*1
appellant property to the
default,
the sale of
Mortgage Act
expressly provided
lawful.
mort
through
foreclosure
title
that no
derived
impeached, either at law or
gaged property
shall
bought in
ground
property
equity,
on the
assignee. Code, 1939,
mortgagee
Art.
or his
assignee
mortgagee
If the acts
Sec.
their
make
acts
does not
lawful, their confederation
were
conspiracy, must
shown
establish a
unlawful. To
persons
two or more
confederation of
there was a
lawful
unlawful act or a
performance of an
for the
damage
means,
resulted there
act
unlawful
Co.,
Knickerbocker Ice
from.
Ice & Coal Co. v.
Sumwalt
Knoche v. Standard Oil Co.
Jersey, 138
Decree amended bill com- plaint dismissed, costs above appellant. below to the ROBEY, Clerk, v. WILLIA FRANK C. et al. M BROERSMA, J. et. al. 41, April Term, Reargument, 1942—On No.
[No. Term, October 1942.] *2 Reargument June Decided 1942. Modified January *3 argued J., Delaplaine, Bond,
The cause was before C. Marbury, JJ. Forsythe, Collins, Hammond, Attorney General, Deputy with whom Hall brief, Walsh, General, Attorney on the was William C. appellants. for the
Hilary appellees, for W. Gans J.,
Forsythe, opinion delivered the of the Court. Maryland, Assembly session The General at the 1941, passed (Chapter 209) an Act to new sec- add a Article, tion, 73A, to License known as Section Laws, Maryland 56 of the Code of Public General provisions which Edition. material Act with The of the now we are concerned are: person, corporation selling of-
“73A. Each firm or or fering through vending coin-operated for sale machines goods cigarettes, except merchandise, articles or or required, for the sale of which traders’ license is shall pay first obtain a therefor and an annual license shall vending license fee for such machines as follows: charging “For each machine from to 2‡ 5‡ merchandise..............................$1.00 charging “For each machine more than merchandise..............................$2.00 type one “Where machine more than the same vends article, de- or brand of for the fee shall be basis required pur- by adding termined the number of cents type chase each or brand The clerk of article sold. issuing supply the license metal shall the licensee with a tag stamp applied vending to be to such machines in regulations Comptroller. accordance with of the State expire April day All licenses shall' on the 30th each year.” Assembly emergency
The General declared it to be an Act, 1,May to take effect on 1941. using appellees are merchants coin automatic
machines to distribute to customers nuts and various candy chewing gum. They flavors of bars and filed complaint City bill of in the Circuit Court of Baltimore seeking enjoin appellants, who are Clerk of Pleas, Comptroller Court Common State Inspector Licenses, enforcing the Chief of State from designated provisions Chap- which is ter 209 of the Acts bill, appellees
In their assert the said Act First, charged is invalid for several reasons. it is illegal the Act creates “traders” discrimination between selling by imposing similar merchandise fees license *4 selling, upon arbitrary based the method of which and is unreasonable, and therefore Section" is violation of -1 of the Fourteenth Amendment to the Federal Consti- Mary- ; in conflict with tution and also Article XV of Second, illegal Rights. that the land Bill of Acts creates using vending between merchants coin discrimination by imposing requirements machines different on machines merchandise, type carry different which one but of type brand; brands, or than one of the same and more exempts certain because the Act from license fee objection types of machines. third to the is impressed it it is invalid because not with the was Maryland, Great Governor Seal and required approval for his within the time law. complaint filed,
A demurrer which to the bill was Answer, stipulation facts, was overruled. and were filed, bill, and the cause submitted answer and stipulation passed granting of facts. A decree sought, declaring legislative relief and the Act dis- Amendment, crimination in violation of the Federal or Maryland Rights; Declaration of because but void it named Governor before time go in the Act for May 1, it to into effect From appeal that decree this was taken. considering appellees’ charge,
In first that of dis- crimination, what must be observed that the Act actu- does, ally classify vending is to and automatic machines place classes, purpose them in three groups, or exacting using any a license fee from all merchants placed of the machines second and third classes. In the placed offering first class are all but machines article, one requiring operate. choice of 1 cent to exempt Machines that class are from a license fee. placed In the offering class are second all more machines article, than requiring one choice of to 5 cents to operate. A license fee of SI for such machines is re- quired. composed The third class is of all machines re- quiring operate, more than 5 cents to license fee Thus, that, exacted.' will be seen §2 classified, depends entirely are machines the license fee upon the choice of machine each merchant elects to use. support charge legislative
In order to classifi- illegal discrimination, appear cation is must arbitrary, capricious, classification is otherwise courts interfere, legislative will not because that is a matter of Every presumption discretion. support must made in legislative theory body properly validly powers. exercised its Brown v.
321, 330, 9 A. 2d and cases therein cited.
330 classification, fee,
By license is according uniformly upon imposed all to merchants type There no of machines each elects to use. dis That crimination between machines of the same class. fixing system license fees has been held not to violate or Fifteenth Arti Amendment the Fourteenth Federal Rights. supra; Maryland cle of the Bill of Brown v. 250, Drug Claypoole, 165 Read v. Chemical Co. 527, Jackson, 742; 51 166 State 283 U. S. A. v. Board 1248, 1464, R. R. 75 A. L. S. Ct. 75 L. Ed. 73 A. L. 1536; Hamilton, Magnano 292 54 S. Ct. U. S. Co. Coal and 78 L. Ed. Carmichael v. Southern Co., Coke Ct. 81 L. Ed. U. S. 57 S. case, supra the Jackson U. S. A. L. R. 1327. In [283 1248], taxation “The 75 L. Ed. held: government very to existence is fundamental of the exer the States. The restriction shall be so deny equal protection cised of the as to laws equal compel adoption does not of an iron rule of taxation, taxation, prevent variety nor or differences subjects, or discretion the selection of the classifi or businesses, trades, properties, call for taxation cation * * * ings occupations. statute or fact dis criminates in favor of certain class does make arbitrary, a reason if the discrimination is founded * * * able distinction. As was said in Brown-Forman Co. Kentucky, page (217 supra, at U. 30 S. S. 578, 580, 54 883) very Ct. L. Ed. : “A wide discretion must legislative power be conceded to the of the State occupations trades, callings, classification of businesses or regulation subjected special which or forms of through taxation an or license selection excise tax. If the capricious arbitrary, or neither classification is nor upon some rests reasonable consideration of difference policy, equal protection or there is no denial the law. It is not the function court of this in cases present justness like propriety consider tax, motives, to seek or to criticize the *6 legis- adoption of policy prompted public which adopted duty sustain the classification lation. is to Our Legislature differences there are substantial if occupations separately classified. dif- Such between the great.” need ferences not governed principles the decisions in
The which accepted fully by this court. In above cases have been 171, 704, Shapiro, 168, 703, v. 131 101 A. Ann. State Md. 1918E, 196, court stated that: “The Cas. obligation, or
is under no constitutional
either Federal
State,
uniformity
rule
in the
to observe a definite
of
en
required
of
actment
its license laws.
to estab
regulations
system
lish the
for all the
same license
authority
political
which
interests and
divisions over
its
right
separate
extends.
It has the
to make
and different
provisions for
areas. The
distinct classes and
exercise
power
of
constitutional
such
does
conflict with the
right
laws,
equal protection
process
or
due
regulations
law,
prescribed
operate equally
if the
upon
affected,
uniformly
the class and within the area
clearly
and their
unreasonable.”
limitations
are not
283,
Magoun
Bank,
Illinois
&
v.
Trust
Sav.
170 U. S.
594,
1037;
York,
18
42
New
143
S. Ct.
L. Ed.
Budd v.
517,
468,
247;
12
U. S.
S. Ct.
36 L. Ed.
Barbier v. Con
27,
nolly,
357,
923;
113
5
U. S.
S. Ct.
28 L. Ed.
Holden
Hardy,
383,
169
18
42
v.
U. S.
S. Ct.
L. Ed.
22,
780;
Lewis,
State Missouri
101
25
v.
U. S.
L. Ed.
618,
989;
Asphalt Co., 194
24
Field v. Barber
U. S.
S.
784,
1142;
Missouri, 152
48
Ed.
Duncan v.
Ct.
L.
U. S.
377,
570,
485;
14
38
Ed.
American
S. Ct.
L.
Coal Co. v.
Co.,
143;
Vernon,
Allegany
564,
etc.,
128 Md.
98 A.
Mt.
Frankfort,
etc., Co.,
v.
111
75
Co.
Md.
A.
134
Rep. 636;
State, 126
Am. St.
Md.
94 A.
Criswell
549;
180;
State,
Ruggles
Sweeten v.
Md.
Gordy,
A.
Jones v.
The facts and circumstances signing fully the the are and of this Governor Therein, stipulation set out in the of facts filed in the case. originated Bill, appears, Senate it this Act that was-passed by February the on It and Senate passed Delegates House on March was later the then, Act, printed form, 1941. The in final but without Seal, on turned over to the Governor Great was form, that March for his examination. In Seal, ready without the Great Gov- it was not signature. May ernor’s But on Great Seal Act, officially attached was and was day Governor. On same he it. stipulation appears of facts from It further presentation during the unofficial period between official on March and the to the Governor the Act considering May the Governor presentation on hearing persons gave a to those April 24 hear- on which a in it. the first Act It was interested ing given. appears devoted the Governor energy, de- great time, his efforts to deal of his signing propriety Act. He ascertained termine the Council, Legislative approval the the of the had Also, in- he had and of the Tax Revision Commission. Comptroller. compiled by formation about it State many for, and There were briefs and recommendations against, During period the Act to be considered. give required time the Governor was careful many Acts, detailed consideration to of other hundreds required hearings, reading of which innumer- able communications.
By Assembly reason the custom of the General passage important defer of hundreds of bills until very session, last hours of its is inconceivable that greater burden can cast the Governor than to many to consider period forced so Acts in short adjournment Assembly, time between the usu- ally April, laws, first week of and June when all *8 except laws, emergency must become effective.
However, upon validity depend this Act not does length of time afforded the Governor for its consider- ation, it must but be determined settled rules of law. recognized
Since court public this has the fact that the given welfare demands ample op- the Governor be portunity, adjournment after Assembly, of the Acts, consideration of signed and has held valid Acts adjournment after Assembly v. Somer- [Lankford set County Comrs., 105, 1017, 412, 73 Md. 20 A. 22 A. 11 491], L. question R. A. will not further dis- cussed. Nor is necessity there in this dis- case to question cuss the Act officially when an is signature; Governor for his con- whether the must be time within which an Act stitutional limit expired. presentation Those signed official after only question case. The questions are not raised this an objection to presented by the Act is whether this, effect, take Act, signed to the date fixed after question decided exact never .has been valid. That court, have decided very cases elsewhere few this juris- of other question. A number of decisions exact cited, none of them does but have been dictions with those in appear are identical the facts case. 16, 2, Constitution, expressly confers Art. Sec.
The designate Assembly in an General effect; Strange Levy, 134 shall take Act the date it 55, Baughman, 645, Bevard v. power that pursuance of that 71, A. 40. It was 1,May Assembly expressly date of fixed the the General 1941, become effective. for this Act held an Act support of their contention that
In
signed by
though
the Executive
valid, even
it was
cite,
appellants
effective
until after
its
date*
upon,
Board
Education v.
strongly rely
cases of
City
34; McLaughlin v.
Morgan,
147 N. E.
316 Ill.
Newark,
and Lemaire v.
57 N. J. L.
A.
were
Crockett, 116
It was part but the effective date of an Act is not a part, it if reason even it be considered a if leaving invalid, separable, the re- inoperative, it is Citing operative. mainder Wheelon of the Act valid and Board, D. 43 S. Dakota Land v. South Settlement 1145, 1147, 14 N. W. A. L. R. and 59 C. J. 1147. only But those state authorities that when an Act states go immediately, go it tois into effect means is to signed by Maryland into when effect the Governor. The 642, 645, cited, case Ulman v. 113 A. that, validity part held “the statute one validity part, of another relates to conditions statute, they passage exist at the time of brought subsequent not to about those events.” dealing
In that case the court was effect of the Eighteenth Amendment on a license Act Baltimore City. Mattfeldt,
In Painter Md. Co., County Bridge Somerset Comrs. v. Pocomoke 1, 71 16 Ann. v. Balti- Md. A. Cas. and State Commissioners, County more held although parts may valid of a statute be enforced parts be invalid. in none of those cases other But n point here considered. The court exact raised considering validity by the was not of an Act Assembly specifically Governor after fixed the time for it to become effective.
336 point provision
Another raised is that the the for go 1941, disregarded, Act May 1, may into effect on be 1, 1941, it be in perhaps force as of June Again May 1, case, supra, the Lemaire and State Sup’rs, v. Board 64 Miss. 1 relied So. were of upon. cases, the But Acts under consideration in those stated, provided they as before should effective become signed, legislative when and the the body intent of only definitely existence from that time. That was' Here, not specific the intent the case now before us. fixed, date was which did relate to the time the signed, clearly beginning but of the license year, the it intent that should be before Assembly logical particular that date. The had a declaring operative reason for the Act should become day year. Drug first of the license Read and Chemi- Claypoole, supra. cal v.Co. legislative body
When expressly that an declares date, Act shall take effect on a certain and reasonable presumption it is that it to oh intended take effect particular date, and on no other. In this case properly cannot be said of intention Assembly operation Act, reason, any postponed year, should be for a full or for one month beginning year. after the license That would be appellants if either result contention of the be ac- cepted, McLaughlin, and the rule as stated in the Le- Morgan cases, supra, applied maire and in this case. applied case,, must That rule this because Assembly, would defeat the clear intention of General that, courts, merely purpose correcting for the legislative defect, some must not do. reason withholding approval
Another of this is that Executive no constitutional to sub stitute, by means, any a different date for an Act to effect, specified take other than Assembly. Roney, State v. 82 486, 487, Ohio St. 92 N. E. 19 J., p. Ann. Cos. p. 1140; C. L., note 25 R. C. p. Any attempt Sec. 142. to do so would be a clear Eight Maryland violation of Article Declaration Rights, Legislative, “that Executive and Judicial government ought powers separate to be forever other; person exercising distinct from each and no departments functions one of said shall assume or dis- charge duties other.” Parkinson v. 522; Strange Levy,
Md.
74 Am. Dec.
The controversy view of the in this case is correctly by below, judge stated opinion the learned in his on the demurrer. Ne said:
“If, Attorney contends, as the General now the Gov- approval valid, though ernor’s of this bill is affixed twenty-six days after the declared it should go effect, granted into then it must be that the Governor power pro has expressed legis- to defeat clearly tanto the intent; legislative quasi function, lative to assume a inject alien, in effect to an material and unwanted amend- ment between the covers of the to wit: the Gov- date, 26th, supersedes May ernor’s and stands in lieu legislative of May choice of 1st. If the Governor powers has such hybrid; Act as now stands is an legislative part is in part a and in product; an executive represents compromise legislative a between wills, agreement executive instead aof clean-cut or dis- agreement. impossible agree
“It is for the court to that such can law. For how can it be said in the case of this (not appropriation embracing items), an bill bill distinct that is within the constitutional of the Governor all, any means at all, at reason kill to or- alter provision approving in effect one of the bill while balance; since must the bill be dealt with aas whole approval? veto or repeat, approval
“To May the Governor’s 26th has (which ought the same effect to be the of measure adopted in an amendment goods), as and insert in lieu thereof the 'word ‘first’ out strike ‘twenty-six.’ hold under can the court such How words legislative trespass upon field of facts state occurred, 8 of the Declaration of Article' has Rights not been violated?” Chapter
Therefore, we hold that Assembly Maryland invalid is not General legislation, because discriminatory invalid but prior May the Governor it was opinion Reargument, J., delivered the On Marbury, the,Court: by operators auto- case was filed in this The bill prevent prosecution for fail- vending machines matic Chapter 209 required by Acts licenses to obtain ure contended this Act Assembly of 1941. It was' reasons: for two was void illegal arbitrary
(1) discriminations. created signed by (2) properly Governor. It was never rea- held Act void for the second below court *12 injunction only issue. From son ordered an appeal. first case on It was heard decree the came here (cid:127) term, April unanimous 1942. This was in the court exercise that the attacked was a valid in its view legislative subject power, attack and not successful question, ground alleged. the the first On-the second holding divided, majority the time at court was signed by properly not Execu- the the Act had been reargument request appellants, the a tive. At again granted, was heard the current case question on the alone. term second point question made This raises the signed 1, May by effective not its terms on time, claimed, May it until at which is the Gov- signature, longer power ernor had no to affix his by doing law, so it effective could make from a.valid 1, 1941, May either May 1941. from law, put necessary To effect it into a valid Legislature bill; pass first instance for the to have State; pre sealed with the Great Seal of and to sent it duty to the Governor. The of the Governor does begin presented. until is so Hamilton v. presented Governor, Md. 14. After it has been to the ways there are three in which bill such a become (1) by being by law: Governor; (2) by be ing passed veto; (3) by over his to return his failure days receipt the bill within six after its him unless Assembly adjourned the General thereby pre Vandiver, vented its return. Warfield Harrington, 60 A. Nowell us, In the case before ad had
journed presented Governor, before bill was and, therefore, provisions Constitution, under the II, only signa Art. Sec. could become law ture of the Governor. years following approval immediately
In the generally supposed the Constitution of it was presented a bill could not be to the Governor after the adjourned. power had The veto was a new departure State, having given in this been to the Execu- for the first Proprietary time in 1867. The been had tive given power (Charter to initiate laws the Charter. Maryland, VII.) Maryland When the free-men of first met, they themselves, started to initiate laws and the Pro- prietary disapproved at once body them and just promptly of his own which laws the free-men disapproved. posi- Proprietary receded from his standing Charter, wording tion of on the and fre- quently exercised it. This veto was the occasion ,of Burgesses bitter between the House of controversies province Proprietary and the and the Governors of the *13 appointed by perhaps him. It contro- was with these gave in the versies mind the of 1776 Convention powers newly Governor of the formed State no of veto. eighty-one years the This continued until situation present adopted. appears It from the was Constitution giving wording adopted the veto of the section power, power had balance of and the the shifted Legislative Department powerful the more than ex- was judicial. power veto to a curb ecutive or was on it. discussing it, of the members Convention
In
one
prevent
to
to
the
the
was
be conferred
said that
legislation
session,
deferring
until the
all
heel of the
of
compel
pass
the laws
that it would
present
Perlman’s
to the
time.
and to
them
Governor
1867, page
Debates Md. Constitutional Convention
of
of
pre
must
member
188. The view of this
bills
adjournment
before
of
sented to
Governor
Supreme
by the
taken
Court
was
view
respect
provisions
Federal
the veto
of
Consti
with
by the courts in other
held
tution.
It has also been
provisions
respect
of
Consti
to similar
their
States
State,
practice
apparently,
It
this
tutions.
was
Opinion
Judge
Dissenting
Robinson in
until 1880.
County, 73 Md.
v. Somerset
Lankford
1017,
341 immediately attacked in measure was controversial 31, adjourned on March had The courts. April 4, was presented on and bill the Governor question April 8. immediate was by The him on whether, and under the statute under the Constitution 1884, presented to after bill could be the Governor a adjourned. had The court divided reciting could, question, majority but the held that since, before, practice well such had as obtained passage of the Act of 1884. v. Somerset Lankford 1017, County, 20 22 A. A. decision That approved by case, has been this court in later Johnson Luers, lapse 129 99 Md. A. and after a fifty years, more than cannot and not should now be disturbed, validity brought of thousands of laws question. into respect of 1884 before was also the court with question
to the presented toas how soon an Act must be Governor, terms, and the court “But said: these practicable,’ ‘as soon thereafter as are of a relative and dependent character, ,, to be controlled more or less case, circumstances of no means furnish a definite and fixed rule.” County, v. Somerset Lankford 73 Md. 22 A. A. 412. In the later quoted, only case ques- above was the decision approved, tion clearly “prac- but indicated that ticable” practicable did not mean for the officials of the Legislature, practicable proper but for the consideration Luers, Johnson Governor. A. is, therefore, statutory 710. There no constitutional or time, passage, limit to the after within which a bill must practical question, .be to the Governor. It is a depending for its answer in each case on the circum- particular stances of that case. having duly passed, presented signed,
The Act
been
question
Eng-
the next
is when it takes effect. The old
common
lish
law rule was that
Acts
Parliament
took
day
effect on
the first
the session
they
at which
were
harsh, produced
exceptionally
rule was
passed. That
post
ex
passage
injustice,
permitted
great
facto
doing
some-
tried
person could
which a
laws under
rule
it. That
did
when he
crime
thing
which was
Illj
England by
statute 33rd Geo.
changed in
*15
course,
but,
statute
1793,
of
that
Chapter
passed in
passed
after
country
was
as it
in this
in force
is not
however,
rule,
general American
.Revolution.
pas-
their
on the date of
effect
take
that statutes
been
constitutional
some
sage
restricted
otherwise
unless
8th
Limitations,
Cooley on Constitutional
limitation.
State,
326;
14 Md.
1, page
Parkinson
Ed., Vol.
Bryan,
Judge
Concurring Opinion
522;
Am. Dec.
74
of
105, 122,
A.
County,
20
73 Md.
v. Somerset
Lankford
provision in our Constitu-
There
no
Had the intended this and similar Acts going must be before the in them dates fixed effect, into void, remedy otherwise be within had the power. its An amendment of Article 41 Section providing every containing specific bill date for going into effect should be to the Governor at *16 days requiring least six before such date would result in the Governor to act on such bills in time them to Legislature take effect when the desired. No such amend- Legislature ment fifty-eight has been made the in the years during which the law been on the statute Legislature books. It must be that assumed the did not intend there pre- should be difference in the time of us, sentation of Acts other such as that before and of Acts in which no date of effectiveneses is stated. We Legislature. cannot law amend the for the must find We light passed possi- the Act of 1941 was in the bility occur, which did intended May toit be effective on 1 or soon it thereafter as approved. Governor, The contention that signing May statute, the Act on amended the becomes clearly fallacious when it is that what he considered exactly passed, what Legislature passed knowledge might sign he by May be able construction,
Under all passed by rules of laws people through legislative representatives their bodies they clearly consti- violate some upheld unless
should be public policy. If fixed rule provision or some tutional question, if one con- under any doubt about there is upheld while another Act be under can struction the voided, adopted must which be the construction must be legislation. prin- valid These preserve the Act as will statutory are axiomatic and need ciples construction authority. no citation of growing same rule out of the further is a
There
part
statute
that where a
of a
principles,
holds
which
carry
yet
clearly
the remainder will
void and
be
unobjectionable part
legislative
will
purpose,
out the
331;
151, 61 Am. Dec.
Davis
7 Md.
v.
be enforced.
Mattfeldt,
Dechert,
Painter
Hagerstown
There is which this Act must be upheld. possible That consequence is the of a decision Secretary of the Senate of the Chief Clerk of Delegates the House prevent going can effect into by withholding Act presentation an its from the Gov- Legis- ernor until after the arrival of the date which the going lature has fixed in In its into effect. present instance, presented the bill not because protestants Governor desired to hear various give careful advisability pro- consideration to the of the posed entirely license. It was an laudable reason approved by well within rule the circumstances Chief Judge Boyd Luers, supra. in Johnson easy imagine might that bills be withheld for much reasons laudable, corrupt purpose. less or even with Bills can possibilities these also be mislaid. All of are opened improper door should to their not use. It is contemplated by not the Constitution or the statute any power given should be to the secretarial officials prac- which amounts to a —a tical veto of bills before the effective fixed dangerous dates. innovation, It would be a should legislative system. now into introduced our *18 1941, Chapter Act of therefore hold that the We May the date which effective on on became Governor, consequence by the and holding, court re- such the decree of the lower must be versed, the bill dismissed. reargument by appellee, motion for filed
On following court filed the memorandum: reargument by appellee This motion for filed is pass upon based court failure regulations Comptroller, construction by appellants, the Act both which are claimed complaint improper: does the amended bill of appear con- from record that these were matters below, appellees but the are entitled sidered court passed upon them before the bill dismissed. have is re-argument reasons, For these over- motion dismissing ruled, passed but the order heretofore herein complaint case re- the bill of will amended and the manded for further below. consideration reversed, re- Decree with costs. Case (cid:127) proceedings manded further
, memorandum accordance filed herein. J., part
Forsythe, de- took no in the consideration or reargument. cision of this case J., adopt J., Grason, dissent Collins, J., Forsythe., opinion in No. filed herein heretofore 41, April Term, reason for their dissent from as the Term, opinion by majority filed in No. October