Stuart v. Board of Sup'rs of Elections for Howard County

• Decision Date: 09 October 1972
• Docket Number: No. 105,105
• Court: Maryland Court of Appeals
• Parties: Mary Emily STUART v. BOARD OF SUPERVISORS OF ELECTIONS FOR HOWARD COUNTY et al.

Page 440

266 Md. 440

295 A.2d 223

Mary Emily STUART v. BOARD OF SUPERVISORS OF ELECTIONS FOR HOWARD COUNTY et al.

No. 105.

Court of Appeals of Maryland.

Oct. 9, 1972.

Arold H. Ripperger, Baltimore (Ann Llewellyn McKenzie, Kathryn Scates Levedahl and Mary Ellen Brooke, Baltimore, on the brief), for appellant.

Emma A. Clarke, Baltimore, on the brief, amicus curiae, The Women's Law Center.

Ruth Bader Ginsburg, Melvin L. Wulf, Brenda Feigen Fasteau, New York City and Elsbeth L. Bothe, Baltimore, on the brief, amici curiae, American Civil Liberties Union.

Albrecht, Selma W. Samols, Kensington, on the brief, amicus curiae, Lorraine Alice Underwood and Dennis Lichti.

E. Stephen Derby, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore and Charles E. Hogg, Ellicott City, on the brief), for appellees.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

MURPHY, Chief Judge.

Mary Emily Stuart and Samuel H. Austell, Jr., were married in Virginia on November 13, 1971 and, shortly thereafter, took up residence in Columbia, Howard County, Maryland. In accordance with the couple's oral antenuptial agreement, Stuart continued, after the marriage, to use and be exclusively known by her birth given ('maiden') name and not by the legal surname of her husband.

On March 2, 1972, Stuart undertook to register to vote in Howard County in her birth given name. After disclosing to the registrar that she was married to Austell but had consistently and nonfraudulently used her maiden name, she was registered to vote in the name of Mary Emily Stuart.

On March 16, 1972 the Board of Supervisors of Elections for Howard County notified Stuart by letter that since under Maryland law 'a woman's legal surname becomes that of her husband upon marriage,' she was required by Maryland Code, Article 33, § 3-18(c) to complete a 'Request for Change of Name' form or her registration would be cancelled. Stuart did not complete the form and her registration was cancelled on April 4, 1972.

Stuart promptly challenged the Board's action by two petitions filed in the Circuit Court for Howard County, the first entitled 'Petition to correct (the voter) registry,' and the second 'Petition to restore name to registry of voters in Howard County.' In each petition Stuart maintained that she was properly registered to vote in her birth given name, that being her true and correct name; that under the English common law, in force in Maryland, a wife could assume the husband's name if she desired, or retain her own name, or be known by any other name she wished, so long as the name she used was not retained for a fraudulent purpose; and that since the only name she ever used was Mary Emily Stuart the Board had no right to cancel her voter registration listed in that name.

The petitions were consolidated and an evidentiary hearing was held before Judge T. Hunt Mayfield on May 8, 1972. Evidence was adduced showing that the oral antenuptial agreement between Stuart and Austell that she would retain her maiden name was a matter of great importance to both parties. Stuart testified that her marriage to Austell was 'based on the idea that we're both equal individuals and our names symbolize that.' There was evidence that prior to the marriage lawyers were consulted on the parties' behalf who indicated that Stuart had the right to retain her own name after the marriage. Stuart testified, and Austell corroborated her testimony, that she would not have gotten married 'if * * * (the marriage) would have jeopardized my name.' She testified that after the marriage she continued to use her own name on charge accounts, on her driver's license and Social Security registration and in 'every legal document I've ever had.' 'Everybody' she said, 'knows me by the name Mary Stuart.'

There was evidence showing that the practice of the Board requiring a married woman to use the surname of her husband dated back to 1936; that the practice was a uniform one throughout the State and was adopted to provide some trail of identification to prevent voter fraud; that if a married woman could register under different names the identification trail would be lost; and that the only exception permitted to the requirement that married women register under their husbands' surnames was if the name was changed by court order.

By opinion filed May 10, 1972, Judge Mayfield concluded 'that a person may adopt and use any name chosen in the absence of fraudulent intent or purpose'; that the use by Stuart of her maiden name was without fraudulent intent or purpose; that it is the law of Maryland that 'the use by the wife of the husband's surname following marriage, while the same have been initially based upon custom and usage, is now based on the common law of England, which law has been duly adopted as the law of this State'; that under the provisions of the Code, Article 33, § 3-18(a)(3) clerks of courts, as therein designated, are required to notify Boards of Supervisors of Elections of the 'present names' of females over the age of eighteen years residing within the State 'whose names have been changed by marriage'; that by subsection (c) of § 3-18, the Boards, upon being advised of a 'change of name by marriage,' are required to give notification 'that such * * * change of name by marriage * * * has been reported to the board, and shall require the voter to show cause within two weeks * * * why his registration should not be cancelled'; that § 3-18 appeared 'to be in conformity with the common law,' as espoused in such cases as People ex rel. Rago v. Lipsky, 327 Ill.App. 63, 63 N.E.2d 642 (1945) and Forbush v. Wallace, 341 F.Supp. 217 (M.D.Ala.1971), aff'd per curiam 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed.2d 246 (1972); that the 'statutory requirements (of § 3-18) are in accordance with the law which says that upon marriage the wife takes the surname of her husband'; that the provisions of § 3-18 do not deprive Stuart of her right to use her maiden name, nor of her right to vote, but require only that she 'register to vote under her 'legal' name, * * * based upon the broad general principle of the necessity for proper record keeping and the proper and most expedient way of identifying the person who desires to vote.' ¹

From the court's order denying her petitions to correct the voter registry and to restore her name thereto, Stuart has appealed. She claims on appeal, as she did below, that a woman's surname upon marriage does not become that of her husband by operation of the common law in force in Maryland and that nothing in the provisions of § 3-18(a)(3) and (c) mandates a contrary result.

What constitutes the correct legal name of a married woman under common law principles is a question which has occasioned a sharp split of authorities, crystalized in the conflicting cases of State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N.E.2d 616 (1961), relied upon by Stuart, and People ex rel. Rago v. Lopsky, supra, adopted by the lower court as its principal authority for denying the petitions. Green approved the voter registration of a married woman in her birth given name which she had openly, notoriously and exclusively used subsequent to her marriage, and held that she could use that name as a candidate for public office. The court held:

'It is only by custom, in English speaking countries, that a woman, upon marriage, adopts the surname of her husband in place of the surname of her father.' Id. 177 N.E.2d at 619 (Emphasis in original.)

Lipsky refused to allow a married woman to remain registered to vote under her birth given name on the basis of

'* * * the long-established custom, policy and rule of the common law among English-speaking peoples whereby a woman's name is changed by marriage and her husband's surname becomes as a matter of law her surname.' Id. 63 N.E.2d at 645 (Emphasis supplied.)

Cases tending to support the rationale of Green are Lane v. Duchac, 73 Wis. 646, 41 N.W. 962, 965 (1889); Rice v. State, 37 Tex.Cr.R. 36, 38 S.W. 801, 802 (1897); Succession of Kneipp, 172 La. 411, 134 So. 376, 378 (1931); State ex rel. Bucher v. Brower, Ohio Com.Pl., 7 Ohio Supp. 51, 21 Ohio Op. 208 (1941); Wilty v. Jefferson Parish, 245 La. 145, 157 So.2d 718, 727 (1963) (Sanders, J., concurring). Cases tending to support the Lipsky theory are Chapman v. Phoenix National Bank, 85 N.Y. 437, 449 (1881); In re Kayaloff, 9 F.Supp. 176 (S.D.N.Y.1934); Freeman v. Hawkins, 77 Tex. 498, 14 S.W. 364, 365 (1890); Bacon v. Boston Elevated Ry. Co., 256 Mass. 30, 152 N.E. 35, 36 (1926); Wilty v. Jefferson Parish, supra, 157 So.2d at 723-724 (Hamlin, J.); Forbush v. Wallace, supra, 341 F.Supp. at 221-222. ²

We think the lower court was wrong in concluding that the principles enunciated in Lipsky represent the law of Maryland. We have heretofore unequivocally recognized the common law right of any person, absent a statute to the contrary, to 'adopt any name by which he may become known, and by which he may transact business and execute contracts and sue or be sued.' Romans v. State, 178 Md. 588, 597, 16 A.2d 642, 646. In the context of the name used in an automobile liability insurance contract, we approved the consistent nonfraudulent use by a married woman of a surname other than that of her lawful husband in Erie Insurance Exchange v. Lane, 246 Md. 55, 227 A.2d 231. Citing with approval Everett v. Standard Acc. Ins. Co., 45 Cal.App. 332, 187 P. 996 (1919), we summarized its holding as follows:

'The court * * * held that because the insured had been known as Everett for twenty-two years before the policy was issued, a representation that his name was Everett was not a misrepresentation, although his name before had been Cowie, since a man may lawfully change his name without resorting to legal proceedings and by general usage or habit acquire another.' Erie 246 Md. at 62-63, 227 A.2d at 236.

If a married woman may lawfully adopt an assumed name (which,...