. at 64).
195 N. E. Heintzleman, D. 582 (1955, Kederick v. 132 F. Supp. Organic 512) provided: Act of Alaska Alaska), (37 Stat. shall hold or legislature “That no member of the created, or be to office which has been appointed increased, have been or emoluments which salary member, he while he was a the term for which during the expiration was elected and for one after year * * term; such Legis- as whether members the Alaska arose question lature entitled to as to the territorial Con- were serve Legisla- stitutional the Act provided Convention ture. In that were the District Court holding they ineligible, stated: eliminate,
“The is purpose prohibition far as in the mind of possible any hope legislator, himself, the office so created filled may their independent judgment insure to the It representatives. necessary good government from exercise their free legislators judgment end, and, selfish to this these have prohibitions motives statute If the been constitutions and on books. placed an office and territorial can create legislature rely Congress be- possibility lifting prohibition and the time to hold tween the time of the election office, said that the of bias possibility then cannot be extent.” possible (132 has been limited to the greatest 585). F. Supp. treatise, Conventions,
Jameson, supra, his states 324: § *47 doubt, there but little
“In can be that my judgment, is, a the enlarged member of Convention in and term, of an of ‘officer’ proper acceptation State.” 350, Doyle,
The relies v. 138 principally on State La. ; Moorhead, 811, 70 Baker N. 322 v. 103 Neb. 174 (1915) So. 561, W. 430 v. (1919) ; Autry, Frantz 18 Okla. Pac. 193 91 In (1907). my misplaced. reliance is opinion, Doyle, convicted cattle thieves their conviction appealed the ground jury that the lists the jury drawn commissioner were void there in the This vacancy because was commission. vacancy was have been caused alleged election to Constitutional Convention of 1913 of one the jury Louisiana of had commissioners in the participated jury who drawing list. It was argued jury office of commissioner vacated to and of The by this election another office. acceptance Louisiana Supreme sustaining Court of in the convictions quoted with from the —apparently approval opinion the trial court —as follows:
“* * member of a constitutional convention *[A] officer, is in no sense an proper that such a position casual, fleeting and and the does member not exercise his functions and as continuously part the regular and permanent administration of the government.” 351, (138 at 70 at 323). La. So. out,
It has already pointed been that the first test in Moser satisfied, i.e., case is that the had incumbent duties are which in continuing nature which are not occasional. also See Mechem, ; State, Public Officers, ex rel. (1890) § Offices 59, 63-64, Clark v. 66 N. C. Am. Stanley, Rep. (1872). The Court has incorrectly analyzed of a Louisiana function decision, constitutional and its convention is of my opinion, little weight that a support member of proposition constitutional convention is not an officer. Moorhead, supra,
Baker v. recognizes delegates are point Convention Nebraska officers. terms have fixed officers “who were they whether that case was elec- general at to be elected office, have so that would they In hold- Constitution. the Nebraska provisions tion under the term having officers delegates were that the ing fixed of Nebraska stated: Court office, Supreme with section read connection “Section terms would indicate that office, has to do with which to do officers elected have with provisions only those office, have fixed who terms and should elected election be- called with reference to time of their The members of the ginning terms. convention no fixed have term the Constitution office, itself the convention be called at time within may months three after the election of its members.” (Em- *48 816, 432). Neb. at 174 N. W. at phasis supplied). (103 supra, Frantz v. suit Autry, injunction prevent involved an to created in the election of officials in new counties county two the the Constitutional Constitution of Oklahoma proposed at the same election which adoption Convention the provided or the There noth rejection of new constitution. was proposed delegates suit whether in the the of the ing involving question and, indeed, to Okla the Constitutional Convention were officers did not have at the existing filing homa an constitution time of States, It then a territory suit. was United authorized an to to form a constitution and be Congress Act of proceed as a the Union. It held the equity admitted of that questions court the as such were erroneously enjoined election in on issue cognizance. point not This is not the judicial of case of delegates whether to the Convention were “officers.” that to the Constitutional Conven- delegates
1 consider under are the holders an office created the laws of tion that the prohibitions and Maryland Constitution or laws are against office-holding ap- Constitution dual Maryland plicable. indicated, the that I have conclusion already
As officers, matter practical political as although importance are en- General to for the Assembly vote possibly inducing
476 itself,
abling legislation, does not prevent, holding Constitutional Convention. XVI,
Although Maryland provides Article office, 2 “that no measure or or creating abolishing any Section ** * term duty of officer shall be changing salary, law,” enacted an as emergency 500 of Acts of Chapter law, 1966 was passed as an we such emergency have said that an an attempt pass law does render stat emergency invalid, ute but it merely following makes effective on the June 1, stated, as provided in Article dictum way XVI. As we Vehicles, in Allied American Co. v. Commissioner Motor 626, 150 607, Md. A. 2d 421 (1959) : Act, “If the Legislature that an which un provides 1, der Art. may not take effect until is to take June sooner, effect the Act stands will but not take effect 504-05, 494, until State, v. 177 Md. June Woelfel 826 ; 286, 288.” 9 A. 2d Gen. Op. Att’y. In my opinion, this is a law so- correct view the applicable that Chapter 500 would not be it was invalid void because passed measure emergency to be effective purported 6, upon the date of its rather passage May than June 1, 1966. assuming, arguendo, General could
Even validly take the sense of a- regard Con- calling stitutional Convention prior the General Election 500 and 501 of the Chapters Acts of are valid that there was a proper affirmative vote at a valid elec- special tion Convention, such approve seems clear *49 to me that it was mandatory upon General Assembly per time we filed curiam order the Court 7, 1967, on March to call the Constitutional on Convention 12, September 1967. This issue is implicit Question (i), above discussed. The question propounded the electorate was not whether the Assembly General should call Constitutional 12, 1967, Convention September but “whether there will 1967, be called a Convention not earlier than September, not later than 1 1968.” This was the September, only question submitted the electorate on the of the and it clear Convention seems to me that General have repealed could of the Acts of 1966 and Chapter changed date for the meeing Convention at time any between 1, 1, 1967 and September September 1968. This most certainly is within the exact language question submitted to the electorate. Neither the lo'wer court nor the majority of the Court gives reason no and cites which would authority remove the right the General Assembly to call the Convention at any time between September 1968. I con- September clude that there is no valid reason and that there no authority holding the General I Assembly might not have done this. would so have answered Question (i).
I do not think under the it is circumstances that necessary desirable to consider questions other to us. an- propounded My swers to are, think, the other I questions and it obvious would unnecessarily prolong this dissenting them opinion develop detail.