Hammond v. Lancaster
| Decision Date | 09 February 1950 |
| Docket Number | 107. |
| Parties | HAMMOND, Atty. Gen. et al. v. LANCASTER et al. |
| Court | Maryland Court of Appeals |
Hall Hammond, Atty. Gen., J. Edgar Harvey, Deputy Atty Gen., and Frank B. Ober, Baltimore (Thomas N Biddison, City Solicitor, Leroy W. Preston, Asst. City Solicitor, and Hugo A. Ricciuti, Asst. City Solicitor Baltimore, on the brief), for appellants.
I. Duke Avnet and Linwood G. Koger, Baltimore (Mitchell A. Dubow Donald G. Murray, Robert P. McGuinn and Bernard Rosen, Baltimore, on the brief), for appellees.
Frank B. Ober, Baltimore, for John W. Avirett, 2d, et al., former members of the Commission Subversive Activities.
William F. McDonald, Baltimore, and James A. Perrott, Baltimore, on the brief, amici curiae, for Maryland Committee Against Unamerican Activities.
Harold Buchman, Baltimore, on the brief, amici curiae for National Union of Marine Cooks and Stewards, CIO.
David Rein, Washington, D. C., Dallas F. Nicholas, Baltimore, and Robert J. Silberstein, Washington, D. C., on the brief, amici curiae for National Lawyers Guild.
Arnold H. Seixas, New York City, Thurgood Marshall, New York City, and Robert L. Carter, Washington, D. C., on the brief, amici curiae for National Association for Advancement of Colored People.
Jacob J. Edelman and Marshall A. Levin, Baltimore, on the brief, amici curiae for Baltimore Federation of Labor and Baltimore Teachers Union, Local 340.
Eugene M. Feinblatt, Donald N. Rothman, Baltimore, on the brief, amici curiae for Americans for Democratic Action.
Joseph I. Paper and Joseph Burke, Baltimore, on the brief, amici curiae for Md. Civil Liberties Committee, Inc.
Isador B. Terrell, Baltimore, on the brief, amicus curiae for American Assoc. of Social Workers, Md. Chapter.
William H. Murphy, Baltimore, on the brief, amicus curiae for National Council of the Arts, Sciences and Professions.
Lee Pressman, New York City, on the brief, amicus curiae for International Workers Order.
Harold Buchman, Baltimore, James Stewart Martin, Annapolis, and John J. Abt, New York City, on the brief, amici curiae for Progressive Party of Maryland.
Nathan Witt, New York City, amicus curiae for Food, Tobacco, etc. Workers Union, et al.
Hilary W. Gans, Baltimore, on the brief, amicus curiae for John Hopkins University Chap., Amer. Assoc. University Professors.
David Scribner and Basil R. Pollitt, New York City, on the brief, amici curiae for United Electrical, Radio & Machine Workers of America.
Maurice Braverman, Baltimore, on the brief, amicus curiae for Communist Party of Maryland.
Ely Albert Castleman, Baltimore, on the brief, amicus curiae for Interdenominational Ministerial Alliance.
Before MARBURY, C. J., and DELAPLAINE, COLLINS, GARSON, HENDERSON, and MARKELL, JJ.
This appeal is from an order of the Chancellor, in the Circuit Court no. 2 of Baltimore City, overruling a demurrer to a bill of complaint which challenged the constitutionality of chapter 86, known as the 'Subversive Activities Act of 1949,' and chapter 310 of the Acts of 1949. The suit was instituted on April 27, 1949, by 6 college professors or teachers, a salesman, 2 physicians and a sculptor. All are alleged to be taxpayers and all but one citizens and registered voters of the State of Maryland. The proceeding is a class suit brought by the complainants on behalf of themselves and all others similarly situated. The defendants are the Attorney General of Maryland, the Comptroller of the Treasury, the State Treasurer, the State's Attorney of Baltimore City, the Superintendent of the State Police, the Police Commissioner of Baltimore City, the members of the Grand Jury of Baltimore City, the State Employment Commissioner, the President of the City Service Commission of Baltimore, the members of the State Department of Education, the State Superintendent of Schools, the Board of School Commissioners for Baltimore City and the Superintendent of Public Instruction for Baltimore City. All of these defendants are alleged to have duties to perform under the Act. The prayers of the bill are that the Act be declared unconstitutional, that the defendants be enjoined from enforcing any of its provisions, and especially that the Attorney General be enjoined from appointing a special assistant, provided for therein, that the treasury officials be enjoined from making any funds available for enforcement or administration of the Act, and for other or further relief.
Subsequently, by leave of court, additional paragraphs were added to the bill alleging that on May 31, 1949, a petition for referendum was filed with the Secretary of State containing more than 5000 signatures of Maryland voters, more than 2500 of which were from the counties and more than 2500 from Baltimore City; that on June 15, 1949, additional signatures of voters were filed, making a sum total of 13,063, of which 6,057 were from the counties and 7,006 from Baltimore City.
Chapter 86 added a new article to the Code under the title 'Sedition and Subversive Activities.' Its general nature may be briefly indicated. After a number of recitals condemning the 'World Communist movement' and 'other subversive groups', without naming them, the text of the Act first undertakes to define the terms 'subversive organization', 'foreign subversive organization' and 'subversive person'. Under the subtitle 'Sedition', it then undertakes to declare that certain acts, or the incitement to commit certain acts, designed to overthrow the government 'by revolution, force or violence', shall be felonies, and to provide penalties and disqualifications upon conviction thereof. Certain duties of enforcement are imposed upon the Attorney General, who is directed to appoint a Special Assistant Attorney General 'in charge of subversive activities'. Under the subtitle 'Loyalty', the Act undertakes to require a loyalty oath (or statement subject to the penalties of perjury) of all persons, except 'laborers', employed by the State or any political subdivision thereof, and all applicants for employment, and candidates for public office. There are also provisions for discharge of persons found to be 'subversive', subject to a right of court review, and a provision that each private institution of learning, as condition to receiving state aid, shall file a report stating what procedures it has adopted to determine whether it has reasonable grounds to believe that any 'subversive persons' are in its employ. The Act contains a broad severability clause. It was approved by the Governor on March 31, 1949, to become effective June 1, 1949, as provided in Section 3 of the Act. Chapter 310, approved April 22, 1949, did not repeal and reenact Chapter 86, but repealed and reenacted Section 3, with amendments, so as to declare the Act to be an emergency measure, to take effect from the date of its passage.
The Chancellor decided that the Act is unconstitutional on a number of grounds, that may be summarized as follows: A. The Emergency Act, chapter 310 is unconstitutional, (a) because the declaration of emergency in a separate and subsequent amendment is not in accordance with the provisions of the Maryland Constitution, and (b) it is an ex post facto law. He disagreed with the complainants' contentions that it created an office and changed the duties of an existing office, which is prohibited by the Maryland Constitution in an emergency measure. He also disagreed with the contentions that the Act deprived the voters of their constitutional right to stay the operation of the Act pending a referendum vote, and that the declaration of an emergency was not made for a valid legislative purpose. B. The criminal provisions of Chapter 86, under the title 'Sedition', violate (1) the basic freedoms guaranteed by the First and Fourteenth Amendments to the Federal Constitution, (2) the prohibitions against Bills of Attainder, and (3) the Fourteenth Amendment in that they are too vague and indefinite to satisfy due process. C. The provisions of Chapter 86, under the title 'Loyalty', requiring oaths, or statements in the nature of oaths, by candidates for public office, violate Article 37 of the Maryland Declaration of Rights.
We are faced at the outset with the question whether these complainants, or any of them, have a standing to maintain the suit. This is not a mere matter of procedure, but involves a consideration of some of the fundamental concepts of our constitutional law. The American doctrine of judicial review may be considered as a correlative to the doctrine of the separation of powers, and must always be exercised with due regard to the legislative prerogative. There are a number of subordinate rules that tend to limit the scope of review, among the most important of which are the presumption of constitutionality and the rule that courts will not decide moot or abstract questions, or, in the absence of constitutional mandate, render advisory opinions. See DeTocqueville, Democracy in America, Part First, Chapter VI; Bryce, American Commonwealth, (3d ed.) Chapter XXIII, pp. 256-259.
In State v Shields, 49 Md. 301, 305, this court, speaking through Judge Miller, said: 'The Legislature has never undertaken, even if it would have the power to do so, to confer jurisdiction and require the Court of Appeals to express opinions upon mere moot questions or abstract propositions.' The Supreme Court has from its inception taken a similar position. Case of Hayburn's, 2 Dall. 409, 1 L.Ed. 436. In Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725, the court granted certiorari in a case brought in the Alabama State court against enforcement officers, for a declaratory judgment...
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