Sun Cab Co. v. Cloud

• Decision Date: 15 April 1932
• Docket Number: 59.
• Citation: Sun Cab Co. v. Cloud, 162 Md. 419, 159 A. 922 (Md. 1932)
• Parties: SUN CAB CO. v. CLOUD ET AL.
• Court: Maryland Court of Appeals

159 A. 922

162 Md. 419

SUN CAB CO. v. CLOUD ET AL.

No. 59.

Court of Appeals of Maryland

April 15, 1932

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

Suit by William W. Cloud and others against the Secretary of State and the Board of Supervisors of Elections of Baltimore City in which the Sun Cab Company intervened. From an overruling of intervener's demurrer to the bill of complaint intervener appeals.

Decree affirmed, and cause remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Isaac Lobe Straus and John A. Farley, both of Baltimore, for appellant.

Philip B. Perlman, of Baltimore (Albert R. Stuart and W. Howard Hamilton, both of Baltimore, on the brief), for appellees.

BOND C.J.

The appellant, intervening as a defendant in a suit by the appellees against the secretary of state and the board of supervisors of elections of Baltimore city, has appealed from the overruling of its demurrer to the bill of complaint upon which the appellees seek a declaration that an act of assembly is now in force and effect, notwithstanding the signing and filing of petitions for a referendum and popular vote upon it, and an injunction restraining the referendum. The act is chapter 485 of the Acts of 1931, and by its terms the operators of taxicabs in cities and towns having populations of more than 50,000 persons are required to obtain permits from the Public Service Commission of the state, and to take out liability insurance policies or give bonds to indemnify persons whom they might injure. And the bill of complaint charges that the signatures attached to the petitions for the referendum fall short of the constitutional requirements, that many are forgeries, some of the names are of fictitious persons, others of persons who had died before the time of signing, others still of persons who, though residents in Maryland, lacked the requisite qualifications, and that the petitions do not bear the affidavits required. The secretary of state and the board of supervisors of elections appeared and answered the allegations of the bill.

Although the act was to take effect as law, in regular course, on June 1, 1931, its provisions were not to become operative until January 1, 1932. The Constitution, art. 16, § 2, provides that, if before the 1st day of June there shall have been filed with the secretary of state a petition to refer to a vote of the people any law capable of referendum as provided later in the article, the law shall be referred to the vote by the secretary of state, and shall not become an effective law until thirty days after approval by a majority of the electors voting thereon. Section 3 of the article fixes the requirements for referendum petitions. They must be signed by 10,000 qualified voters of the state, and, if more than half but less than the whole of that number sign, and their signed petitions are filed with the secretary of state before June 1st, the time for the law to take effect and for filing the remainder of the 10,000 signatures shall be extended to June 30th. Each form of petition signed must contain the affidavit of the person procuring the signature, that of his own personal knowledge each signature is genuine and bona fide, and that the signers are registered voters of the state and of the city or county, as the case may be, set opposite their respective names. How it shall be ascertained whether these constitutional requirements have been met by petitions filed, the referendum article has not prescribed. The bill of complaint avers that before and during the month of June forms of petitions bearing a total of more than 10,000 names, and pretended signatures, were filed in the office of the secretary of state, but that upon investigation the alleged forgeries and frauds were discovered, and that in fact signatures in the number required, duly supported by affidavits, were never filed with the secretary of state. Nevertheless, it is averred, as a result of the filing of the forms of petition, the act has so far been treated as suspended, its provisions have not yet been enforced, and the evils sought to be remedied by it have increased, to the detriment of the public, and also to that of taxicab owners and operators, including the complainants, who already conform to the requirements. The appellants sue as taxpayers, on behalf of themselves and any other taxpayers who may join as complainants, averring that, if the referendum should proceed upon the petitions so charged with fraud, the taxpayers will be put to wrongful expense for the publication of the referendum and the printing of it on the ballots of the next general election, in November of 1932. On these averments the interference of the court of equity by injunction has been sought, and a preliminary order has been passed declaring the petitions ineffectual for the purpose of suspending the operation of the act, and declaring the act to be in full force and effect, and a preliminary injunction has been ordered--all subject to rescission and dismissal upon motion of the defendants.

The demurrer of the Sun Cab Company, filed after its admission as a defendant, raises chiefly questions of jurisdiction. There are four general contentions: (1) That a court of equity could have no jurisdiction to issue the injunction, because the limitation on its jurisdiction in respect to subject-matter, that is, limitation to the relief of civil or property rights, excludes the restraining of political and election officials in the holding of an election, or interference in the process of legislation, in which the referendum sought would constitute one step, and, in so far as there may be any remedy in respect to those subjects, it must be by the writ of mandamus, at law; (2) that the complainants have no right as taxpayers to the relief they seek, even if equity might assume jurisdiction of such a subject-matter, because they show no special injury distinct and peculiar to themselves; (3) that the secretary of state, whose official residence is at Annapolis, cannot be sued, and cannot submit to be sued, in Baltimore city, and the court in Baltimore city cannot make its orders or decrees take effect outside of the city; and (4) that the bill of complaint is multifarious in combining the prayers for relief which it contains, both those as to subject-matter and those as to parties.

Counsel have given the court the benefit of exhaustive studies and reviews of decisions applying the principles argued on one side and the other. Some of those reviewed are not upon exactly analogous situations. In this case the subject of controversy is the claim or pretension of individuals who have signed and offered the petitions to a right to have an act of assembly submitted to the test of a popular vote. It is averred that the petitions are insufficient and the claim fraudulent, and the object of the suit is to prevent this action of private individuals from being given an effect to which it is not entitled if the averments of fact are true. The subject of controversy has some relation to a popular election or vote, some relation to performance of duties of administrative officers, and some relation to legislation. But the attack is directly and principally upon the claim of the private individuals, the claim to a right to the use of the governmental processes. And that is essentially a judicial controversy, as the parties agree. The court is not asked to interfere in any discretionary performance of duties by officials; the officials would be, in this instance, only ministerial agents or channels for the proceeding which the proponents seek to initiate. Their relation, or the relation of the state as a whole, is at this stage only that of a passive medium; and it is appropriate that in such a controversy the private individuals or corporations making the claim to the referendum should be admitted as parties defendant. And the court, again, is not asked to interfere directly in an election or in the process of legislation; to repeat, it is rather asked to determine now whether private individuals are such as may, under the Constitution, require an election or popular vote, or interfere in the processes of legislation. And many of the decisions cited have dealt with controversies of a different kind, immediately connected with activities committed to the executive or legislative departments of the government.

It is of course, true that the courts cannot invade the fields of government committed to the other departments, and consequently that it cannot, generally speaking, interfere to control the holding of elections, in the usual meaning of that term, or interfere in any part of legislation. Hardesty v. Taft, 23 Md. 512, 530, 87 Am. Dec. 584; Hamilton v. Carroll, 82 Md. 326, 33 A. 648; McCrary, Elections, § 386; High, Injunctions, § 1250. But it is not true that equity can never interfere with the taking of a popular vote. The contrary is familiar, well-settled law. In Graf v. Hiser, 144 Md. 418, 125 A. 151, to take one of many illustrations available, this court held that an injunction should have issued to restrain a popular referendum to determine whether an act of assembly providing for a special taxing district in Prince George's county should take effect as law. The required preliminary notice had not been given in that case. And the injunction ordered was to restrain public officers, the "District Citizens Committee," and the county commissioners of Prince George's county, and was to interfere in legislation in so far as the popular vote constituted a step in the legislative process. Brawner v. Supervisors, 141 Md. 588, 603, 119 A. 250. So the county commissioners of Montgomery county were held...