Warfield v. Vandiver
| Decision Date | 23 March 1905 |
| Parties | WARFIELD, Governor, v. VANDIVER. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Anne Arundel County; James Revell and W.H. Thomas, Judges.
Mandamus by Murray Vandiver to compel Edwin Warfield, as Governor, to publish certain proposed amendments to the Constitution. From a judgment ordering the writ to issue, respondent appeals. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ.
Edgar H. Gans and Wm. S. Bryan, Jr., Atty.Gen., for appellant.
John Prentiss Poe and Bernard Carter, for appellee.
McSHERRY C.J.
In March, 1904, the General Assembly of Maryland by a three-fifths vote of all the members elected to each of the two houses adopted two proposed amendments to the state Constitution. One was the proposition to amend section 1 of article 1, relating to the elective franchise; and the other was a proposition to amend section 34 of article 3, and is known as the "Good Roads Amendment." Neither of these proposed amendments was submitted to the Governor for his approval or disapproval, but both, duly certified by the presiding officers of the two houses and by the secretary of the Senate and the chief clerk of the House of Delegates were, in obedience to a resolution passed by the Senate placed in the custody of the clerk of the Court of Appeals. Thereafter the Governor sent a message to the Senate, in which, amongst other things, his excellency stated that he did not approve of the elective franchise amendment, and that, as it had not been presented to him for his approval or disapproval, it could not be lawfully submitted to the qualified voters of the state for their adoption or rejection. He expressed his willingness to sign the good roads amendment. It being made the duty of the Governor under article 14 of the Constitution to order the publication of the bill or bills proposing an amendment or amendments for at least three months preceding the next ensuing general election at which any proposed amendment is to be submitted to the qualified voters of the state for adoption or rejection, the Hon. Murray Vandiver addressed to his excellency a letter on November 22, 1904, asking him whether the opinion he entertained, to the effect that a proposal to amend the Constitution could not be submitted to the people until it received his approval or until it had been adopted by the General Assembly over his veto, would lead him to refuse to cause the franchise and the good roads amendments to be published prior to the general election in 1905. In reply the Governor stated: "I will not cause to be published the proposed constitutional amendments referred to *** because they have not been submitted to me for my approval as Governor, and hence are not operative." On November 30th Mr. Vandiver filed in the circuit court for Anne Arundel county a petition against the Governor, and prayed therein that a writ of mandamus might be issued commanding him to publish the two proposed amendments in accordance with the requirements of article 14 of the Constitution. To this petition an answer was filed by the Governor. No issues are raised by the answer save the single one as to whether the proposition to amend the Constitution, though duly emanating from the General Assembly, must be approved by the executive, or be passed over his veto, before being submitted to the vote of the people. The circuit court ordered the mandamus to issue, and the respondent has appealed to this court.
The primary and fundamental question is this: Does a proposal to amend the Constitution, after having been adopted by the General Assembly in accordance with the provisions of article 14, require the approval of the executive, or must it be passed over his veto if he disapproves it, before the people are entitled to vote upon it? There is a second and subordinate inquiry, which will be stated and discussed later on. The case was argued with marked ability before the eight judges of this court, and after mature deliberation we all agree that a proposition to amend the Constitution, when formulated by the General Assembly in the manner prescribed by, and according to the requirements contained in, article 14, and when no measures which are distinctively and essentially legislative in their nature are appended to it, does not require the approval of the Governor before it can be voted on by the people; and that the Governor has no authority whatever to veto it. The conclusion just stated is sustained by both reason and authority. As much of the discussion will hinge on the language employed in article 14, that article, in so far as it relates to the pending questions, will now be transcribed:
The remaining provisions of the section refer to the duties of the Governor with respect to proclaiming the results of an election after the votes cast for and against a proposed amendment have been returned to him.
Upon the part of the appellee it is contended that the term "General Assembly," as used in the above-cited section, means only the two houses of the Legislature, the Senate and House of Delegates; whereas on behalf of the appellants it is insisted that the term signifies the General Assembly in its organic capacity, of which the Governor is a part. "The General Assembly may propose amendments to this Constitution." Unless the term "General Assembly," wherever used in the Constitution, universally and invariably includes, proprio vigore, the executive, it cannot be affirmed that it of necessity, and without more, embraces him when employed in article 14. It must first be established that the term never excludes him before it can be predicated of it that it always includes him. Now, even a casual reading of the Constitution will show that something in addition to the words "General Assembly" is requisite to include under that term the Governor. In fact, section 1 of article 3 of the Constitution defines the term "General Assembly." It reads thus: "The Legislature shall consist of two distinct branches--a Senate and a House of Delegates--and shall be styled the General Assembly of Maryland." This constitutional declaration as to what constituents or component factors make up the General Assembly explicitly excludes the Governor. But this is not all. Section 14 of the same article 3 provides that "the General Assembly shall meet on the first Wednesday in January, 1868, and on the same day in every second year thereafter and at no other time, unless convened by proclamation of the Governor." Section 15 declares that "the General Assembly may continue its sessions so long," etc.; and section 24 provides that "the General Assembly shall create, at every session thereof, a joint standing committee of the Senate and House of Delegates, who shall have power to send for persons and examine them on oath, and call for public or official papers and records," etc. Section 4 of article 4 declares that "any judge shall be removed from office by the Governor *** on the address of the General Assembly," etc. Here, then, are several instances, and there are quite a number of others that might be mentioned, in which the General Assembly is spoken of as wholly distinct from the executive; and hence it demonstrably follows that the term "General Assembly" does not of itself or implicitly comprehend the Governor. In other words, the General Assembly, composed of the Senate and House of Delegates, may exercise some powers without the concurrence or co-operation of the Governor; and therefore when it (the General Assembly) is authorized by the Constitution to perform a designated function there is involved no necessary inference that the Governor shall participate therein in order to give the Legislature's action potency.
If we go one step farther, and examine the phraseology of article 14 in contrast with prior Constitutions of this state, it will become apparent that the Governor has nothing to do with a proposed constitutional amendment except to order its publication for the period and in the manner designated in that article, and to proclaim its adoption after it has been approved by the people. Under the Constitution of 1776 the method of amending its provisions was by an act of assembly passed at one session and signed by the Governor, who then had no veto power, and who was required to affix his signature to all enactments adopted by the Legislature the publication of the act before the next general election, but no vote upon it by the people, and its ratification by the succeeding General Assembly. Amendments of the Constitution thus framed needed the signature, but not the approval, of the executive, because it was made his imperative duty to sign all...
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