MARYLAND COMMITTEE FOR FAIR REPRESENTATION, ET AL. v. TAWES, GOVERNOR AND BOARD OF STATE CANVASSERS, ET AL.
No. 52, September Term, 1961.
Court of Appeals of Maryland
Decided April 25, 1962.
2. Objection To Remarks.
The final contention of the defendant is that prejudicial error was committed, when, during the direct examination of the defendant with regard to the beatings that had been inflicted on his sister, the court remarked that “this alone is no defense” and that “it was not binding on the jury.”
Since the case must be remanded for a new trial, we deem it unnecessary to discuss this contention.
For the reasons stated herein, the judgment must be reversed and the case remanded for a new trial.
Judgment reversed and case remanded for a new trial; the costs to be paid by the county commissioners of Wicomico County.
The cause was argued on October 17, 1961, before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.
The cause was reargued on December 12, 1961, before BRUNE, C. J., HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ., and MACGILL, J., Associate Judge of the Fifth Judicial Circuit, specially assigned.
James P. Garland, Assistant Attorney General, and Joseph S. Kaufman, Deputy Attorney General, with whom was Thomas B. Finan, Attorney General on the brief, for appellees.
Brief Amicus Curiae filed by League of Women Voters of Maryland. John I. Heise, Jr., and Charles A. Horsky on the brief.
PRESCOTT, J., delivered the opinion of the Court.
In its entire history, this Court has seldom, if ever, been called upon to decide a case of greater, or more far-reaching, importance than the case at bar. It involves the composition and proper organization of the State Government itself, and the correlative duties and responsibilities of the coordinate branches thereof. The problem calls for the best efforts of all three branches of the State Government in order to furnish to the people of Maryland, without the uncertainties of an interregnum and its attendant risk of chaos, an orderly and continuous system of self-government that will not violate any of the provisions of the Maryland or Federal Constitutions. It needs no citation of authority to state that if any portion of the system of Maryland‘s government infringes upon the Federal Constitution, which is the supreme law of our land, it must yield to the provisions of the Federal Constitution. And if it does infringe upon the Federal Constitution, it is also invalid under our own constitution, which provides:
“The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, * * * are, and shall be the Supreme Law of the Stаte; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to
the contrary notwithstanding.” Maryland Declaration of Rights, Article 2 .
We deem it appropriate, at the outset, to say that the questions involved in this case do not bring on a clash between any two branches of our State Government. We, as members of the Judiciary, are not required to declare any previous action of the Governor or of the Legislature invalid or unlawful. The foundation question posed is whether
The decision of the Supreme Court of the United States in the recent case of Baker v. Carr, 369 U. S. 186, presents problems that must be considered by all three branches of our State Government. There can be no doubt that the decisions of the Supreme Court construing the Federal Constitution and Acts of Congress pursuant thereto are conclusive and binding, not only upon the state courts,2 but also upon all other branches and departments of the Federal and State Governments. In the Baker case, as in the case at bar, citizens, who were eligible voters, sought declaratory and injunctive relief. They challenged the validity of the Tennessee apportionment statute upon the ground that they were being denied “equal protection of the laws” under the
The case reaches this Court upon appeal from a decree of the Circuit Court for Anne Arundel County, as a Court of Equity, which sustained demurrers to appellants’ bill of complaint requesting declaratory and injunctive relief,4 and dismissed the same.
The bill alleges that the plaintiffs (appellants), with one exception, are residents, taxpayers and eligible voters of the counties of Anne Arundel, Baltimore, Prince George‘s and Montgomery (hereinafter sometimes referred to as the “four suburban counties“), and the City of Baltimore. The other appellant, the Maryland Committee for Fair Representation, is an unincorporated private association composed of tаxpayers and eligible voters residing in the aforementioned counties and elsewhere in Maryland.5 The defendants (appellees) are: the Governor of this State, whose duty it is to issue commissions to candidates elected to office in state elections, in conformity with the statements and determinations made by the Board of State Canvassers and delivered to him by the Secretary of State (
The bill further alleges (with the allegations supported by Exhibits) that the 1960 population figures, based on the Federal census taken in 1960, show the present total population of Maryland is 3,072,999. The total combined population of the Counties of Anne Arundel, Baltimore, Montgomery and Prince George‘s and the City of Baltimore is 2,312,485, which is approximately 76% (percentages hereinafter mentioned are usually approximate ones) of the total 1960 poрulation of the State. The population of the remaining 19 counties is 760,514, or 24% of the total population. Yet, under the representation now provided by
Further allegations of the bill assert that the four suburban counties and Baltimore City are the only political subdivisions of the State subjected to under-representation in the General Assembly, and these allegations are supported by plaintiffs’ Exhibit D. This Exhibit shows that when the entire population of the State elects 29 senators, each, population-wise, represents some 106,310 persons of that population. None of the counties of Maryland has a population of over 106,310, except the four suburban counties. And, if the composition of the State Senate were based upon the present population alone, the four suburban counties and Baltimore City would be entitled to 22 instead of 10 Senators. The Exhibit shows that in Baltimore County the mean figure of 106,310 persons represents but 22% of its population, аnd varies upward in the other counties to a peak in Kent County, where the same mean figure represents 692% of its total population.
The Exhibit discloses a like situation with reference to representation in the House of Delegates (based upon 25,065 of population for each Delegate): all of the suburban counties
The bill also contains allegations that the four suburban counties and Baltimore City contributed for the fiscal year ending in 1959, 84% of the income tax revenue, 73% of the sales and use tax revenue, 83% of the corporation franchise tax and 70% of the revenue obtained from business licenses; and, although the four suburban counties contain 46% of the total motor vehicle registrations in the State, they received back only 12% of the total allocation to the various political subdivisions of the motor vehicle fuel tax.
The bill further asserts that no legislative relief is available to the appellants, and it points out and specifically names at least eleven bills that were introduced in the General Assembly, during the last ten years, for achieving some reapportionment of or change in the representation now provided in the aforementioned
The bill also states that under the provisions of
The complaint further asserts that the appellants are suffering irreparable injury as a consequence of the “illegal discrimination in the exercise and effeсt of their voting rights and the taxation without adequate representation to which they and all eligible voters” of the four suburban counties and Baltimore City are subjected by virtue of the above mentioned
The prayers, condensed, are:
(1) That the court grant a declaratory judgment holding that
(2) That the court declare that the representation in the General Assembly as now established by said
(3) That the court declare that the General Assembly‘s failure to reapportion its membership in accordance with a formula which reasonably reflects the present population of the different counties and Baltimore City violates the Equal Protection clause and the said Civil Rights statutes, as well as
(4) That the court declare the General Assembly‘s failure to convene a constitutional convention, “as approved in the General Election of 1950,” violates
(5) That the Court permanently enjoin the Board of State Canvassers and the members thereof, as identified herein, from determining, certifying, or in any other way indicating the Board‘s approval of the election of any candidate to the General Assembly of Maryland in any State election to be held in November 1962 or thereafter (unless such future State election be held on an at large basis), until such time as the General Assembly of Maryland shall have enacted and submitted for a referendum vote by the eligible voters of this
(6) That the Court enjoin defendant Tawes from issuing commissions of elections to any candidates for the General Assembly of Maryland in any State election to be held in November 1962, or thereafter (unless such future election be held on an at large basis), until such time as the General Assembly of Maryland shall have taken the action requested in paragraph (5) of these prayers for relief;
(7) That the Court enjoin the Board of Election Supervisors of Anne Arundel County from issuing commissions to any candidates to the General Assembly of Maryland from Anne Arundel County in any state election to be held in November, 1962, or thereafter, unless held on an at large basis, or the General Assembly shall have taken the action requested in prayer (5) above;
(8) That the Court retain jurisdiction of the case, require the defendants to pay the costs, and grant such other and further relief as may seem just and proper.
We shall first determine what we consider the subsidiary questions raised by the appellants. In regard to prayer (2),
In view of what we hold below in regard to the other prayers, we deem it unnecessary to consider specifically prayers (3) and (7). The underlying purpose of these prayers and of the whole bill appears to be to obtain relief for the future. Insofar as prayer (3) may seek a declaration as to the past, our comments below on prayer (4) are applicable to it also.
Prayer (4) asks for a mere declaration that the General Assembly‘s failure to convene a constitutional convention, as the result of an election that occurred more than ten years ago, violates certain of the provisions of our Constitution. It is no more, we think, than a request to answer an abstract question, which, if answered, would serve no useful purpose. Such action is not included among the purposes of declaratory relief, under our statutes. 1 Anderson, Declaratory Judgments, §§ 3, 222. The declarations requested in prayers (2) and (4) seem to have been framed with the Federal Declaratory Judgments statute,
This brings us to the pivotal questions to be determined. It will be noted the Court is requested to declare that
If Sections 2 and/or 5 are unconstitutional, whose function, duty and obligation is it to declare them to be so?
But it is suggested that although it is the general rule that courts determine questions of constitutional transgressions, this is not so when “political questions,” i.e., questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government, are involved; and that the question now being considered is a political one. We are referred to such cases as Kidd v. McCanless, 292 S. W. 2d 40 (Tenn. 1956), and the cases therein cited. It is unquestionably true that the courts will not determine purely political questions, but this concessum does not determine whether the quеstion now being considered is a political one. The question would give us considerable concern, and we would discuss it more thoroughly, were it not for the Supreme Court‘s decision in Baker v. Carr, supra. In that case, where the facts and issues involved were quite similar to those in the case at bar, the Court considered, exhaustively, what are, and what are not, “political questions.” It specifically considered Kidd v. McCanless, affirmed 352 U. S. 920, which was the forerunner of and involved the same statute in, the Baker case. No useful purpose would therefore be served if we discuss Kidd elaborately. The Court, in Baker,
We may add that the Supreme Court of Tennessee in Kidd v. McCanless, supra, did not in terms invoke the political question doctrine, but based its refusal of relief on the ground that the declaration sought by the plaintiffs would, under the Tennessee doctrine of de facto officers, leave the State without a legislature.
Unfortunately, the term “political question” is more a label indicating a result than a guide as to whether or not a particular question is purely political and so non-justiciable. In Baker v. Carr, supra, the Supreme Court‘s stated holdings (as we noted above) were (a) that the court [the District Court] possessed jurisdiction of the subject matter; (b) that a justiciable cause of action was stated upon which appellants would be entitled to appropriate relief; and (c) that the appellants had standing to challenge the Tennessee apportionment statutes. To arrive at holdings (a) and (b) it was necessary for the Supreme Court to determine only questions of Federal jurisdiction and of justiciability under Federal law. Much of its discussion of prior cases in which the Court had taken the view that the questions therein presented were political, is directed to a showing that many of these cases involved questions the determination of which was committed to one of the other coordinate branches of the Federal Government. A number of these involved the provision of the Federal Constitution guaranteeing a republican form of government to each of the
There was no need in Baker v. Carr, supra, for the Supreme Court to pass upon the power of a State court to deal with questions of State legislative apportionment. Since we are bound by our Statе Constitution as well as by the Constitution of the United States to give effect to the supremacy of the latter, and since we recognize the decisions of the Supreme Court of the United States as binding interpretations of the Constitution of the United States, it seems to follow that the holding of the Supreme Court in Baker v. Carr, supra, that a question such as the one here presented does present a justiciable question under the Federal Constitution, is controlling here. Though under the separation of powers rationale for many of the political question cases cited in the Baker case, the courts of this State might be powerless if no Federal constitutional right were involved, the very foundation of the appellants’ case is the alleged violation of their rights under the Equal Protection clause of the
That such a case as this is appropriate for consideration by a State court is, we think, implicit in the vacation of the judgment and remand by the Supreme Court of the United States to the Supreme Court of Michigan of the case of Scholle v. Hare, 369 U. S. 429. This is an apportionment case involving the provision of the Michigan Constitution, as amended in 1952, which froze representation in the State Senate on a geographical basis therein fixed by the amendment. The Michigan Court relied heavily upon Colegrove v. Green, supra, in reaching its conclusion (360 Mich. 1, 104 N. W. 2d 63). The jurisdiction and the obligation of State courts to enforce and protect rights created by the Federal Constitution or by Federal statutes is well estаblished, in the absence of any limitation upon State action by Federal statute or by the nature of the
In a number of cases in other States there have been provisions in the constitutions of those States calling for reapportionment by legislative action. Authority to initiate legislation to conform to such a constitutional requirement is not vested in the courts of those States, yet in a number of instances, courts have acted in such cases and have not considered themselves barred from doing so by the political question doctrine. Here, it is alleged that apportionment provisions of our State Constitution impinge upon rights under the Federal Constitution, which are expressly made superior to any conflicting provisions of the State Constitution. If these allegations are well founded, the invalidity of our apportionment provisions is no less than if we had a constitutional requirement for periodic reapportionment by the Legislature on a basis of population and the Legislature had failed to carry out the mandate. The duty of our courts to determine the validity of provisions of the State Constitution in the light of the Federal Constitution is, as wе have already noted, well established. As Mr. Justice Brennan pointed out in the Baker case, citing Nixon v. Herndon, 273 U. S. 536, “the mere fact that the suit seeks protection of a political right does not mean it presents a political question.” 369 U. S. 209.
The Supreme Court of our nearby, sister State of New Jersey had a very similar situation to the one at bar presented to it in 1960. Citizens, who were taxpayers, brought an action seeking a declaration that the 1941 New Jersey apportionment law then in effect had been rendered unconstitutional by
“There is no doubt, as we have stated, that it is within the competence of the Judiciary to adjudge a reapportionment act violative of the Constitution. Some of the defendants suggest that to do so would be to create chaos or anarchy, because no matter how long the filing of our mandate was withheld to permit the enactment of a curative law, the state government would be completely disrupted if the Legislature did not act within that time. Although we agree that if the 1941 act has become unconstitutional, resort could not be had to an apportionment act of an earlier vintage because any such measure would also be invalid by the same test, we do not believe that the allegedly feared result would ever come about. A judiciary, conscious of the sacrosanct quality of its oath of office to uphold the Constitution, cannot accept an in terrorem argument based upon the notion that members of a coequal part of the government will not be just as respectful and regardful of the obligations imposed by their similar oath. Any less faith on our part would be an unbecoming and unwarranted reflection on the Legislature.
“Concrete examples of justification for such faith are available. The two State v. Cunningham cases, supra, [State ex rel. Lamb v. Cunningham, 83 Wisc. 90, 53 N. W. 35; State v. Cunningham, 81 Wisc. 440,
51 N. W. 724.] reveal that on March 22, 1892, the Supreme Court of Wisconsin declared the existing apportionment act invalid. On July 2, 1892 a special legislative session passed a new act. It, too, was invalidated by the same court on October 7, 1892, but ten days later, at a second special session, another reapportionment was adopted, and that act validated the notices of election previously issued by the Secretary of State for the November 8, 1892, eleсtion.”
The Court decided it would make no declaration at that time, but it would retain jurisdiction in order to afford the New Jersey Legislature time to consider the adoption of a constitutional reapportionment statute. Asbury Park Press, Inc. v. Woolley, 161 A. 2d 705, 712, 716. The New Jersey Legislature met, and, in accordance with its duty, enacted a reapportionment bill.
Also, in Magraw v. Donovan, 163 F. Supp. 184, a three-judge District Court considered, in 1958, the constitutionality of Minnesota‘s apportionment statute. The Court assumed jurisdiction, stated that, “[i]t is not to be presumed that the Legislature will refuse * * * to comply with its duty under the State Constitution,” and that “* * * if there [were] to be a judicial disruption of the [then] present legislative apportionment * * *, it should not take place unless and until it [could] be shown that the Legislature * * * [at its next meeting] advisedly and deliberately failed and refused to perform its constitutional duty to redistrict the State.” The Court then deferred decision in order to afford the Legislature full opportunity to ” ‘heed the constitutional mandate to redistrict, ’ ” but retained jurisdiction with leave to any of the parties, within 60 days after the adjournment of the next session of Minnesota‘s Legislature, to petition the Court for such action as they deem appropriate. Thereafter, the Minnesota Legislature, in accordance with its duty, enacted a reapportionment bill, and the action was dismissed.
In Jones v. Freeman, 146 P. 2d 564, 570, the Supreme Court of Oklahoma stated: “It might be well to point out that in 1938, the courts of twenty-two states had еxercised the power,
or had stated that they had the power, to review legislative apportionment acts upon constitutional grounds * * *.” See also the Annotation in 2 A.L.R. 1337, and Lewis, Legislative Apportionment, 71 Harv. L. Rev. 1057, 1066-1070.Section 2 provides, inter alia, that one State Senator shall be elected from each county and each of the six legislative districts of Baltimore City, by the qualified voters of their respective counties and legislative districts, and they shall serve for four years from the date of their election.
Section 5 states that the membership of the House of Delegates shall consist of 123 members, and apportions them among the counties and the legislative districts of Baltimore City.
There is no provision of the Maryland Constitution that expressly provides for reapportioning of the representation in the General Assembly.6a Article XIV, Section 1 provides for amendments to the Constitution generally. It states, in substance, that the General Assembly may propose amendments, and if passed by three-fifths of all the members elected to each of the Houses, they shall be submitted to the qualified voters of the State for adoption or rejection; and, if it shall appear to the Governor that a majority of the votes cast at said election were cast in favor of the amendments, the Governor shall proclaim said amendments to have been adopted by the people. Section 2 of said Article XIV provides, again in substance, that the Genеral Assembly shall provide by law for taking, at the general election in 1970, and every twenty years thereafter, the sense of the people in regard to the calling of a constitutional convention and if a convention be assembled each county and legislative district shall be entitled to a number of Delegates thereto equal to its total representation in both Houses at the time of the convention. Thus, it is seen that if the allegations of the bill of complaint are true, and we must assume them to be true for the purposes of the demurrer, the chances of the appellants’ obtaining relief from
From what we have said above, we hold that the question now under consideration is not a political one, but one that it is our duty to determine.
We now arrive at a point where it is proper for us to decide whether the well-pleaded allegations of the bill of complaint, which, as stated above, are admitted for the purposes of the demurrer, are sufficient to show that appellants’ constitutional rights of suffrage are being impaired by what they term “the deliberate, discriminatory and gross dilution of [their] rights of suffrage which has prevailed in Maryland since 1867, and grows worse with each passing year.” We could write page after page on the cherished rights of citizens to еnjoy free and reasonably equal suffrage, disfranchisement through gross malapportionment and its adverse consequences,7 and the vigorous criticisms of malapportionment by legal commentators,8 representatives of the press,9 and public officials, but, if we did so, it would only be a repetition of what has been said time and time again, and practically all, if not all, of which was considered by the Supreme Court, the ultimate interpreter of the Federal Constitution, in the case of Baker v. Carr, supra. We think the answer to our present question, in the main part, is contained in the decision in that case.
We do not think it possible (or advisable if it were possible) to state a precise, inflexible and intractable formula for constitutional representation in the General Assembly. The determination in each case must depend upon the facts exist
History,11 also, has been recognized as a pertinent consid
The well-pleaded allegations of the bill of complaint, as we have noted above, state that 24% of Maryland‘s population elect 66% of the State Senators and 51% of the members of her House of Delegates, and, in the present posture of the case, inquiry into the rational basis for such apportionment seems to be called for. We, therefore, hold that the demurrers should have been overruled, and the chancellor should now receive evidence to determine whether or not an invidious discrimination does exist with respect to representation in either or both houses.
We turn now to the proper relief to be granted, if Sections 2 and/or 5 are determined to be unconstitutional. It is suggested that they should not be declared unconstitutional as to the November election of 1962, because this action would be adjudicating future rights. The courts, ordinarily, will not decide future rights in a declaratory action, but “where the declaration of future rights is bound up with a present necessity of a declaration of the same, and these present rights depend upon such a declaration, then the reason for refusal to grant declaratory relief disappears.” 1 Anderson, op. cit., § 231. In the same section, the learned author states the same principle thus:
“After all, howevеr, it should not be overlooked that the true purpose or mission of the Declaratory Judgment Act is to guide parties in their future conduct to avoid useless litigation. If an actual controversy exists and that controversy is of a justiciable character necessary to meet the demands of the act, the remedy may, and should be invoked, and where it appears clearly that the effect of the determination of the issues raised by a decision in a declaratory action will be to avoid much useless expense and burdensome litigation, and it is clear, likewise, that an actual controversy exists, then the remedy is proper, even though it is granted for future use.”
If the chancellor should find and accordingly declare that Sections 2 and/or 5 of Article III of the Constitution of Maryland and all of the previous provisions of the original Constitution of 1867, and amendments thereto,12 relating to the
The possibility that an adjudication of the invalidity of Section 2 or Section 5, or both, of Article III might create a total or partial legislative hiatus after the election of 1962, leads us to express some views with regard to procedures which might render action of an equity court going beyond mere declaratory relief unnecessary or inappropriate.
There is no provision in the Constitution or election laws of this State that permits an “at large” election of the members of the General Assembly, as suggested by the appellants.
If the Court should declare that Sections 2 and/or 5 are invalid as to the November, 1962, election, it should also declare that the Legislature has the power, if called into Special Session by the Governor and such action be deemed appropriate by it, to enact a bill reapportioning its membership for
A reapportionment Act might take the form of an actual increase or decrease in the number of seats in either or both houses of the General Assembly apportioned to the several political subdivisions of the State, or might adjust the number of votes or the fractional votes to be cast by the members so as to achieve the same relative voting strength as if an actual reapportionment of membership (with each member having one vote) were made. If a reapportionment bill be passed as an Emergency Act, the latter course (leaving the membership in both Houses, numerically, as it now is), probably, would avoid a conflict with
In the circumstances above assumed, namely, that Sections 2 and/or 5 are declared invalid, the decree might also declare that the General Assembly would be empowered to propose a constitutional amendment providing for reapportionment. This presumably would accomplish the same result proportionately between the different subdivisions of the State as that provided for in any reapportionment Act adopted for the 1962 election, and it might include provisions for future reapportionment designed to avoid a recurrence of the present problem. Since it has been traditional in this State to have the matter of representation in the General Assembly expressly regulated by the State Constitution, it might be thought desirable to draft any Act dealing with the 1962 election as a stop-gap measure, and to provide in any Constitutional
Of course, the courts cannot direct the Governor to call the General Assembly into extraordinary session; that is a power the exercise of which lies entirely within his discretion. Nor can they compel the General Assembly to enact a reapportionment bill. These are powers that the courts neither possess, nor profess. But, the courts do have the power and authority to restrain the potency of actions of the coordinate branchеs of the government (except in regard to purely “political questions“) when they transcend constitutional limits. Watkins v. Watkins, 2 Md. 341; Planning Commission v. Randall, 209 Md. 18, 26, 120 A. 2d 195. And the courts may require, by mandamus, the performance by executive officers of ministerial duties, and also enjoin them in the performance of such duties. Magruder v. Swann, 25 Md. 173; Brooke v. Widdicombe, 39 Md. 386; Soper v. Jones, 171 Md. 643, 187 A. 833. The issuance of commissions by the Governor to those elected to office has been held by this Court to be ministerial in nature. Magruder v. Swann; Brooke v. Widdicombe, both supra.
If the Governor sees fit to call a Special Session of the General Assembly and the General Assembly deems it proper to enact a bill that apportions its membership so as to meet constitutional requirements, the chancellor would be unwarranted in granting injunctive relief. He should, therefore, not enjoin anyone at this time, but he should retain jurisdiction, so that proper injunctive relief can be granted before the November, 1962, election, should the situation at that time call for the same.
With this disposition of the case, it becomes unnecessary to discuss appellants’ arguments concerning alleged violations of the Due Process clause.
The appellees, who were defendants below, have taken no action that would make it proper to award costs against them in this suit.
Decree dismissing appellants’ bill of complaint reversed, and cause remanded for further proceedings in conformity with this opinion; appellants to pay the costs; the mandate of this court to issue forthwith.
HENDERSON, J., filed the following dissenting opinion, in which HORNEY, J., concurred.
In Baker v. Carr, 369 U. S. 186, the factual situation was different from that in the instant case. The Tennessee constitution fixed the maximum number of State Senators and Representatives, and called for a census of qualified voters every ten years and a reapportionment among the several counties and districts in accordance with such enumerations. In adopting the latest reapportionment Act in 1901, the Tennessee General Assembly chose to rely upon the Federal Census, and departed widely from the constitutional standard of apportionment. Since that date all legislative proposals for reapportionment failed of passage. Meanwhile there was a substantial growth and redistribution of population, causing a considerable disparity in the ratio of representation to population as between the various counties and districts, and a consequent dilution of the voting strength of the complainants.
In Maryland, the Constitution itself fixes the exact number of State Senators and Delegates and the counties and districts from which they are each elected. There is no provision in the Maryland Constitution or law that calls for reapportionment. Representation in the Senate has always been based on geographiсal considerations, and never on population. In 1776 the Senate was composed of fifteen Senators, nine from the Western Shore and six from the Eastern Shore. In 1851, each county and the City of Baltimore became entitled to one Senator. The Convention probably followed the pattern of the United States Senate, composed of two
In the House of Delegates, population did not become a factor until 1851. In 1864 and again in 1867, a sliding scale was adopted fixing the representation by numbers ranging from two to six. See
Baker v. Carr, supra, was a civil action brought in the Federal District Court under
If we assume that no valid justification for the present allocation of representation in Maryland can be made, and that no remedial constitutional amendment can pass the Legislature,3 and relief by the calling of a Constitutional Convention is likewise unavailing,4 the instant case would seem to fall within the ambit of Baker v. Carr, supra. But there are points of distinction. If the Tennessee Act of 1901 were stricken down, and the Legislature were recalcitrant, it is conceivable that the District Court might there order an election to be held and the votes tallied in accordance with the mathematical formulae set out in the Tennessee Constitution. At least, the Court would not have to invent formulae for the purpose. On the other hand, if the provisions of the Maryland Constitution were stricken down there would remain no guide, standard or constitutional means whereby a legislative body could be
I believe it is a basic tenet of the common law, to which the inhabitants of Maryland are entitled under
In Griffin v. Illinois, 351 U. S. 12, Mr. Justice Frankfurter, in а concurring opinion, suggested that the decision in that case might be applied prospectively, like a legislative enactment, but apparently the suggestion was not approved by any other member of the Supreme Court. In the New Jersey case,
The statement in the majority opinion in the instant case, that if the provisions of the Maryland Constitution, Art. III, secs. 2 and 5, were stricken down, in whole or in part, the Legislature would possess the power to remedy the situation, I think is gratuitous and unsupportable. The point is not properly before us under Maryland Rule 885, since it was not raised below, and was never mentioned in the arguments in this Court. See also Comptroller v. Aerial Products, 210 Md. 627, and Rose v. Paape, 221 Md. 369. In any event, the matter of how the Legislature shall be selected has always been regulated in Maryland by the Constitution itself. To my mind, no doctrine of plenary or inherent powers can take away a right to deal with a subject matter expressly reserved to the people of this State, and vest it in a legislative body. Cf. Bennett v. Jackson, 116 N. E. 921 (Ind.).
The opinion of a majority of the Court in the instant case goes even further. It directs the chancellor, upon proof of the allegations of the bill, to make a declaration striking down the provisions of one or more sections of the Constitution, but at the same time to defer the effectiveness of the declaration until after the expiration of the terms of office of the present members. I cannot understand how that can be done. But if it can, I cannot see how those members could enact legislation reapportioning and reconstituting the General Assembly in the teeth of constitutional provisions that are still in force and effect. Yet this is required, in addition to the passage of a constitutional amendment, as a condition precedent to the validity of the 1962 elections. The opinion further directs that a clause ratifying the proposed legislative reapportionment be included in the proposed constitutional amendment. It seems to me that this is an advisory opinion to a coordinate branch of the Government which is not a party to the suit, and a declaration in terrorem.
A declaratory judgment itself is not mandatory, but is limited to occasions where a declaration will serve a useful purpose or terminate controversy. Givner v. Cohen, 208 Md. 23, 37. Constitutional questions are not to be dealt with abstractly. Liberto v. State‘s Attorney, 223 Md. 356, 360. We have repeatedly held that this Court cannot render advisory opinions. Hammond v. Lancaster, 194 Md. 462, 471. Whether this court is prevented from deciding moot cases by a lack of jurisdiction or a rule of decision is beside the point.6 There is little dispute as to the end result.
The prayer in the bill wherein it is implied that, as an al
The appellants argue that even if we lack the power to enforce a declaration, it would serve a useful purpose. I venture to disagree. I think it is not within the realm of judicial propriety to issue a declaration in terrorem. In the words of Mr. Justice Clark this would amount to “blackjacking the Assembly.” Mr. Justice Frankfurter, in his dissenting opinion (p. 62, Footnote 151) said: “Appellants’ suggestion that, although no relief may need be given, jurisdiction ought to be retained as a ‘spur’ to legislative action does not merit discussion.” The suggestion was not discussed by any other of the members of the Court, in Baker v. Carr, supra. I assume, therefore, that the decision was predicated upon a finding that the Federal District Court possessed the authority to make a declaration effective, although the means was left to future determination.
In Baker, the Supreme Court held that in an extreme case of disproportion in voting strength the Federal courts can and should “fashion” a judicial remedy. It did not hоld that there must be a State remedy. On the contrary, in the opinion of the court, delivered by Mr. Justice Brennan, he said (pp. 235-237 of 369 U. S.): “* * * in Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40, the Supreme Court of Tennessee held that it could not invalidate the very statute at issue in the case at bar, but its holding rested on its state law of remedies, i. e., the state view of de facto officers, and not on any view that the norm for legislative apportionment in Tennessee is not numbers of qualified voters resident in the several counties. Of course this Court was there precluded by the adequate state ground, and in dismissing the appeal, 352 U. S. 920, we cited Anderson, supra, [343 U. S. 912] as well as Colegrove [328 U. S. 549]. Nor does the Tennessee court‘s decision in that case bear upon this, for just as in Smith v. Holm, 220 Minn. 486, 19 N. W. 2d 914, and Magraw v. Donovan, 163 F. Supp. 184, 177 F. Supp. 803, a state court‘s inability to grant relief does not bar a federal court‘s assuming jurisdiction to inquire
Since I find nothing in the prior decisions of this Court that would support the exercise of an equitable remedy under the allegations of the bill, I think the chancellor‘s dismissal of the bill should be affirmed. Judge Horney authorizes me to say that he concurs in the views here expressed.