Brawner v. Curran

• Decision Date: 18 July 1922
• Docket Number: 66.
• Citation: 119 A. 250,141 Md. 586
• Parties: BRAWNER v. CURRAN et al., Sup'rs of Elections.
• Court: Maryland Court of Appeals

119 A. 250

141 Md. 586

BRAWNER v. CURRAN et al., Sup'rs of Elections.

No. 66.

Court of Appeals of Maryland

July 18, 1922

Appeal from Baltimore City Court, Charles F. Stein, Judge.

Petition by Harry O. Brawner for writ of mandamus, directed against William Curran and others, constituting the Supervisors of Elections of the City of Baltimore. From an order overruling a demurrer to the answer, petitioner appeals. Reversed and remanded, with directions to issue writ.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, ADKINS, and OFFUTT, JJ.

Henry H. Dinneen and Isaac Lobe Straus, both of Baltimore (Harry M Benzinger, of Baltimore, on the brief), for appellant.

A. W W. Woodcock, Asst. Atty. Gen., and Alexander Armstrong, Atty Gen. (Allan H. Fisher, Asst. Atty. Gen., on the brief), for appellees.

OFFUTT J.

Harry O. Brawner, a citizen, resident, and taxpayer of Baltimore city, filed in the Baltimore city court a petition against the supervisors of election of Baltimore city, in which he asked that a writ of mandamus be issued out of that court, commanding the respondents to refrain from printing on the official ballots to be used at the general election to be held in that city on November 7, 1922, the proposition of the approval or disapproval of chapter 448 of the Acts of 1922, commonly called the "Soldiers' Bonus Act." That relief was asked on the ground that the act violated provisions of the state and federal Constitutions, and was therefore void. The respondents in their answer to that petition denied that the act was unconstitutional, but admitted that they intended to print upon the official ballots to be used at the election in November, 1922, the proposition of its approval or disapproval, and to do all things provided by it in order to effect its purpose. The court overruled a demurrer filed by the petitioner to that answer, and dismissed his petition, and from that order this appeal was taken.

The only question presented for the consideration of this court therefore is the constitutionality vel non of chapter 448 of the Acts of 1922. The purpose of that act is declared in the first section thereof in the following language:

"That in order to promote the spirit of patriotism and loyalty, in testimony of the gratitude of the commonwealth and in recognition of the services of certain residents of Maryland to the full extent of the demand made upon them and their opportunity in the army and navy of the United States during the war with Germany, the payments hereinafter specified are hereby authorized;"

and its subject as stated in its title is "to provide suitable recognition for those residents of Maryland who served in the army and navy of the United States during the war with Germany, to authorize the creation of a state debt not to exceed $9,000,000 for this purpose and to provide for the levying of taxes for paying interest on said debt and for the redemption of said debt and providing for a referendum thereon." It in effect provides for the payment to each resident of Maryland mustered into the federal service, and who reported for active duty as a commissioned officer, enlisted man, field clerk, or nurse in the army or navy of the United States during the war with Germany, and served therein for the period stated in the act, $10 a month for each month of service, and providing in certain cases for the payment of $30 per month to any person entitled to compensation under the act who may desire to continue his education in any of the educational institutions of the state whilst in regular attendance as a student at such institution, the total payments not to exceed $1,080. It creates a military service recognition board to carry out its provisions, and provides the machinery by which such compensation may be asked and granted, and it also provides for the issuance and sale by the state of bonds to the amount of $9,000,000 to meet the expenditures authorized by the act and for levying taxes to pay such bonds and the interest thereon. Finally it provides that it shall be at the general election in 1922 submitted to the qualified voters of the state for their approval or rejection.

It is contended that the act is void because it violates the following provisions of the Maryland Constitution; that is to say: Article 14, § 1, which prescribes the manner of amending the Constitution; article 3, § 34, which limits the extensions of the state's credit; article 3, § 59, which prohibits the establishment of any general pension system; article 3, § 29, which requires that the subject of every act shall be described in its title; section 40, article 3, which forbids the taking of private property for any other than a public purpose, and then only upon the payment of "due" compensation; article 3, § 34, which requires the discharge of all debts of the state within 15 years from "the time of contracting" them. It is also charged that it violates certain provisions of the federal Constitution, in that it confers special privileges upon a limited class of persons at the petitioner's expense, and deprives him of his property without due process of law, and the last objection is that the Constitution of Maryland constitutes "a contract between said state of Maryland and the petitioner which the act violated."

Of these objections, all but three are free from difficulty, and may be disposed of with brief comment. Those three, however, are of a much more substantial and serious character, and demand the most careful scrutiny and the most scrupulous consideration in justice both to the state and its people and to the beneficiaries of the act to whom the state and its people, in common with the other states of the Union and the people therefore, are so deeply indebted.

Referendum.

The first question which we will consider is not apparently referable to any of the objections named, but is clearly made in the appellant's brief, and is assumed by the appellee to be raised by paragraph 10A of the appellant's petition, and it is based upon the effect which those provisions of article 3 of the Constitution of Maryland relating to the passage of legislation in that state have upon that provision of the Soldiers' Bonus Act, which submits it for approval or rejection to the qualified voters of the state. That proposition the appellant states in these words:

"The General Assembly of Maryland is utterly wanting in authority to make the validity of a public general statute dependent upon approval by a majority of the voters of the state under a referendum." That proposition has in various forms been a subject of judicial examination in the court of the several states for many years, and while at the outset it involved a political rather than a legal question, nevertheless because it has been passed upon so often by the appellate courts in so many of the states it has become by virtue of the rule of stare decisis essentially a legal question, and we can only consider its political aspect in so far as it will aid us in interpreting the meaning of the Constitutional provisions bearing upon the question in the light of the decisions of the courts of the several states which have dealt with the effect of similar provisions upon legislation affecting the state as a whole, which submitted to the people of the entire state the question as to whether it should or should not become effective. The question has never been before this court in the precise form in which it now occurs, but this court, in disposing of other cases involving some phase of the right which has been claimed by Legislatures of redelegating to the people the power of making laws, has necessarily established and stated principles which we must now regard as of paramount and controlling influence.

In dealing with the question we will exclude from consideration all cases involving only the right of a Legislature to refer to the people of a designated municipal or quasi municipal corporation or to the people of a specified and described community the question as to whether local legislation affecting only that locality shall become effective, because, while the power of the Legislature to refer local legislation affecting it alone to the people of such a corporation or of some political subdivision of the state, or of some defined locality, cannot be questioned in this state. (Levering v. Supervisors of Election, 137 Md. 287, 112 A. 301), and is sustained by the weight of authority elsewhere (12 C.J. 857, notes 92, 93), it is equally well settled that the reasons given in those decisions upon which they rest are not applicable to legislation affecting the whole state (12 C.J. 841; 6 R. C. L. p. 166).

The reason usually given in cases which support the right of the Legislature to refer local legislation to the people of the localities affected is the power which the Legislature, the lawmaking agency of the state, has over its "derivative creations" (Oberholtzer on Referendum in America, Edition 1911), and which is unlimited except by the state and federal Constitutions. That reason, however, has no application to a statute which affects, not a creation of the state, but the entire state and every part thereof.

It has been said that this distinction is arbitrary and illogical, and rests more upon political expediency than upon sound legal principles, nevertheless the final and complete answer to that position is that the question is no longer open, but has been finally settled by repeated decisions of this court and by a preponderance of authority elsewhere so great that we are constrained to accept it in connection with our own decisions as conclusive of the question.

Coming back to the main proposition, in our judgment, the Legislature had not the power to submit ...