Leser v. Garnett

• Decision Date: 28 June 1921
• Docket Number: 43.
• Citation: 114 A. 840,139 Md. 46
• Parties: LESER et al. v. GARNETT et al., Board of Registry.
• Court: Maryland Court of Appeals

114 A. 840

139 Md. 46

LESER et al. v. GARNETT et al., Board of Registry.

No. 43.

Court of Appeals of Maryland

June 28, 1921

Appeal from Court of Common Pleas of Baltimore City; Chas. W Heuisler, Judge.

Petition by Oscar Leser and others against J. Mercer Garnett and others, constituting the Board of Registry of the Seventh Precinct of the Eleventh Ward of Baltimore City, to have particular names stricken from the registry of voters of such precinct. Petition dismissed, and petitioners appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER ADKINS, and OFFUTT, JJ.

William L. Marbury, of Baltimore, Everett P. Wheeler, of New York City, and George Arnold Frick and Thos. F. Cadwalader, both of Baltimore (Samuel K. Dennis, of Baltimore, on the brief) for appellants.

Jacob M. Moses, Roger Howell, and George M. Brady, all of Baltimore, and Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen., on the brief), for appellees.

J. Seymour T. Waters, of Baltimore, amicus curiae, for David Holmes Morton.

OFFUTT J.

Cecelia Street Waters, a white woman, and Mary D. Randolph, a colored woman, both citizens of Maryland, applied on October 12, 1920, to the board of registry of the Seventh precinct of the eleventh ward of Baltimore City for registration as qualified voters therein. Aside from their sex, the applicants possessed the qualifications prescribed by the Constitution and laws of this state entitling them to the registration for which they applied. At the time they applied for registration Mr. Oscar Leser, on his own behalf, and on behalf of the Maryland League for State Defense, challenged the right of each of the applicants to register as a qualified voter, on the grounds: First, that the applicants were female citizens of the state, whereas the Constitution of Maryland confined the right of suffrage to males; and second, that neither of them was entitled to register under the Nineteenth Amendment to the Constitution of the United States, because that amendment had never been "legally proposed, ratified, or adopted as a part of the Constitution," and was invalid because it was "in excess of any power to amend the Constitution of the United States, conferred by the provisions of article 5" of that Constitution. The challenges were overruled, and the applicants duly registered.

Thereafter, on October 30, 1920, Mr. Leser, and other citizens of Maryland, who were also members of the board of managers of the Maryland League for State Defense, filed a petition in the court of common pleas of Baltimore City, in which the petitioners stated that they were aggrieved by the action of the board of registry in registering the names of the two women to whom we have referred, and asked that their names be stricken from the registry of voters of the precinct in which they were registered. In this petition the petitioners rest their claim for relief upon the following ground:

"(1) The said alleged amendment to the United States Constitution is not such an amendment as the Congress is authorized by article 5 of the Constitution of the United States to propose to the Legislatures of the several states to be by them ratified in accordance with said Article 5, but is wholly outside of the scope and purpose of the amending power conferred upon Congress, subject to the ratification by three-fourths of the state Legislature, by the said article, as is more fully and expressly set forth in the resolution of the General Assembly of Maryland rejecting and refusing to ratify the said amendment at the January session of 1920."

(2) "That the said alleged Nineteenth Amendment to the Constitution of the United States was never in fact ratified by the Legislatures of three-fourths of the states now composing the United States of America, the proclamation dated August ___, 1920, by Hon. Bainbridge Colby, Secretary of State of the United States, to the contrary notwithstanding.

(a) Because of the fact that it was not ratified by the Legislature of the state of West Virginia, but on the contrary was defeated and rejected by the said Legislature."

(3) "And because, although the Legislature of the state of Missouri undertook to pass a resolution ratifying the said measure, nevertheless it was forbidden to do so by the following provision of the Constitution of the state of Missouri: 'Article 2, § 3. We declare, that Missouri is a free and independent state, subject only to the Constitution of the United States; and as the preservation of the states and the maintenance of their governments are necessary to an indestructible Union, and were intended to coexist with it, the Legislature is not authorized to adopt nor will the people of this state ever assent to any amendment or change to the Constitution of the United States which may in any wise impair the right of local self-government, belonging to the people of this state."'

(4) "Because the Legislature of the state of Tennessee, being a body corporate created under and in pursuance of the Constitution of the said state and subject to the limitation therein expressed, undertook to act upon a resolution purporting to ratify the said alleged Nineteenth Amendment, yet its action in the premises was null and void, for the reason that the members of the said Legislature were elected prior to the submission of the said amendment by Congress to the Legislatures of the several states, and therefore by the provisions of the Constitution of the state of Tennessee, the said existing Legislature was prohibited from acting upon said alleged amendment. The provision of said Constitution being as follows:

'No convention or General Assembly shall act upon any amendment of the Constitution of the United States proposed by Congress to the several states, unless such convention or General Assembly shall have been elected after such amendment has been submitted.'

And because, even if the Legislature of the state of Tennessee, at its session held in the month of August, 1920, were competent to act in the matter of ratification of the said amendment to the Constitution of the United States, the said Legislature did not pass any resolution ratifying the said alleged Nineteenth Amendment, but did, in fact, defeat and reject such resolution."

(5) "That in a number of the states of the American Union, including the states of Massachusetts, New Jersey, Pennsylvania, Rhode Island, Arkansas, Maine, New Hampshire, Ohio, Iowa, Nebraska, Missouri, Texas, Kentucky, and others, the people have seen fit to provide in their state Constitutions that the rights and duties pertaining to the elective franchise shall be limited to men. In these states the people have also provided that no changes should be made in their state Constitutions by any act or resolution of their state Legislatures, and have thereby in effect forbidden their said respective state Legislatures to vote for the ratification of any proposed amendment to the Constitution of the United States which would have the effect of abolishing or changing the Constitution of the state."

In answer to this petition the respondents asserted: First, that the court was without jurisdiction to determine "the matters alleged in said petition, because to do so would be to deny full faith and credit in this state to the public acts, records, and judicial proceedings of other states, in violation of section 1 of article 4 of the Constitution of the United States, and to question the validity of an official act duly performed by the Secretary of State of the United States," and because no application was ever made to the appellees to strike from the list of persons registered as qualified voters the two women alleged to have improperly registered, nor were their names placed upon the "suspected" list, nor any "other legal proceeding taken before the appellees to prevent the registration of said persons or to strike their names from the list of qualified voters in said precinct, nor any hearing had before the appellees in reference to the right of the persons named to register in said precinct; and, second, that the two women were not disqualified under the Constitution of the state of Maryland, or of the United States, from voting at any election" hereafter to be held.

Testimony was offered in support of the petition, and 13 prayers, presenting the legal propositions advanced by the appellants, submitted; and after a hearing these prayers were refused and the petition dismissed. From that order this appeal was taken.

The substantial questions presented by the appeal are: First, whether the court of common pleas of Baltimore City had jurisdiction to pass upon the matters contained in the petition; and second, whether the Nineteenth Amendment of the Constitution of the United States was validly adopted and ratified, and is binding upon the several States of the Union and the people thereof; and we will consider these questions in the order in which we have stated them.

The appellee contended that "the court was without jurisdiction to entertain the petition, because the petitioners did not bring themselves within the provisions of the election law authorizing petitions to strike names from the books of registry, and because it does not appear that any summons was served upon either of the persons registered"; but we are unable to assent to the proposition thus stated, nor do we regard the decisions of this court cited in support of it as applicable to the facts of this case. These facts are that, when the two women to whom we have referred applied to the board of registry to be registered as qualified voters, Mr. Oscar Leser, a citizen of Maryland and a resident of Baltimore City, in their presence challenged their right to register, and...