Secretary of State v. Bryson

• Decision Date: 11 October 1966
• Docket Number: No. 412,412
• Citation: 244 Md. 418,224 A.2d 277
• Parties: SECRETARY OF STATE et al. v. Mary B. BRYSON. . Order
• Court: Maryland Court of Appeals

Page 418

244 Md. 418

224 A.2d 277

SECRETARY OF STATE et al. v. Mary B. BRYSON.

No. 412.

Court of Appeals of Maryland.

Order Oct. 11, 1966.

Opinion Nov. 14, 1966.

[224 A.2d 278] Edward L. Blanton, Jr., Asst. Atty. Gen., Baltimore, for appellants.

William B. Dulany, Westminster (James Willard Davis and Dulany & Davis, Westminster, on the brief), for appellee.

Before HAMMOND, C.J., and HORNEY, MARBURY, OPPENHEIMER, BARNES, McWILLIAMS and JOSEPH L. CARTER (specially assigned), JJ.

PER CURIAM ORDER

For reasons to be stated in an opinion to be hereafter filed, it is ORDERED by the Court of Appeals of Maryland this 11th day of October, 1966, that the paragraph of the decree appealed from, holding Section 42E (A-2) of Article 40 of the Code to be null and void, be, and it is hereby, affirmed with costs; and it is further

Ordered that the case be remanded for a further order or decree of the Circuit Court for Anne Arundel County; and it is further

Ordered that the mandate be issued forthwith.

Opinion

OPPENHEIMER, Judge.

After argument, we affirmed by per curiam order that part of the decree of the Circuit Court for Anne Arundel County which declared Section 42E(A-2) of Article 40 of the Code (Laws of Maryland, Spec.Sess., Oct., 1965) to be null and void, and ordered the case remanded for further order or decree of the Circuit Court. The reasons for our order follow.

The general scheme for reapportioning the Maryland Senate and House of Delegates contained in Chapter 2 of the Laws of Maryland, Special Session, 1965, which repealed and re-enacted Section 42 of Article 40 (the Act), was held constitutional in Hughes v. Maryland Committee for Fair Representation, 241 Md. 471, 217 A.2d 273 (1966), cert. denied, 384 U.S. 950, 86 S.Ct. 1569, 16 L.Ed.2d 547 (1966). The Act provides that the membership of the Senate shall consist of 43 Senators. The State is divided into 16 Senatorial Districts, of which District 2 is composed of Frederick and Carroll Counties and is to elect two Senators. Under the Act, both the primary and the general elections are at large within the District, without regard to the county residence of either the candidates or the voters. Section 42E(A-2) (the Section) reads as follows:

'In any Senatorial District comprising more than one county and having two senators, not more than one resident of any one county may be nominated by one political party at the primary election, unless the population of that one county exceeds the population of all the remaining counties in the district in the aggregate. Provided that any Senatorial candidate must be voted upon at large within the entire district at the primary election. The provisions of this subsection shall not apply to general elections for the office of State Senator.'

Under the Act, two State Senators from District 2 are to be elected in the general election on November 8, 1966. In the primary elections held in that District on September 13, 1966, there were three candidates for the two offices in the Democratic Party, and four candidates in the Republican Party, of which the appellee Mrs. Bryson, was one. The names and county residences of the four Republican candidates, and their order in the number of votes received, are as follows:

First-Joseph H. Hahn, Carroll County

Second-Mrs. Mary B. Bryson, the appellee, Carroll County

Third-Mehrl F. Wachter, Frederick County

Fouth-James S. Ensor, Frederick County

It has been stipulated that the 1960 Federal decennial census reports the population of Frederick County as 71,930 and that of Carroll County as 52,785. Therefore, if the Section is applicable and valid, only one Republication candidate resident in Carroll County could be nominated, and the appellee, although receiving the second highest number of votes in the Republican primary in the District, was not nominated because Mr. Hahn, who received the highest number of votes, was also a resident of Carroll County and Carroll County had a smaller population than Frederick County.

On the advice of the Attorney General, the Secretary of State refused to certify the appellee as a Republican nominee for a District 2 Senatorship. The appellee filed a bill for a declaratory decree and injunction against the Secretary of State and other appropriate State officials, asking that she be certified and for other relief. The case was submitted on the bill, answer and a stipulation; Judge Evans declared the Section to be unconstitutional, null and void and enjoined the appellants from certifying anyone as a winner of the Republican primary, subject to further order or decree of the court.

I

It is suggested that the Section can be construed as not applicable to primary elections in District 2. Under such a holding, the appellee would still prevail, but we would not reach the question of the constitutionality of the Section.

We are mindful of the principle of statutory construction that if a legislative act is susceptible of two reasonable interpretations, one of which would not involve a decision as to the constitutionality of the act while the other would, the construction which avoids the determination of constitutionality is to be preferred. Miller v. State, 174 Md. 362, 373, 198 A. 710 (1938) and authorities therein cited. However, the clear language of the Section as well as what seems to us the manifest legislative intent as expressed in the Act as a whole constrain us to find that the Section is applicable to the situation before us.

The Section begins by stating that not more than one resident of any one county may be nominated by one political party at the primary election 'in any Senatorial District comprising more than one county and having two senators.' Under Section 42E(2) District 2 comes directly within this definition. Districts 15 and 16 also come within it under 42E(15) and (16). District 15 is composed of five counties, Cecil, Kent, Queen Anne's, Caroline and Talbot, and District 16 of four counties, Dorchester, Wicomico, Worcester and Somerset. Under the Act, of the 16 districts, only these three comprise more than one county and have two senators.

The exception which follows the one-county one-resident provision states: 'Unless the population of that one county exceeds the population of all the remaining counties in the district in the aggregate.' It is suggested that as District 2 has only two counties, the phrase 'all the remaining counties in the district' is meaningless as to it, and that therefore the entire Section should be construed as not intended to be applicable to the District. The answer to this contention, in our opinion, is Code (1957), Article I, Section 8, which provides as one of the rules of interpretation of the Code that 'the singular always includes the plural, and vice versa, except where such construction would be unreasonable.' Under this provision, which enacts a general rule of statutory construction, the phrase is to be taken as meaning 'unless the population of that one county exceeds the population of the remaining county or all the remaining counties in the district.' We find nothing unreasonable in such a construction. For a comparable situation and a similar holding, see Forest Oil Corp. v. Davis, 384 P.2d 716 (Wyo.1963).

We believe that this construction of the Section is in harmony with, rather than inconsistent with the legislative intention as expressed in the Act as a whole. The ascertainment of that intention is the object of judicial interpretation, State Dept. of Assessments and Taxation v. Ellicott-Brandt, Inc., 237 Md. 328, 335, 206 A.2d 131 (1965). In that ascertainment, all parts and sections of the Act must be read and considered together. Height v. State, 225 Md. 251, 257, 170 A.2d 212 (1961) and cases therein cited. But we find nothing in the structure or provisions of the Act which tends to alter what, to us, are the clear and unequivocal provisions of the Section.

The structure of the Act is succinctly set forth by Chief Judge Prescott, for the Court, in Hughes. The provisions as to the House of Delegates are of general application, except that specific enactments are made as to Baltimore City. Section 42E, dealing with the Senate, first sets forth the composition of the 16 districts by counties. 42E(A-1), immediately preceding the Section here involved, is of general application; it pertains to any senatorial district entitled to elect more than two senators. (A-2) follows the same structure; whereas (A-1) is made applicable to any district entitled to more than two senators, (A-2) refers to any district comprising more than one county and having two senators. We find no inference or implication in any part of the Act that any provision is more restricted than it expressly states. Specifically, we are unable to follow the suggestion that because Districts 15 and 16 comprise more than two counties, although each has only two senators, those districts are the only ones intended to be included within the provisions of (A-2). If the Legislature had so intended, it could easily have so provided. It did not do so, but, on the contrary, expressly made the Section applicable to any district having two senators and comprising more than one county, thereby including within its terms District 2 as well as the two Eastern Shore districts.

If language is plain and free of ambiguity and has definite and sensible meaning, it is conclusively presumed to be the meaning of the Legislature in enacting the statute. Pineland Lumber Co. v. Miles, 228 Md. 584, 587-588, 180 A.2d 870 (1962) and cases therein cited. Courts should not attempt, under the guise of construction, to insert exceptions not made by the Legislature. Amalgamated Casualty Ins. Co. v. Helms, 239 Md. 529, 535-536, 212 A.2d 311 (1965).

We find the language of the Section plain and free of ambiguity, and that the plain, unambiguous language is in accord with the legislative intention as expressed in the Act as a whole. Acco...