Jackson v. Norris

• Decision Date: 08 December 1937
• Docket Number: 3,4.
• Parties: JACKSON et al. v. NORRIS. SAME v. DALY.
• Court: Maryland Court of Appeals

195 A. 576

JACKSON et al. v. NORRIS.

SAME v. DALY.

173 Md. 579

Nos. 3, 4.

Court of Appeals of Maryland

December 8, 1937

Appeals from Circuit Court No. 2 of Baltimore City; Samuel K. Dennis Judge.

Suits by William S. Norris and Hattie B. Daly, respectively against Howard W. Jackson and others, as members of the Voting Machine Board of Baltimore City, and others. From decrees for complainants in part, defendants appeal and complainants cross-appeal.

Affirmed.

Paul F. Due, of Baltimore, for appellant Voting Machine Board.

Arthur W. Machen, and Wendell D. Allen, both of Baltimore (Armstrong, Machen & Allen, of Baltimore, Md., on the brief) for appellant Automatic Voting Machine Corporation.

Charles C. G. Evans, Deputy City Sol., and Wm. H. Marshall, Asst. City Sol., both of Baltimore, for appellants mayor and city council of Baltimore, and R. Walter Graham, comptroller of Baltimore City.

Charles G. Page, of Baltimore, for appellee William S. Norris.

Isaac Lobe Straus and Willis R. Jones, both of Baltimore, for appellee Hattie B. Daly.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

PARKE Judge.

The appeals and cross-appeals on this record present questions in relation to the validity of the contract of purchase of voting machines for use, pursuant to the terms of chapter 94 of the Acts of 1937, in the primary and general elections to be held in Baltimore City, a political division of the state.

The employment of voting machines in primary and general elections was controlled until 1937 by sections 222-224 of article 33 of the Code (1924) of Public General Laws, and added sections 224A-224D of the Acts of 1933, c. 228 and Acts of 1935, c. 532 (Code Supp.1935, art. 33, §§ 224A-224D). The effect of the statutory law was to grant to the respective boards of election supervisors in the state a discretionary power to introduce the machines, with two modifications which required the board in Baltimore City to use, in all future elections after the passage of chapter 228 of the Acts of 1933, the machines that had been theretofore purchased by that municipality and were then available for use, and which, subject to the approval of the local board of county commissioners, made a permissive installation of the machines in two specified election districts of Montgomery county. Supra. In 1937, chapter 94 was passed as an emergency law within the scope and meaning of chapter 5 of the Laws of Maryland, Special Session, 1936, which authorized the borrowing of money by the mayor and common council of Baltimore for specified exigent purposes. The statute of 1937 was made effective from the date of its passage. The enactment declares the use of voting machines mandatory in all elections in Baltimore City after January 1, 1938, unless a voting machine becomes unavailable because of an accidental happening; and leaves discretionary the installation of voting machines in the counties. The statute further prescribes with respect to Baltimore City the general features and facilities of the machines; the powers, functions, and duties of the Board of Supervisors; and many provisions and regulations to assure a fair, honest, and free election; a certain and correct vote; and an accurate count and true return of the result.

The Act of 1937 directs the Board of Supervisors of Election for Baltimore City to use the voting machines which the municipality had purchased. The members of the Board of Estimates of Baltimore City and of the Board of Supervisors are together constituted a special board, and as such are 'authorized, empowered and directed to purchase a sufficient number of voting machines for use in all polling places throughout the City of Baltimore.' Section 224A. The expenses incurred by this particular board and the cost of the machines are directed to be paid upon the requisition of this board, and after audit by the comptroller of the city. The board is empowered by a majority vote of its members to require such supplementary specifications to those set forth in the act as shall be decided to be proper for the voting machines acquired or to be acquired by this board, and to select in their discretion the type and make of the machines. The special board is further given the authority, in its discretion, to employ engineers or other skillful persons to advise and aid them in the exercise of the powers conferred and duties imposed. After their purchase the machines are to be delivered to the Supervisors of Election, who shall have their control and custody. Wherever possible, these provisions are to be construed in harmony with existing laws. Section 224A. So, it is argued, that this Voting Machine Board has no power to make a valid contract to buy the voting machines, unless the machines are purchased through or with the approval of the Central Purchasing Bureau, and in conformity with the promulgated rules and regulations of that bureau, and the statutory requirement of a bond to the state, if the seller sells in competitive biding. Code, art. 78, §§ 1-8. The Central Purchasing Bureau was created by chapter 184 of the Acts of 1920, for the purpose of having the various institutions of the state buy through a central agency, and thereby secure lower prices and better quality and results because of the volume bought; of the standardization of materials, supplies, and articles customarily required; and of the check on waste, fraud, and extravagance. The functions of the executive and administrative officers who compose the personnel of the bureau are indicative of the legislative purpose; and there is no suggestion that the boards of election supervisors, which are engaged in a peculiarly important political office, were designed to be grouped with executive official boards, departments, and institutions charged with the administrative activities of the state so that the equipment of an election should cease to be provided by the officials immediately responsible for the purchase, control, and custody under the law of the election machinery and supplies and be bought by the Purchasing Bureau.

The statutes impose weighty duties upon election officials in order that trickery and fraud may be prevented and freedom and purity of elections may be secured. Their grave responsibility is accompanied by criminal liability denounced by the statute for a failure to fulfill their functions as exacted by law. Considerations which are founded in public policy reject the suggestion that there is an implied legislative intention to divide the authority of the supervisors of election by the interposition of an intermediary and, notwithstanding, retain the full measure of their liability. So, both before and since the passage of the statute with which the bureau began, the several boards of supervisors of election throughout the state have been authorized to provide all necessary ballots, ballot boxes, and booths; registry books, poll books, tally sheets, blanks, and stationery. The expenses of the Supervisors of Election for the purchase of these and all other necessary supplies have been uniformly paid by Baltimore City or by the respective counties. Code, art. 33, § 3, as amended by Acts 1933, c. 417; Acts 1924, c. 581, §§ 54-61; 1922, c. 225; and 1933, c. 228; 1935, c. 532 (Code Pub.Gen.Laws 1924, art. 33, §§ 16, 54-62, 66, Code Supp.1935, art. 33, §§ 3, 224A-224D). With respect to the equipment, ballots, ballot boxes, booths, and supplies either the election law or the supervisors prescribe their kind, quality, and form, and these matters are not otherwise delegable. It is, therefore, reasonable to expect and to find that, within the terms of the statute which grants and defines the scope and power of the bureau, there is the implied exclusion from its operation of all boards of supervisors of election. The exemption appears from the fact that every state officer, board, department, commission, and institution intended to be included is limited to those whose accounts are payable by the comptroller of the state out of the amounts appropriated therefor by the General Assembly of Maryland in the Budget Bill. Code, art. 78, § 4.

Again, it should be observed that the Act of 1937, c. 94, creates a new board by combining the members of the Board of Election Supervisors for Baltimore City with the members of the Board of Estimates of Baltimore City. The official body so constituted is formed for the express purpose of determining the type and make, with any specifications supplementary to those required by the act, of the voting machines to be acquired by purchase by this board and to be paid for by the mayor and council of Baltimore City. In the performance of this exclusive function the board is given the authority to inform their judgment by the expert aid and advice of engineers or other skilled persons. These explicit provisions enforce the conclusion that the General Assembly did not intend the full, material, and complete powers of the specially erected board to be rendered meaningless by remitting to the bureau not only the purchase, but also the duty to 'determine and formulate standards,' of the voting machines. Code, art. 78, § 3. If further support of this conclusion were necessary, it is found in the fact that if the bureau should buy the machines, and they be delivered, and the invoice approved by the bureau, the comptroller could not lawfully pay the account, because there are no funds 'appropriated therefor by the General Assembly in the Budget Bill,' as contemplated by the statute in respect of the Purchasing Bureau. Ibid. § 4.

It is obvious that the contract for the voting machines is to be made by the board created by chapter 94 of the Acts of 1937 without any recourse to the...