Shub v. Simpson

• Decision Date: 01 November 1950
• Docket Number: No. 105,105
• Citation: 196 Md. 177,76 A.2d 332
• Parties: SHUB et al. v. SIMPSON, Secretary of State.
• Court: Maryland Court of Appeals

Page 177

196 Md. 177

76 A.2d 332

SHUB et al. v. SIMPSON, Secretary of State.

No. 105.

Court of Appeals of Maryland.

Nov. 1, 1950.

Appeal Dismissed Nov. 13, 1950.

See 71 S.Ct. 198.

I. Duke Avnet and Harold Buchman, Baltimore (William H. Murphy Baltimore, on the brief), for appellants.

J. Edgar Harvey, Deputy Atty. Gen. (Hall Hammond, Atty Gen., on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

Louis Shub, duly nominated candidate of the Progressive Party of Maryland for the office of governor, Sam Fox, duly nominated candidate of the same party for the office of United States senator, Marshall Jones, duly nominated candidate of the said party for the office of representative in Congress for the Fourth Congressional District, and Thelma Gerende, duly nominated candidate of the said party for the office of representative in Congress for the Second Congressional District, filed in the Circuit Court for Anne Arundel County on September 14, 1950, their petition for a writ of mandamus against the Secretary of State. They alleged that they possessed the necessary qualifications for the respective offices for which they had been nominated and had presented their certificates of nomination on August 18, 1950 (Gerende on August 31, 1950) with the proper filing fees to the Secretary of State who is charged with the duty of receiving such certificates, but that said certificates were rejected because of the failure of all of the petitioners to file the affidavit required by Sec. 15 of Article 85A of the Code, as enacted by Chapter 86 of the Acts of 1949, officially called the Subversive Activities Act of 1949, and familiarly known to the citizens of the State as the 'Ober Act'. The petition showed that some time after the said rejection, the petitioners Fox and Jones filed the required affidavits under protest, but the other petitioners did not. They ask that the Secretary of State be directed by writ of mandamus to accept the nomination of the petitioners without filing the affidavits, contending that the provisions of the Ober law requiring them are invalid.

The case was heard before Associate Judge Clark of the Fifth Judicial Circuit upon a demurrer filed by the Secretary of State. He sustained the demurrer and dismissed the petition on October 9, 1950 because the petitioners could not amend. From that order, all of the petitioners have appealed.

We advanced the case on account of the necessity of having the matter determined before the election and in time to make any necessary insertions in the ballots and voting machines. The case was fully argued before us on October 12, and on the same day, we passed a per curiam order by the terms of which the appeals of Jones and Fox were dismissed; the order of the court was affirmed as to Shub, but reversed as to Gerende. The reasons for that decision are now given.

It is perfectly apparent that as to Jones and Fox, the case is moot. They chose to make affidavits rather than stand on the legal questions they raised, and their certificates were accepted. As to them, it does not now matter whether the action of the Secretary of State in declining to receive those certificates without the affidavits was correct or not. For that reason their appeals were dismissed.

The petitioner Shub is a candidate for a state office. The petitioner Gerende is a candidate for a Federal office, and there is a distinction between the two cases which, in our opinion, makes Sec. 15 operative as to Shub, but not as to Gerende.

Chapter 86 of the Acts of 1949 has already been before this court in two cases, Hammond v. Lancaster, Md. 71 A.2d 474, 481, and Hammond v. Frankfeld, Md., 71 A.2d 482. The first of these cases was a class suit brought by various professors and other citizens who were taxpayers of the State. The second suit was brought by the chairman and labor secretary of the Communist Party who also sued as taxpayers. The majority of the court held that in neither case did the complainants have any standing to raise the questions they did, except that as to the validity of the subsequent act, Chapter 310 of the Acts of 1949, which put Chapter 86 in effect at once. The court, in the Hammond-Lancaster case said: 'We conclude that, upon the adoption of Chapter 310, Chapter 86 became effective on April 22, 1949, as an emergency law and remains in force unless and until repealed by the voters.' All of the questions which are raised in the present case were fully and expressly argued in the two previous cases, although no decision was made on them. The question of the validity of Sec. 15 is now clearly raised before us by parties who have a direct interest in its decision. It reads as follows: 'No person shall become a candidate for election under the provisions of Article 33 of the Annotated Code of Maryland to any public office whatsoever in this State, unless he or she shall file with the certificate of nomination required by the foregoing Article, an affidavit that he or she is not a subversive person as defined in this article; provided that, in the case of certificates of nomination for President or Vice President of the United States, the affidavit may be made on behalf of such candidates by those persons who file the certificate of nomination for such candidates. No certificate of nomination shall be received for filing by any Board of Supervisors of Elections or by the Secretary of State of Maryland unless accompanied by the affidavit aforesaid, and there shall not be entered upon any ballot or voting machine at any election the name of any person who has failed or refused to make the affidavit aforsaid.'

It is contended that the affidavit required by this section is contrary to Article 37 of the Maryland Declaration of Rights. That article provides that no religious test ought ever to be required as a qualification for any office of profit or trust in this State other than a declaration of belief in the existence of God, 'nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution.' The oath prescribed by the Constitution is found in Sec. 6 of Article 1, which states that every person elected or appointed to any office of profit or trust under the Constitution or under the laws pursuant thereto shall, before he enters into the duties of such office, take and subscribe the oath or affirmation therein set out. This oath is to the effect that the subscriber will support the Constitution of the United States, that he will be faithful and bear true allegiance to the State of Maryland and support the Constitution and laws thereof, and that he will to the best of his skill and judgment diligently and faithfully, with partiality and prejudice, execute his office according to the Constitution and laws of this State, and, if he is a governor, senator, member of the House of Delegates, or a judge he is to further state that he will not directly or indirectly receive the profits or any part of the profits of any other office during his term. The appellants say that the affidavit required by Sec. 15 of Article 85A is an additional oath of office, containing matter not included in Article 1, Sec. 6, and therefore prohibited by Article 37 of the Declaration of Rights.

The purpose and history of Article 37 was discussed by Chief Judge McSherry in the case of Davidson v. Brice, 91 Md. 681, 48 A. 52. It was there held that the omission from the Declaration of Rights of 1867 of the authority contained in every antecedent declaration of rights giving the Legislature the power to impose an official oath was deliberate, and its purpose was to permit the citizens of the State who had been in sympathy with the Confederate State of America to hold office without having to take the test oaths which had previously been required by the Legislature under the Constitution of 1864.

It may be noted that Article 37 does not prohibit candidates for office from being required to make affidavits as to their qualifications. It has been the practice and custom and statutory requirement for many years to demand from candidates at the time of filing for office certificates under oath with respect to their various qualifications. Such provisions are set out in Article 33 of the Code, and these sworn certificates have never been considered as additional oaths of office. The filing of such certificates is made a prerequisite to the placing of a candidate's name upon the ballots or in the voting machines. (Art. 33, Sec. 53(a) as enacted by Chapter 425 of the Acts of 1949). Their requirement is a method by which the Legislature is executing what has been held to be its inherent power to safeguard elections. Kenneweg v. Allegany County Commissioners, 102 Md. 119, 62 A. 249; Munsell v. Hennegan, 182 Md. 15, 31 A.2d 640; Hennegan v. Geartner, 186 Md. 551, 47 A.2d 393. The purpose is to keep from the ballots and voting machines the names of those who are ineligible for office.

In the case of Rasin v. Leaverton, 181 Md. 91, 28 A.2d 612, 614, this court upheld the action of the Board of Supervisors of Elections of Kent County in refusing to place upon the ballot the name of a candidate for state's attorney who was not constitutionally eligible for that office. In so holding, this court, speaking through Chief Judge Bond, referred to the case of Hummelshime v. Hirsch, 114 Md. 39, 79 A. 38, involving the election of a member of the City Council of Cumberland, and speaking of that case, said: 'It was held that the candidate was disqualified, the court considering that the obvious purpose of the provision, and of that requiring candidates for nomination at the primary election to swear that they were qualified to hold office, was to secure to voters or electors the right to vote for those qualified under the charter.' (Emphasis supplied.)

In Hummelshime v. Hirsch, 114 Md. 39, 79 A. 38, 45,...