Hammond v. Lancaster

• Decision Date: 09 February 1950
• Docket Number: 107,136.
• Citation: Hammond v. Lancaster, 194 Md. 462, 71 A.2d 483 (Md. 1950)
• Parties: HAMMOND, Atty. Gen., et al. v. LANCASTER et al. HAMMOND et al. v. FRANKFELD et al.
• Court: Maryland Court of Appeals

71 A.2d 483

194 Md. 462

HAMMOND, Atty. Gen., et al. v. LANCASTER et al.

HAMMOND et al. v. FRANKFELD et al.

Nos. 107, 136.

Court of Appeals of Maryland.

February 9, 1950

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge (concurring).

I concur in the result in each of these cases, but the reason why I do not simply join with the majority of the Court in approving the opinions should, in all fairness, be stated.

This Court, in many previous cases, has passed upon all sorts of questions in taxpayers suits. We have been quite liberal in this respect. See opinion of Chief Judge Bond in Baltimore Retail, etc Ass'n v. Board of Liquor License Commissioners, 171 Md 426, 189 A. 209, 109 A.L.R. 1253. I shall not take the space to enumerate or discuss these cases, early and late, and the different questions decided, sometimes by holding them within the the rights of taxpayers to raise, and sometimes by merely passing or ignoring the point. Many of them are listed in Travers v. Fogarty, 187 Md. 348, 50 A.2d 238, and in Weinberg v. Kracke, 189 Md. 275, 55 A.2d 797. A group of the earlier ones are collected in Hillman v. Stockett, 183 Md. 641, 645, 39 A.2d 803. See in particular, Levering v. Park Commissioners, 134 Md. 48, 59, 106 A. 176, 4 A.L.R. 374. Some are mandamus cases, others bills in equity, but the form is immaterial.

It is true that the Supreme Court, in the cases cited in the majority opinion, has discussed the inadvisability of passing upon certain classes of cases, but we are not bound by these decisions as we are by the decisions of the Supreme Court on matters involving the Constitution of the United States. We determine our own procedures, and what we consider a sufficient right in a complainant to bring a suit.

I agree with the majority of the Court in their conclusion as to the validity of the Emergency Act, Chapter 310, and also with their conclusion that Chapter 86 could have been enacted as an emergency law, and became an emergency law after its amendment by Chapter 310. I do not think, however, that we should stop after deciding these points. These cases were very fully argued on all points, and many briefs were filed by interested parties as friends of the Court. Some of the other questions raised, it seems to me, should have been passed upon, and I think sufficient interest in these other questions is shown by the complainants in these cases.

I agree that we should not go to the extent of construing the several penal sections of the statute, and deciding possible objections made to them. These should await prosecutions where the individuals or organizations accused can be heard. We should not, in an advance opinion, foreclose any of the rights of such accused persons. Even those charged with crime cannot, in general, ask an equity court to enjoin criminal prosecutions. All questions involving the penal provisions of Chapter 86 can be raised in the criminal courts in actual cases on trial there, and they should be left to such courts when and if they are before them in appropriate proceedings.

The Chancellor held that the affidavit required by Section 15 of Chapter 86 is an additional oath of office, and is contrary to Article 37 of the Maryland Declaration of Rights. Section 15 provides that no person can become a candidate for election to public office unless he or she shall file with the certificate of nomination, required by Article 33 of the Annotated Code, an affidavit that he or she is not a subversive person. There is a further provision that no certificate of nomination shall be received by the election officials unless accompanied by such affidavit, and that there shall not be entered upon any ballot or voting machine in any election the name of any person who fails to make such an affidavit.

The people of the State in November, 1948, approved a constitutional amendment, now Article 15, Section 11 which reads 'No person who is a member of an organization that advocates the overthrow of the Government of the United States or of the State of Maryland through force or violence shall be eligible to hold any office, be it elective or appointive, or any other position of profit or trust in the Government of or in the administration of the business of this State or of any county, municipality or other political subdivision of this State.'

The requirement of Section 15 is a provident enactment to implement the constitutional provision, and to prevent deception of the voters by keeping from them the names of those who could not serve if elected. It has the same general purpose as the sworn statements required by Article 33, Section 53. That purpose is to assure the voters that those whose names appear on the ballots or in the voting machines are, at least, prima facie qualified for the offices they seek. It is a method by which the Legislature is executing what has been held to be its inherent power to safeguard elections. Kenneweg v. Allegany County Commissioners, 102 Md. 119, 62 A. 249; Munsell v. Hennegan, 182 Md. 15, 31 A.2d 640, 146 A.L.R. 660; Hennegan v. Geartner, 186 Md. 551, 47 A.2d 393.

To say that such a requirement is an additional oath of office in violation of Article 37 of the Maryland Declaration of Rights is to ignore both its purpose and its actual wording. It is not an oath to be taken by those who are elected to office. It is an affidavit required to be made by those who wish their names to go before the voters. If they cannot make the affidavit, they cannot take the prescribed Constitutional oath, Article 1, Section 6, and what the Legislature has done is to provide means of finding out in advance, from persons who are not yet elected to office, whether they can take that oath and hold office under Article 15, Section 11. The fact that some of those whose names go upon the ballots will be elected, does not make an affidavit, required of them before they have even taken the first step towards holding office, an additional 'oath of office'.

Since Article 15, Section 11 of the Constitution applies not only to elective but also to appointive offices, the Legislature also considered it advisable to require a written statement, subject to the penalties of perjury, from each appointed employee. Sec. 13. This statement was to be to the effect that he or she was not a subversive person as defined in the statute. Among the complainants in the Lancaster case is Irene Diggs, who is a state employee, as a teacher in Morgan College. Although she does not say she will not or cannot make the statement required, the mere fact of her joining in the bill of complaint indicates that she does not think she ought to be required to make it, or possibly that she will lose her position by not making it. Under these circumstances, and in spite of the Supreme Court decision in the Hatch Act case, referred to in the majority opinion, it would seem that she has enough interest to justify us in answering her question. We think she, and other people similarly situated, can be lawfully required to make such a statement. It is an arrogant assumption that a government cannot protect itself against the infiltration of those who desire to destroy it by force.

It is also provided by the statute, Sec. 11, that the appointing or employing officials of the State are permitted to decline to appoint or employ prospective employees if it is found under procedures to be established that there are reasonable grounds to believe such prospective employees are subversive persons. No one has a right to be a public employee. McAuliffe v. Mayor, 155 Mass. 516, 29 N.E. 517, (Justice Holmes). No fundamental rights are destroyed by not employing or by not keeping in public employment those who cannot or will not satisfy the appointing authority that they are not subversive persons. The citizens and taxpayers of the State, through their representatives, are entitled to decide who shall work for them and who shall teach in those schools and colleges which are State institutions supported by State funds.

It would seem, also that in the Frankfeld case, the complainants are entitled to know whether that act is a bill of attainder against them. Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356; Anderson v. Baker, 23 Md. 531. If it is they have a right to have part of it, at least, stricken down. I do not think it is, and I think we should say so.

There is no attempt in Chapter 86 to name any person or organization as coming within its criminal provisions. There is no list of subversive organizations. On the contrary, every protection is afforded every person or organization accused under its provisions. The statement in the preamble that the 'Communist Movement' presents a clear and present danger to the government is made only to show a reason for the enactment. It in no way prevents a fair and judicial trial for any one, nor does it condemn unheard the Communist Party or any of those belonging to that party. And the provision in Section 9 that the Grand Jury shall be charged to inquire into the purposes, activities and any other matters 'affecting Communism or any related or other subversive organizations', and the similar provision in Section 6, are merely directions for investigations, and could not be construed to justify the conviction of a Communist organization, without proof that it is, in fact subversive.

There are two schools of thought for the proper way to handle subversive doctrines and activities. One is that people should be allowed freely to express their opinions, even if they go so far as to advocate the overthrow of the government by force. The other school of thought is that freedom of speech guaranteed by the Constitution is not a guarantee to those who...