Dutton v. Tawes

• Citation: 225 Md. 484,171 A.2d 688
• Decision Date: 12 June 1961
• Docket Number: No. 1,S,1
• Parties: James W. DUTTON et al. v. J. Millard TAWES, in his Official Capacity as Governor of the State of Maryland. ept. Term 1961.
• Court: Court of Appeals of Maryland

Page 484

225 Md. 484

171 A.2d 688

James W. DUTTON et al. v. J. Millard TAWES, in his Official Capacity as Governor of

the State of Maryland.

No. 1, Sept. Term 1961.

Court of Appeals of Maryland.

June 12, 1961.

Hyman A. Pressman, Baltimore, for appellants.

Joseph S. Kaufman, Deputy Atty. Gen., and James O'C. Gentry, Asst. Atty. Gen., for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and MARBURY, JJ.

Reargued before BRUNE, C. J., HENDERSON, HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ., and JAMES MacGILL, J., specially assigned.

HAMMOND, Judge.

Appellants are Southern Maryland citizens and taxpayers who earn their livelihood there by fishing, crabbing and oystering in the Potomac River. On their own behalf and on behalf of all others similarly situated who might desire to make themselves parties, they filed a bill in the Circuit Court of Baltimore City to enjoin the Governor from proclaiming Chapter 269 of the Acts of 1959, a compact with tht State of Virginia relating to the Potomac River, to have been adopted by the people of Maryland as a law of the State in a referendum vote which had been taken at the election of November 8, 1960. The bill also prayed declarations (1) that the text of Ch. 269 had not been published prior to the election as required by Sec. 5 of Art. XVI of the Maryland Constitution and Code (1957), Art. 33, Sec. 170, and therefore the vote on the proposed law was void, and (2) that the Act is unconstitutional because (a) it authorizes a joint commission of Marylanders and Virginians to regulate and police the conduct of Marylanders on the Maryland owned Potomac River; (b) it empowers Virginia courts to try Maryland citizens for the commission of crimes on the Potomac River; (c) it delegates to the Joint Commission the legislative power to reduce punishment for criminal offenses on the Potomac River; (d) it usurps the power of future legislatures by binding them to make annual appropriations of not less than $50,000 for the Joint Commission; (e) it abdicates the Legislature's power to pass laws relating to fish, crabs, oysters and clams in the Potomac River after December 1, 1958; and (f) the title is deficient.

Judge Sodaro held the Act to have been duly approved by the voters and to be constitutional.

The origin and history of the compact of 1785 between Maryland and Virginia as to the Potomac River--which provided inter alia, that 'the right of fishing in the river shall be common to, and equally enjoyed by, the citizens of both states * * *'--and the definitive fixing of the low water mark on the south shore of the river as the boundary between Maryland and Virginia by the so-called Black-Jenkins Award of 1878 (with the approval of Congress, in 1879), all are set out in the opinion in Barnes v. State, 186 Md. 287, 295, 47 A.2d 50. The two states long have had difficulties over the matters of fishing and oystering in the River.

These disagreements resulted in the unilateral abrogation of the compact of 1785 by the General Assembly of Maryland by the passage of Ch. 766 of the Acts of 1957. Virginia soon thereafter filed a complaint in the Supreme Court of the United States seeking to have the compact declared forever binding on Maryland and Virginia. The Court referred the case to Mr. Justice Stanley Reed, retired, as Special Master and a stay was ordered to permit the reaching of an agreement. The Governors of the two states appointed commissioners to resolve the differences, and the proposed compact of 1958 resulted from their efforts. The General Assembly of Virginia approved it, as did the General Assembly of Maryland by the passage of Ch. 269 of the Acts of 1959.

The Act was forced to referendum in Maryland by the signatures of almost 13,000 voters under the provisions of Art. XVI of the Maryland Constitution. At the election of November 8, 1960, some 449,347 voters recorded their preferences as to the Act, 244,510 citizens voting for its adoption and 204,837 against.

The manner in which the text of Ch. 269 of the Acts of 1959 was published is the primary target of the appellants.

The Maryland Constitution, by Art. XVI, Sec. 5(a), provides that 'The General Assembly shall provide for furnishing the voters of the State the text of all measures to be voted upon by the people; provided, that until otherwise provided by law the same shall be published in the manner prescribed by Article XIV of the Constitution for the publication of proposed Constitutional Amendments.' Article XIV requires publication before the election 'in at least two newspapers in each County, where so many may be published' and in three newspapers in Baltimore City 'once a week for four weeks.' By Chapter 335 of the Acts of 1941 (codified as Sec. 208 of Art. 33 of the Code of 1951) the Legislature specified that the text of a referred law should be furnished the voters by publication 'once in some daily newspaper of general circulation throughout the State.' This continued to be the law until the passage of Ch. 739, Sec. 170, of the Acts of 1957 (codified as Art. 33, Sec. 170), which requires publication by 'at least by one insertion in two or more newspapers within the several counties of the State and in all the daily newspapers published in Baltimore City which will publish the same at the current rate of commercial advertising.'

Because the employees of the Secretary of State's office continued to publish according to the 1941 law, instead of complying with the revisions of the Acts of 1957, the text of Ch. 269, the proposed compact, was published but once, in one newspaper, the Baltimore Sun, a paper which has a general circulation throughout the State, although of late years in many counties its readers are few in comparison to the total population. The texts of proposed constitutional amendments which were to be voted on at the same election of 1960 were published in fifty-three County papers and in three Baltimore City papers. It is not contended that the mistake in the publication of the text of the compact was other than unintentional.

The appellants argue that the constitutional and statutory provisions are mandatory and, therefore, the failure to follow them strictly invalidates the favorable vote on the compact. The appellee replies that after an election has been held, the courts treat such requirements as directory, that they were substantially complied with, and the failure to follow them strictly was not shown to have affected the results of the vote.

In reaching a decision, we treat the implementation by Code (1957), Art. 33, Sec. 170, of the constitutional mandate that the electorate be 'furnished' the text of referred laws as establishing a statutory, rather than a constitutional, method of procedure. There are many ways in which the constitutional imperative that the content of referred laws be made available to the voters could be gratified. One is the way the Legislature deemed adequate from 1941 to 1957. If the election now challenged had been held in the first five months of 1957 no serious objection could have been made that the text of the compact had not been properly and adequately 'furnished' the electorate. The 1957 Act substituted one statutory method for another. We test the adequacy of compliance with the 1957 Act by the standards the Courts have applied to statutes specifying the manner and extent of notice of elections or of the publication of issues to be voted on in elections.

The Maryland cases, like those elsewhere, have held that there is a clearly recognized difference between the effect given to modal provisions of the election laws before election and the effect of the same provisions after election. Election officials of course should do what the law tells them to do and, before election, a court will require that they do their duty. Yet if the election has been held before court action is sought and it is not shown that the failure of the officials to follow the law has interfered with the full and fair expression of the will of the voters, that expressed choice will not be disturbed by the Courts. Wilkinson v. McGill, 192 Md. 387, 393, 64 A.2d 266; Graham v. Wellington, 121 Md. 656, 661, 89 A. 232; Seyboldt v. Town of Mt. Ranier, 130 Md. 69, 73, 99 A. 960; Carr v. Town of Hyattsville, 115 Md. 545, 549-550, 81 A. 8. The latest statement of the rule in this Court was in Lexington Park Volunteer Fire Department v. Robidoux, 218 Md. 195, 200, 146 A.2d 184, 186: 'It is generally held that an election which has been honestly and fairly conducted will not be vitiated by mere failure to follow the statute precisely unless the result is shown to have been affected or the statute expressly states that such failure renders the election void. After the election is held, statutes giving direction as to the mode and manner of conducting it are generally construed as directory, unless the deviation from the prescribed forms of the law had so vital an influence as probably to have prevented a free and full expression of the popular will. The courts reason that it would be unjustifiable to defeat the expressed will of the electorate if the irregularity did not frustrate or tend to prevent a free expression of the electors' intention or otherwise mislead them.'

Appellants rely primarily on Baltimore and Drum Point Railroad Company v. Pumphrey, 74 Md. 86, 21 A. 559; County Commissioners of Montgomery County v. Henderson, 122 Md. 533, 89 A. 858; and Graf v. Hiser, 144 Md. 418, 125 A. 151, as holding the modal requirements of the election laws mandatory. The cases are distinguishable. In the County Commissioners case aid of the Court was sought before election and in Graf v. Hiser the result of the election was deemed to have been affected by the irregularity.

Although two elections were involved in the Drum Point case, the decision turned on the interpretation of Art. III, Sec. 54, of the Maryland Constitution, which provides that no county...