Norris v. Mayor and City Council of Baltimore

• Decision Date: 26 May 1937
• Docket Number: 9.
• Citation: 192 A. 531,172 Md. 667
• Parties: NORRIS ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

192 A. 531

172 Md. 667

NORRIS ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 9.

Court of Appeals of Maryland

May 26, 1937

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

Suit by William S. Norris against the Mayor and City Council of Baltimore, wherein Eleanor E. Smith intervened as plaintiff. From a decree sustaining the defendants' demurrer to the bill and dismissing the bill, the plaintiffs appeal.

Affirmed.

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

Charles G. Page, of Baltimore, for appellant Wm. S. Norris.

Stewart Brown, of Baltimore, for appellant Eleanor E. Smith.

R. E Lee Marshall, City Sol., and Hector J. Ciotti, Asst. City Sol., both of Baltimore, for appellee.

OFFUTT Judge.

The Maryland Legislature by chapter 513 of the Acts of 1914 codified as article 33, §§ 222, 223, and 224, Code, authorized the election supervisors of Baltimore City, and the election supervisors of the several counties of Maryland, to use voting machines in primary and general elections under such rules and regulations as such supervisors might deem advisable or necessary. The supervisors for the city and for the counties respectively were also authorized to determine what election precincts should first be equipped with voting machines, and empowered to purchase such machines as they might deem advisable. Code Supp.1935, article 33, § 224A.

By chapter 228 of the Acts of 1933 (Code Supp. art. 33, § 224A), the election supervisors of Baltimore City were "directed" to use certain voting machines theretofore purchased by the mayor and city council of Baltimore "in all future elections." By chapter 532, §§ 224B, 224C, and 224D, Acts of 1935 (Code Supp. 1935, article 33, §§ 224B, 224C, and 224D), the election supervisors of Montgomery county, with the approval of the board of county commissioners of that county, were authorized to secure and use in two of the election districts of that county similar machines.

These several statutes were obviously steps in an experiment which was being carried on to test the wisdom and the expediency of substituting voting by machine for the older system formerly uniform throughout the state of voting by paper ballots. Following the experience obtained from the operation of those laws, the Legislature by chapter 94, Acts of 1937, directed (a) the board of election supervisors of Baltimore City in all future elections to use the voting machines theretofore purchased by the mayor and city council of Baltimore; and (b) authorized, directed, and empowered a board composed of the members of the board of estimates and the board of election supervisors "to purchase a sufficient number of voting machines for use in all polling places throughout the city of Baltimore at all primary, general, special and other elections, held or to be held in said City after the 1st day of January, 1938. The expenses incurred by said Board and the cost of such voting machines shall, upon the requisition of said Board, be audited by the Comptroller of Baltimore City, who shall pay the same by warrant drawn upon the proper officers of said City." Section 224A. Section 4, the concluding section of the act, provided: "That the Act is hereby declared to be an emergency law within the scope and meaning of Chapter 5 of the Laws of Maryland, Special Session 1936, and necessary as a police measure for the immediate regulation of elections in Baltimore City; and having been passed by 'yea' and 'nay' vote supported by three-fifths of all of the members elected to each of the two Houses of the General Assembly, the same shall take effect from the date of its passage." The act was approved and became effective on March 24, 1937.

In obedience to the mandate of the act, the mayor and city council of Baltimore, by Ordinance No. 694 approved April 13, 1937, authorized the mayor and city council of Baltimore to issue "negotiable or non-negotiable obligations" to an amount "not exceeding" $1,250,000, to meet requisitions of the said board made under the authority and direction of chapter 94, Acts 1937.

On April 13, 1937, William C. Norris, suing as a taxpayer of Baltimore City, filed in circuit court No. 2 of Baltimore City the bill of complaint in this case against the mayor and city council of Baltimore City in which he prayed that Ordinance No. 694 be declared invalid, that chapter 94 of the Acts of 1937 be declared to be unconstitutional, and that the defendants be permanently enjoined from issuing obligations of the said city as provided by Ordinance No. 694. A demurrer to that bill was sustained and the bill dismissed. From that decree Norris, and one Eleanor E. Smith, an intervening plaintiff, appealed.

The grounds alleged as a basis for the relief sought by the appellants are: (1) That the act violates article 1, § 1, of the Maryland Constitution , which requires that all elections shall be by ballot; (2) that it is a special law passed for a case for which provision has been made by an existing general law; (3) that the emergency provision of the act violates the referendum article of the Maryland Constitution, article 16, § 2; (4) that the ordinance is void because it is an attempt to borrow money on the city's credit without a "prior enabling act or submission to the voters of the city," in violation of article 11, § 7, of the Maryland Constitution; and (5) that the ordinance is void because it fails to provide for the discharge of the debt authorized, within forty years, as required by article 11, § 7, of the Maryland Constitution and section 25-B of the Charter of Baltimore City (Code Pub.Loc. Laws 1930, art. 4, § 25-B, as added by Laws 1936, 1st Sp.Sess., c. 5).

The appellants assert the affirmative of those propositions, the appellee the negative.

Since the validity of the act in no wise depends upon the validity of the ordinance, while the validity of the ordinance does depend upon the validity of the act, the objections to the act will be considered first, and in the order in which they have been named.

Election by ballot.

Much interesting and useful learning has been invoked in aid of the contention that voting by machine in public elections is prohibited as a substitute for voting by ballot by the Constitution of Maryland, art. 1, § 1, but in the main the argument ignores the rule which above all others gives life to the written law and makes its use possible for the government and control of men in carrying on the actual business of life, and that is that while the principles of the constitution are unchangeable, in interpreting the language by which they are expressed, it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee. 6 R.C.L., "Constitutional Law," § 40. So it has been said that "a constitution is to be interpreted by the spirit which vivifies, and not by the letter which killeth." Ibid. Nevertheless it is axiomatic that where the language of a Constitution is clear and unambiguous, there can be no resort to construction to attribute to the founders a purpose or intent not manifest in its letter. Cooley on Const.Lim. 124 et seq. But where the meaning of the words employed is susceptible of expansion so as to include a significance in complete harmony with the spirit and purpose of the instrument which will gratify a legislative intent or serve a present need, they may be so interpreted, for it is an accepted canon of constitutional construction that such instruments are to be liberally construed to accomplish the purpose for which they were adopted. In determining the true meaning of the language used, the courts may consider the mischief at which the provision was aimed, the remedy, the temper and spirit of the people at the time it was framed, the common usage well known to the people, and the history of the growth or evolution of the particular provision under consideration. Since Constitutions are the basic and organic law, and are meant to be known and understood by all the people, the words used should be given the meaning which would be given to them in common and ordinary usage by the average man in interpreting them in relation to every day affairs. 6 R.C.L., "Constitutional Law," chapter V; Cooley on Const.Lim. ch. IV; 12 C.J., "Constitutional Law," §§ 41-48. In aid of an inquiry into the true meaning of the language used, weight may also be given to long-continued contemporaneous construction by officials charged with the administration of the government, and especially by the Legislature. 6 R.C.L. 62, 63.

In approaching the specific question under consideration, the first inquiry therefore is whether the word "ballot" as used in that part of article 1, § 1, of the Maryland Constitution which provides that "All elections shall be by ballot," has such a common, definite, and precise meaning as to preclude any interpretation of it which would permit any method of voting other than by some paper on which is indicated by appropriate marks the voter's choice of men or measures.

The word is derived from "ballotta," "a round bullet, a voice or lot (Florio 1598), dim. of balla Ball," Oxford Dict., and is said in the same work to mean, "The method or system of secret voting, originally by means of small balls placed in an urn or box; an application of this mode of voting, * * *" and "To vote, for approval, selection or rejection, upon (a proposed resolution, candidate etc.), by depositing small balls in an urn or box, or by some other secret method," "To give a secret vote." In Webster's New International Dictionary it is defined as an, "Act of voting, usually in secret, by balls or by...