Kenneweg v. Allegany County Com'rs
| Decision Date | 16 November 1905 |
| Citation | 62 A. 249,102 Md. 119 |
| Parties | KENNEWEG v. ALLEGANY COUNTY COM'RS. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Allegany County, in Equity; A. Hunter Boyd and Robert R. Henderson, Judges.
Suit by Christian F. Kenneweg against the county commissioners of Allegany county. From a decree dismissing the bill complainant appeals. Affirmed.
Argued before McSHERRY, C.J., and BRISCOE, PAGE, PEARCE, SCHMUCKER and JONES, JJ.
Irvine R. Dickey and W.C. Devecmon, for appellant.
A.A Doub and Benj. A. Richmond, for appellees.
The bill of complaint which inaugurated this proceeding was filed by the appellant against the appellees on the equity side of the circuit court for Allegany county on the 28th day of April, 1905. It was demurred to. The demurrer was sustained. The bill was dismissed, and from that decretal order the pending appeal was taken. The appellant is a taxpayer in, and a resident of, Allegany county, and pays taxes on property owned by him and assessed to the value of $6,000. He complains that the appellees, the county commissioners, have levied upon the taxable property in said county the sum of $2,000, to be included in the general levy of said county for the year 1905-1906 for the purpose of defraying the expenses of holding primary elections during the month of September, 1905, for the nomination of state and county officers to be voted for at the general election to be held in November, following; that the levy of the above-named sum was made under a pretended authority supposed to be contained in chapter 508, p. 870, of the Acts of the General Assembly of 1904; that the act just indicated does not authorize the county commissioners to make the levy in question; and that the act is null, void, and unconstitutional. The bill prays that an injunction may be issued restraining the county commissioners "from levying or causing to be collected from the taxpayers of the county the said sum of $2,000, or any part thereof, for the illegal purpose aforesaid." The appellant does not sue in behalf of himself and other taxpayers who may be similarly situated, and who may come in and make themselves parties to the cause, but he sues alone, in his own name and his own behalf. Laying aside for the moment the question as to whether he has shown on the face of the bill such a pecuniary interest as is required to give a court of equity jurisdiction in the premises, we turn to the main and important inquiry involving the constitutionality of the statute. And in doing so we pass by, for the present, the subsidiary objection as to the lack of authority on the part of the commissioners to make the levy, because a few references later on to the provisions of the act and of the Code of Public General Laws will refute this objection completely.
Had the General Assembly the power to adopt the act of 1904 (Acts 1904, p. 870, c. 508)? In a word is the act in conflict with any provision of the state or the federal Constitutions? The act is an act amendatory of the Public Local Laws of Allegany county, and relates exclusively to the holding of primary elections in that county by the two leading political parties for the selection of candidates to be voted for at ensuing state and congressional elections. It places safeguards around, and gives legal sanction to, these primary contests. It prescribes how nominations are to be made by popular vote; how and upon what conditions candidates may enter those contests, and in what manner and at what times the votes cast thereat shall be counted, and how the results shall be ascertained and certified. Elaborate details--not always consistent or harmonious, perhaps--are prescribed with reference to the conduct of the primaries; and the duties imposed upon the county committees of the two political parties, as well as the duties assigned to the election supervisors, are set forth with much prolixity, though not always with great clearness. To state more at large the numerous provisions of the statute, would necessitate a transcription of all its terms. Enough has been said to indicate the character, the scope, and the object, but not the, minute provisions of, this legislation; and we now repeat the question, had the General Assembly the power to adopt it? The General Assembly possesses all legislative power and authority, except in such instances and to such extent as the Constitutions of the state and of the United States have imposed limitations and restraints thereon. In this respect the Legislature differs from the Congress of the United States, which has, and can exercise, only such power as the federal Constitution expressly or by necessary implication confers upon it. In the General Assembly plenary power to legislate is vested, unless restrained by the Constitution. In the Congress the power to legislate is not vested, unless confided by the federal Constitution. In the state Constitution we look, not for the power of the General Assembly to adopt an enactment, but for a prohibition against its adoption. In the federal Constitution we look, not for the prohibition, but for the delegated power to enact a measure. The General Assembly being, then, the depository of all legislative power, except when restrained by the organic law, it follows that it is clothed with full power to enact a primary election law, if there is no provision in the Constitution depriving it of that authority. There is no such provision to be found in the Constitution of the state. It is true that section 42 of article 3 of the Constitution provides: "The General Assembly shall pass laws for the preservation of the purity of elections"--but the power to enact a primary election law lies back of and beyond this provision, and is not derived from it at all. The power to legislate in regard to elections--primary or general--if unrestrained by the Constitution itself, is inherent in the General Assembly, and the provision just cited, instead of conferring the power, is a mandate to execute a power implicitly assumed to exist independently of the mandate. "The General Assembly shall pass laws," is a direction to bring into activity an antecedent and independent authority.
The power, then, to enact a primary election law being inherent in the Legislature, it only remains to inquire whether in the execution of that power the General Assembly has, by the act in question, infringed upon or broken through some inhibitory provision of the organic law. No section or clause of the act has been pointed out as in conflict with any particular or designated prohibition; and a careful reading of the statute has not disclosed to us the existence of such antagonism. Whilst this is true, it has been contended that the act is void because it undertakes to add a property qualification for holding public office which is not contained in the Constitution; and this contention is based upon section 112 of the act. By the section just named it is provided that each person who desires to become a candidate for nomination shall pay to the chairman of the committee of the party to which he belongs a certain fee, the amount of which is regulated for the different offices by the section in question, which fees are to be used exclusively as a fund to defray the expenses of announcing candidates, printing ballots, furnishing blanks, and other necessary expenses for holding and conducting the primary election, and for paying such expenses of the return judges as may be determined by the convention of return judges. Now, the exaction of the fee is by no means the imposition of a property qualification on the candidates. Primary contests necessarily require the expenditure of money for the purposes just indicated, and the money must be procured from some source. The requirement that the individuals who, through the primaries, seek to secure nomination, shall pay the expenses which the governing body of their party are compelled to incur for their benefit and in their behalf, is neither unreasonable nor unjust, and most certainly is not the superaddition of a property qualification for holding the offices to which they aspire.
The appellant insists that the act is against public policy and contrary to the fundamental principles of justice; but if this contention were conceded--and it is not--the ground of assault would be shifted to an entirely different position from the one of its alleged unconstitutionality. What public policy is invaded by it? No exact definition of public policy has ever been given or can be found. In Richardson v Mellish, 2 Bing. 229, Mr. Justice Burroughs pointedly observed: We do not deem it necessary to go into a consideration of the several particulars in respect of which it is asserted public policy is violated by the act, because, first, we are at a loss to know what public policy is invaded, and, secondly, because, public policy, of itself and without having its foundation in some constitutional provision, can neither circumscribe nor restrain the legislative authority of the General Assembly. We cannot undertake to declare the statute unconstitutional merely because it is assumed to be at variance with some undefined and undetermined public policy, which at best is but a shifting and variable notion appealed to only when no other argument is...
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