Hardesty v. Taft

23 Md. 512, 1865 Md. LEXIS 45

• Court: Court of Appeals of Maryland
• Decided: November 2, 1865
• Status: Published

Opinion

Weisel, J.,

delivered the opinion of this Court:

The peculiar character of the bill in this case, may be learned from the prayer with which it concludes. In the language of the appellants’ brief, “The bill prays for the writ of injunction against the officers of registration for Prince George’s county, enjoining and strictly prohibiting them from returning copies of their books or lists of quali-* tied and registered voters to the 'clerk of the Circuit Court for said county, and the judges of election of the several election districts, and the writ of injunction against Fred-* crick Sasscer, clerk of the Circuit Court for Prince George’s county, enjoining and strictly prohibiting him from receiving a copy of the said books or lists of'legal and qualified voters, and the writ of injunction against the judges of election for the said county, enjoining and strictly prohibiting them from receiving a copy of the said books or lists of qualified voters, and from regarding the said lists of legal and qualified voters, in determining who are legal and qualir? fied voters, entitled to vote at the coming election, and that they may be directed and commanded to conduct the said election,, on the 1th of'November 1866, according to the Constitution and laws A force prior to the passage of the Act of 1865, Gh, 114, and as if the said law had not been passed, or the said lists of legal and qualified voters made put by the said officers of registration.”

Without stopping at this point to inquire whether equity will lend its aid to accomplish the objects sought by this bill, we state that this Court has already passed upon the validity of the law of 1865, ch. 114, for the registration of voters, so far as'it and the 4 th section of the 1st Article of the Constitution were charged to be in conflict with the 10th sectiou of the 1st Article of thp Constitution of the United States, or with the Bill of Rights of Maryland. The views of the Court upon' this branch of the inquiry, have been expressed in the opinion filed in the case of Anderson vs. BaJeer, et al., determined at the presept term, and they need not be here repeated.

The law is assailed however, in this proceeding, as void under the 28th section of the 3rd Article of the Constitution of Maryland, which makes it the duty of the General Assembly to enact public general laws, in articles and sec-* tions, ⅛ ⅛⅜ same manner as the Code i.s arranged; and ife is alleged that this requirement is vital, and was disregarded by the Legislature in "the passage of this law.

The first clause of this section provides for those properties of a general statute law of Maryland, which may he regarded as necessary to its validity. It gives the style of the law ; the law must bo passed by original bill; it must embrace but one subject, and that shall be described in the title; and no law or section of law shall be revived or .amended by title or section only. These are regarded as requisites in the structure of such a law, necessary to its being; and yet only to a reasonable intent; for notwithstanding the mandatory nature of the language used, this .Court has, in various instances, given to the like provision in the Constitution of 1851, (Art. 3, sec. IT,) a liberal construction, to effectuate, and not to destroy, the legislative will. A reference merely to these cases is deemed sufficient, viz: Davis vs. The State, 7 Md. Rep., 159, 160. Keller vs. The State, 11 Md. Rep., 531, 532. Parkinson vs. The State, 14 Md. Rep., 193, 194.

The residue of the section relates to another and less important matter in the frame-work of the law, looking more to convenience in adapting it to codification, than to its .operative effect; and the language assumes the directory form. The laws having been codified under former enactments, the Constitution contemplates the continuance of the system, and to save time, labor and expense, the duty is imposed upon the Legislature, in amending existing laws, or enacting public general laws, to observe certain forms, to adapt them to the Code arrangement. Regarding a compliance with this provision as not essential to the validity of a public general law, yet viewing this Act of Assembly in connection with chapter 159 of the same session, we think that the directions of the Constitution, in this respect, have been substantially and sufficiently complied with. That enacts that a new Article shall be added to the Code, entitled “registration,” under which shall be arranged, by titles and sections, as in other Articles of the Code, this registration law, and the other laws to be passed "by the General Assembly, on the subjects' of the registry of births, marriages and deaths, and such other subjects of registration as the Legislature may enact and direct. This appears to us to be a sufficient compliance with the directions of the Constitution. A new Article under the name of “registration” is enacted, and the titles or subjects in it are declared in their order — births, marriages, deaths, and voters; and the law under consideration was passed in sections. All that is essential for its easy arrangement in the Code is thus provided for. Until this codification shall have been ordered by the Legislature, the law, in its present form, will occupy its place in the published volume for the year, like other laws of the same session, and will be as readily found and understood, as if it had been passed, with the other laws referred to in chapter 159, in one law, with chapter, titles, and sections, &c., as above directed. "We do not, therefore, consider the law as affected by the objection which has been urged against its validity on this ground.

The law, then, being operative, the other causes of complaint are matters pertaining to its execution.

It is said the officers of registration in Prince George’s county, were not qualified as the law directs; and therefore their acts are void, and the Oourt should remit the election to the judges, of election. The Constitution provides, that after the General Assembly shall have passed an Act of registration, and the same shall have teen carried into effect, no person shall vote unless his name appears on the register, and the registration shall be evidence of the qualification of the voter. Art. 1, sec. 2. And the law itself declares, that .the judges of election shall not receive or deposit the ballot of any person until they have found his name on the list or register of qualified voters, and have checked it thereon. (Sec. 18.) If it is a valid, general law, and if registrars have been appointed for every county of the State and city of Baltimore, and have entered upon and are discharging their duties, the law is carried into effect; and no Court Ras tlie power, and such could not t>e the effect of any order or decree it might pass, to change the evidence of the voter’s qualification in one sectioii or county of the State, and clothe the judges of election therein with powers not conferred hy the Legislature, hut expressly taken away. Whatever may he the effect, in a county or election district, of a registration of voters by officers not qualified as the law directs, it is certainly not the province of this Court to order, hy injunction, an election therein in a manner different from that designed hy the law.

But we think there is no defect in the qualification of the officers of registration, hy taking the required oath of office before a justice of the peace, instead of the clerk of the Circuit Court for the county. Laws to carry on the Government, are to receive a liberal construction, to effectuate the objects designed; and if the legislative purpose can he arrived at, in the absence of express language, that meaning is to be observed and obeyed. At all events, it would not be a safe or wise rule to substitute another intent, equally if not more doubtful, in order, not to support the Act of a public agent, but to annul it. One law of the State (1 Code, Art. 68, secs. 6 and 7) provides, that all officers (other than those mentioned in the preceding sections) elected or appointed to any office of trust or profit under the Constitution and laws of the State, including mayors, &c., shall take and subscribe the said oath (if in a county) before the clerk of the Circuit Court of the county, or before one of his sworn deputies; and the clerk shall procure and keep in his office a well bound hook, to be called the test book, in which the oath shall he printed or written conspicuously, and the person taking or subscribing the same, shall annex to his signature the title of the office to which he shall have been appointed or elected, and the date of his signature. Now the question is, were the officers of registration to take the oath of office before the clerk? If so, they were to subscribe it in the clerk’s test book. Tet the registration Act (sec. 1) requires them to take the oath and subscribe the same in the booh of registration for their respective ioards or election districts, without expressly specifying before what officer. These officers were appointed for each ward and election .district. Their duties were to be performed in such ward or district, and not beyond it. The registration books were to be furnished them in each ward of the city of Baltimore, and election district of each county,(sec, 4.) These books were to continue in their possession’ not later than the' day of election, and then to be deposited with the clerk of the Circuit Court for safe keeping. Their appointments were temporary, and their duties specific— the' same with or analogous to those of judge's of election. Convenience therefore dictated that they should qualify in the district or ward where their duties were' to be performed, and where the books of registration, in which the law directed them to subscribe the oath,, were to be kept during the performance of said duties. The law does not provide that the oath should be duplicated, which would be the case if taken before the clerk of Courts. This view alone, without enlarging upon the subject, or supporting it by analogous cases, is sufficient to satisfy the Court that the registrars' wer'e properly qualified by taking and subscribing the oath in the registration books,, before any one having authority to administer oaths,

If the registrars have, in the execution of the law, mis-; conceived their duty in any respect, or violated their trust by propounding to applicants for registration, any questions which, a due examination into' their qualification did not warrant, it is hot for a Court of Equity to apply the remedy by injunction, an'd arrest their proceedings, because one or more may not have been fairly dealt with. Besides,if their names were recorded, and they took the oaths required, (as is alleged in the bill,) days were allotted by the law for the correction of errors and supplying omissions,- and the complainants had the time and opportunity to resort to the registrars, and claim from'them a final disposition of their cases. Without availing themselves of the mode' tiras afforded them by law, or waiting for the appointed time, they filed a bill for the injunction prayed for in this case. A Court of Equity could not, under such circumstances, entertain the application.

It is averred that some of the officers of registration, whilst acting as such, held other offices of profit under the Constitution or Laws of the State, and that they were therefore precluded from exercising the functions of officers of registration, by the 35th Article of the Declaration of Rights, which declares, “that no person ought to hold at the same time, more than one office of profit, created by the Constitution or Laws of this State.” The cases cited in support of this position, wore suits at law against officers, irregularly or improperly appointed or qualified, or having no jurisdiction, for damages for acts done by them in the discharge of official duties, and they relied upon their office in justification of their proceedings; and the Courts held that this may be a good defence so far as third persons were concerned, but to justify proceedings in a case brought by the person injured against an officer, the defendant must show that he was an officer, de jure, and not simply de facto. But this is an application to a Court of Equity, to stop the proceedings of a class of officers in the county, charged with the registering of its voters, because a few of the officers, in certain districts, were not proper subjects of appointment. To yield to such an application would manifestly bo stretching the sound discretion of the Court beyond all limits. And even if the application were to arrest the particular proceedings of the persons alleged to be illegally exercising the functions of the office, the averments of the bill, resting upon proofs exhibited with them, should be distinctly supported by such proofs. In this case the exhibits, while they show other appointments and qualifications thereunder, at other and anterior times, do not show or satisfy the Court, that at tho time of exercising their functions as officers of Registration, they were also in office under their other appointments. A presumption, might fairly he raised in support of the continuance of Government, that if the officers were in conflict, a resignation of the one alleged to he the constitutional harrier to the other, had previously taken.place. Nor do we design to he understood in what has fallen from us on this point of objection', as expressing an opinion upon the nature or effect of the 'official acts of a person holding' two offices of profit at the same time under the Constitution or Laws. The case, as presented to us in the hill before us, does not raise this inquiry.

We have thus disposed of all the causes or grounds relied upon in the bill, for the exercise of the preventive remedy by injunction, treating the application as one that might he addressed to the sound discretion of a Court of Equity.

On this branch of the inquiry, it seems to the Court very clear that a Court of Equity cannot he invoked to prevent the performance of political duties, like those committed to the officers of registration under the law. The willful, fraudulent or corrupt refusal of a vote by Judges of Election, or a like denial of registration by the officers appointed to register votes, (which is the same thing,) can he adequately compensated for in damages at law. Bevard vs. Hoffman, 18 Md. Rep., 484. The writ of injunction will not he awarded in doubtful or new cases, not coming within well established principles of equity. Bonaparte vs. Camden & Amboy Rail R. Co., 1 Bald., 218. Each voter has a separate and distinct remedy for the wilfully improper deprivation of his vote; and the joinder of others like circumstanced or injured, as complainants in equity, on the ground of avoiding a multiplicity of suits, will not avail to afford equitable relief. To interfere in the mode asked for by the complainants, would he to stop a popular election in one portion of the State, and thus arrest, as to it, the wheels of Government. Eor irregularities in the conduct of an election, for receiving illegal or rejecting legal votes, and for the correction of consequences resulting therefrom, the law provides appropriate remedies and modes of procedure. Such, matters are not the subjects of equitable jurisdiction.

(Decided November 2nd, 1865.)

Order refused and bill dismissed, with costs to the defendants.