Maryland Committee for Fair Representation v. Tawes

• Decision Date: 01 September 1962
• Docket Number: No. 140,140
• Citation: 184 A.2d 715,229 Md. 406
• Parties: MARYLAND COMMITTEE FOR FAIR REPRESENTATION et al., v. J. Millard TAWES, Governor, et al. ,
• Court: Maryland Court of Appeals

Page 406

229 Md. 406

184 A.2d 715

MARYLAND COMMITTEE FOR FAIR REPRESENTATION et al., v. J. Millard TAWES, Governor, et al.

No. 140, Sept. Term, 1962.

Court of Appeals of Maryland.

Sept. 25, 1962.

Alfred L. Scanlan, Bethesda (Shea & Gardner, Washington, D. C., John B. Wright, Annapolis, and Johnson Bowie, Towson, on the brief), for appellants.

Thomas B. Finan, Atty. Gen., and Joseph S. Kaufman, Deputy Atty. Gen., Baltimore (Morris Turk, Atty. for Bd. of Election Supervisors for Anne Arundel Co., Annapolis, on the brief), for appellees.

Alfred H. Carter, County Atty. for Montgomery County, and Richard J. Sincoff, Asst. County Atty., Rockville, on the brief, amicus curiae, filed by Montgomery County.

Before BRUNE, C. J., HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ., and JAMES MACGILL, Special Judge.

HENDERSON, Judge.

On July 23, 1962, we filed a per curiam order, 182 A.2d 877, affirming a declaratory decree of the Circuit Court for Anne Arundel County that Article III, sec. 2 of the Maryland Constitution is valid and constitutional. We now state the reasons for our order.

This is the third time this case has been before this Court. On April 24, 1962, following the Supreme Court's ruling in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and its per curiam order in Scholle v. Hare, 369 U.S. 429, 82 S.Ct. 910, 8 L.Ed.2d 1, we reversed a decision of the Circuit Court for Anne Arundel County which had sustained the appellees' demurrers to the bill of complaint. We held, by a divided court, that the bill, alleging that the apportionment prescribed by the Maryland Constitution violated the Fourteenth Amendment to the United States Constitution, stated a justiciable cause of action cognizable in the State courts, and remanded the case in order that the chancellor might determine 'whether or not an invidious discrimination does exist with respect to representation in either or both houses.' Maryland Committee v. Tawes, 228 Md. 412, 436, 180 A.2d 656, 669. We also said that 'inquiry into the rational basis for such apportionment seems to be called for.'

On May 28, 1962, the chancellor, after argument but without hearing testimony, held on motion for summary judgment that the composition of the House of Delegates, prescribed by Article III, sec. 5 of the Maryland Constitution, violated the Fourteenth Amendment, in that the distribution of numerical voting strength in voting for members of the House of Delegates, accorded to voters in the four suburban and more populous counties, was arbitrary and unreasonable. He reserved decision as to the Senate.

The Governor promptly convened a special session of the General Assembly, which for the first time in the history of this State added nineteen Delegates to the House of Delegates, to be voted for in the 1962 elections, by 'stop-gap' legislation rather than by proposing a constitutional amendment. A proposed constitutional amendment failed of passage. The appellants entered an appeal from the chancellor's order reserving decision as to the Senate and we remanded the case with directions that the chancellor decide the point. The present appeal is from that decision. No question is presented as to the validity of the 'stop-gap' legislation or the reapportionment of the House of Delegates.

Article III, section 1 of the Maryland Constitution provides: 'The Legislature shall consist of two distinct branches; a Senate, and a House of Delegates, and shall be styled the General Assembly of Maryland.'

Art. III, sec. 2 provides: 'The City of Baltimore shall be divided into six legislative districts as near as may be of equal population and of contiguous territory, and each of said legislative districts of Baltimore City, as they may from time to time be laid out, in accordance with the provisions hereof, and each county in the State, shall be entitled to one Senator, who shall be elected by the qualified voters of the said legislative districts of Baltimore City and of the counties of the State, respectively, and shall serve for four years from the date of his election.'

Throughout the colonial period the upper house consisted of the Governor and Council, appointed by the proprietor, and modeled after the English House of Lords. They also sat as a provincial court and court of appeals from the county courts. See Bond, Court of Appeals of Maryland, p. 4 et seq. See also 1 McMahon, Historical View of the Government of Maryland (1831), p. 148. That they had a certain sectional distribution was fortuitous. While the House of Delegates was selected on a county basis (four from each) the councilors were selected from among the most eminent landowners and office holders, serving at the will of the Governor. ¹ In the Constitution of 1776, Art. XV provided for a Senate to be elected by the vote of Delegates elected two from each county and one each from the City of Annapolis and Baltimore Town. At that time there were eight counties on the eastern shore and ten counties on the western shore. These electors were directed to elect six senators from residents of the eastern shore and nine senators from residents of the western shore, 'men of the most wisdom, experience and virtue, above twenty-five years of age, residents of the state above three whole years next preceding the election, and having therein real and personal property above the value of one thousand pounds current money.' See Niles, Maryland Constitutional Law, p. 5. By the amendment proposed by Chapter 197, Acts of 1836, and ratified in 1837, the Senate was reconstituted to consist of one senator from each county (of which there were when twenty by reason of the establishment of Allegany and Carroll Counties) and one from Baltimore City. The method of indirect election by an electoral college was abandoned. This distribution was continued in the Constitution of 1851, and so far as the counties are concerned, was continued in the Constitutions of 1864 and 1867, and in subsequent amendments. The last county to be formed, Garrett, was erected in 1872. See 3 Scharf, History of Maryland, p. 778. From that date the counties have numbered twenty-three.

However, Baltimore City, which had achieved the status of a political subdivision independent of Baltimore County in 1851, was allotted three senators, one from each legislative district, in 1864 and this provision was continued in 1867. It received an additional legislative district and senator in 1900 and two more in 1922, subsequent to the annexation of portions of Baltimore County and Anne Arundel County by Chapter 85 of the Acts of 1918.

The counties of Maryland have always been an integral part of the state government. St. Mary's County was established in 1634 contemporaneous with the establishment of the proprietary government, probably on the model of the English shire, associated with the important office of sheriff. 1 Scharf, supra, p. 124 et seq. Indeed, Kent County had been established by Claiborne before the landing of the Marylanders and he established New Kent County in Virginia after he was ousted from Maryland vi et armis by the Calverts. We have noted that there were eighteen counties at the time of the adoption of the Constitution of 1776. They have always possessed and retained distinct individualities, possibly because of the diversity of terrain and occupation. Baltimore County, the most populous in the State, still has no incorporated towns, and until the recent adoption of a charter form of government, was governed by three elected commissioners who exercised the executive functions, while most of the legislative functions were exercised by its representatives in the General Assembly. Baltimore City, having acquired the unique status of an independent political subdivision, has maintained its own local government, subject to control by the General Assembly, since 1867. Only two counties, Montgomery and Baltimore have adopted the charter form of government under Art. XI of the State Constitution. While it is true that the counties are not sovereign bodies, having only the status of municipal corporations, Howard County v. Matthews, 146 Md. 553, 561, 127 A. 118, they have traditionally exercised wide governmental powers in the fields of education, welfare, police, taxation, roads, sanitation, health and the administration of justice, with a minimum of supervision by the State. In the diversity of their interests and their local autonomy, they are quite analogous to the states, in relation to the United States.

It is an interesting historical fact that the mode of selecting the members of the United States Senate adopted in 1789 was modeled, to a considerable extent, upon the Maryland Senate of 1776. In addressing the Constitutional Convention on August 14, 1787, Madison opposed a proposal that senators be paid by the states on the ground that it would tend to impair the stability and independence of the Senate, which, he remarked, 'was formed on the model of that of Maryland.' 4 The Writings of James Madison, edited by Gaillard Hunt, G. B. Putnam's Sons (1903) p. 202. Again, in No. 63 of The Federalist Papers, Madison in answering a contention that a Senate appointed not immediately by the people, and for a term of six years, would acquire a dangerous preeminence in the government and finally transform it into a tyrannical aristocracy, stated that 'the constitution of Maryland furnishes the most apposite example. The senate of that State is elected, as the Federal Senate will be, indirectly by the people; and for a term less by one year only, * * *. If the Federal Senate, therefore really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the senate of Maryland; but no such symptoms have appeared. On the contrary * * * the Maryland constitution is daily deriving from the salutary operation of this part of it, a reputation in which it...