Williams v. Broening

Decision Date21 November 1919
Docket NumberNo. 90.,90.
Citation108 A. 781
PartiesWILLIAMS et al. v. BROENING, Mayor, et al.
CourtMaryland Court of Appeals

Appeal from Circuit Court of Baltimore City; James P. Gorter, Judge.

"To be officially reported."

Action by Lucy J. Williams, and others against William F. Broening, Mayor, and others. From order refusing to grant an injunction, plaintiffs appeal. Reversed and remanded.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ.

Arthur W. Machen, Jr., Julian S. Jones, and Joseph C. France, all of Baltimore, for appellants.

Roland R. Marchant, City Sol., William H. Maltbie, and Alfred S. Niles, all of Baltimore, for appellees.

Wm. Edgar Byrd, of Baltimore, for Real Estate Board of Baltimore City, and Osborne I. Yellott, of Baltimore, for Home Builders' Ass'n, amici curiae.

ADKINS, J. This is an appeal from the refusal of the circuit court of Baltimore city to

enjoin the mayor and city council of Baltimore from continuing the publication of an advertisement of a proposed amendment to the charter of said city relating to the taxation of real and personal property in the territory annexed to Baltimore city by chapter 98 of the Acts of 1888, and the supervisors of election of said city from placing upon the official ballot to be used at the general election to be held in said city on November 4, 1919, and from using any public money or funds for defraying the costs of such advertisement or of printing said proposition on the official ballots. The proposed amendment provides that:

The charter of Baltimore city shall be amended by repealing all of section 4 of article 1 of said charter and substituting in lieu thereof the following:

4. All property, real and personal, situated or held in the territory annexed to Baltimore city by the Acts of 1888, chapter 98, shall be subject to levy, taxation and assessment in the same manner and form and at the same rate of taxation as property of similar character or description within the limits of said city as they existed prior to the passage of said act may be subject.

The right to submit the proposed amendment is contested by the appellants on the following grounds, as alleged by them:

(1) The charter of Baltimore city supposed to have been adopted under article 11a of the Constitution, known as the home rule amendment, was never validly adopted because:

(a) It was not published by the mayor, as required by article 11a, in two newspapers of general circulation published in the city of Baltimore within 30 days after it was reported to him by the charter commission. It was published in the Daily Record and in the Municipal Journal, and the contention of appellants is that neither of these papers was a newspaper of general circulation.

(b) It was not submitted to the voters of said city at the next general or congressional election after the report of said charter to the mayor of Baltimore as required by said article 11a, in that the four new wards added by the act of 1918 were not included with the rest of the city in voting on the proposition.

(2) The proposed measure is in excess of the power to amend the charter conferred by article 11a, § 5, even if the new charter was validly adopted.

It is manifest, if either of these objections was well taken, the injunction should have been granted. We shall first dispose of the first objection.

Every intendment should be made in favor of the validity of the charter after the lapse of so long a time since it went into operation. Until October of the present year no question seems ever to have been raised as to the sufficiency of the publication of the charter. In the meantime a mayor and city council have been elected, and we cannot say what complications might arise if the charter should be stricken down.

We do not regard the provision in the Constitution as to the character of newspapers in which the charter was to be published before submission so far mandatory in its nature as to render the charter after its adoption subject to attack by reason of a question as to the extent of the circulation of the papers selected by the mayor as mediums of publication unless it be shown that the failure to comply strictly with the constitutional provision affected the result of the vote on the proposition.

In Carr v. Hyattsville, 115 Md. 545, 81 Atl. 8, the statute under consideration was one submitting to the voters of Hyattsville the question whether certain streets should be improved. The statute provided that for the special election to determine said question ballots should be prepared having printed on them "For the Act to Improve the Streets" and "Against the Act to Improve the Streets." But the ballots voted at the election had printed on them the words "For the Road Bill" and "Against the Road Bill." The majority of the ballots cast at the election were marked "For the Road Bill," and, after canvassing the vote, the mayor and common council declared the act to be in full force and effect. Acting under the power conferred by the act, the mayor and common council passed an ordinance for the improvement of the roadbed of Spencer street, one of the streets of said municipal corporation, and also providing for notice to the owners of abutting property and for the assessment for the cost of improvements against such property. A taxpayer filed a bill to enjoin the mayor and common council from making any assessment against his property for the improvement of said roadbed, and from enforcing any assessment against his property for that improvement, on the ground that the act had never become effective and operative, because the ballots cast at the election were not prepared in strict conformity to the requirements of its provisions. The defendant demurred to the bill, and the lower court sustained the demurrer. This court approved the ruling of the lower court, and in passing on the question at issue said:

"The simple and sole question in the case is this: Did the preparation and voting of the ballots in the manner in which they were prepared and voted prevent the act from becoming a valid and effective law? If so, it can only be because the provisions of the act relating to the form of the ballot are mandatory and to be strictly observed. We do not think that the form of the ballot as prepared was an essential departure from the requirements of the act, and it would seem to be reasonably certain that the voters understood that they were voting for or against the approval of this particular act, and did approve it by a majority vote.

"The court ought not to set aside their clearly expressed will, unless required to do so by some imperative rule of law. Mr. McCrary, in his work on Elections, § 100, says: 'If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits or affects the result of the election or not. Such a statute is imperative, and all consideration touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, that statute simply provides that certain acts or things shall he done within a particular time, or in a particular manner, and does not declare Unit their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.' The rule is thus stated in Pain on Elections, § 498: 'In general, those statutory provisions which fix the day and the place of the election and the qualification of the voters are substantial and mandatory, while those which relate to the mode of procedure in the election, and to the record and return of the results, are formal and directory. * * * The rules prescribed by the law for conducting an election are designed chiefly to...

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9 cases
  • State Tax Commission v. Wakefield
    • United States
    • Maryland Court of Appeals
    • June 13, 1960
    ...A. 282 ('partial exemption'); Lauer v. City of Baltimore, 1909, 110 Md. 447, 457, 73 A. 162, quoting from Sindall; and Williams v. Broening, 135 Md. 226, 236, 108 A. 781. But even when we say that the Farm Assessment Act creates a partial exemption from ad valorem taxation of land used for ......
  • Montgomery County v. Board of Supervisors of Elections for Montgomery County, 95
    • United States
    • Maryland Court of Appeals
    • September 19, 1986
    ...A.2d 305; Schneider v. Lansdale, supra, 191 Md. 317, 61 A.2d 671; Jones v. Broening, 135 Md. 237, 108 A. 785 (1919); Williams v. Broening, 135 Md. 226, 108 A. 781 (1919); Montgomery County v. Board of Supervisors of Elections, 53 Md.App. 123, 451 A.2d 1279, cert. denied, 294 Md. 352 (1982).......
  • Maryland-National Capital Park and Planning Commission v. Randall
    • United States
    • Maryland Court of Appeals
    • January 12, 1956
    ...validity of proposed constitutional or charter amendments, and have enjoined submission of an invalid charter amendment. Williams v. Broening, 135 Md. 226, 108 A. 781; Jones v. Broening, 135 Md. 237, 108 A. 785; Hillman v. Stockett, 183 Md. 641, 39 A.2d 803. In the cases cited there were pr......
  • McGinnis v. Board of Sup'rs of Elections of Harford County
    • United States
    • Maryland Court of Appeals
    • September 1, 1966
    ...districts of substantially equal population has cured the existing unconstitutionality, and (b) that under cases such as Williams v. Broening, 135 Md. 226, 108 A. 781; Jones v. Broening, 135 Md. 237, 108 A. 785; Sun Cab Co. v. Cloud, 162 Md. 419, 159 A. 922, and Schneider v. Lansdale, 191 M......
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