Warfield v. Vandiver

60 A. 538, 101 Md. 78, 1905 Md. LEXIS 66

• Court: Court of Appeals of Maryland
• Decided: April 5, 1905
• Status: Published

Opinions

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 sec. one of Art. one relating to the elective franchise; and the other was a proposition to amend section thirty-four of Article three, 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 Art. 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 the twenty-second, nineteen hundred and four, 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 of nineteen hundred and five. 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 the thirtieth 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 Art. 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 a 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 Art. 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. "Section 1. The General Assembly may propose amendments to this Constitution; provided, that each amendment shall be embraced in a separate bill, embodying the article or section, as the same will stand when amended and passed by three-fifths of all the members elected to each of the two houses, by yeas and nays, to be entered on the journals with the proposed amendments. The bill or bills proposing amendment or amendments shall be published, by order of the Governor, in at least two newspapers in each county, where so many may be published and where not more than one may be published then in that newspaper, and in three newspapers published in the city of Baltimore, one of which shall be in the German language, once a week for at least three months preceding the next ensuing general election, at which the proposed amendment or amendments shall be submitted in a form to be prescribed by the General Assembly, to the qualified voters of the State for adoption or rejection." 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 the House of Delegates; whereas on behalf of the appellant it is insisted that the term signifies the General Assembly in its organic capacity, of which the Governor is a part. "The GeneralAssembly 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 andwithout 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 one of Article three 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 fourteen of the same Article three provides that "The General Assembly shall meet on the first Wednesday of 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 fifteen declares that "The General Assembly may continue its sessions so long," etc.; and section twenty-four 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 four of Article four 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 Art. 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 that 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 Acts of the Legislature. To that extent, but with no discretion whatever, he participated in propounding and in adopting amendments of the organic law. He had no power to withhold his signature from any proposed amendments. By the Constitution of 1851, which was the second one adopted in Maryland, its provisions could only have been amended by a convention assembled for that purpose pursuant to Art. 11. The Governor was given no veto power. The Constitution of 1864 contained two modes by which amendments could be made, both of which were contained in Art. II. By sec. 1 of that Art. it was declared that the "General Assembly may propose any amendment which shall be agreed to by three-fifths of all the members elected to both houses." The section then required the proposed amendment to be published and subsequently to be voted on by the qualified electors at the next general election. By the second section amendments were permitted to be made by a convention convened for that purpose but before any amendment so proposed could become effective it was necessary, under section three, that it should be adopted by a vote of the people. Under the Constitution of 1864 the Governor had no veto power. In not a single instance had the Governor under the Constitutions of 1776, 1851 and 1864 any authority whatever to veto a proposal to amend the organic law; and it was not until the Constitution of 1867 went into effect that "to guard against hasty or partiallegislation," not hasty or partial amendments to the Constitution, the Executive was clothed with a veto power.

Upon turning to and reading Art. 14 it must be conceded that its language is clear; explicit and unambiguous. It does not say that the General Assembly and the Governor, or the General Assembly with the approval of the Governor, but "The GeneralAssembly may propose amendments to this Constitution, provided, that each amendment shall be embraced in a separate bill, etc." Such a proposal is not legislation. It is required to be passed by "three-fifths of all the members elected to each of the two houses," whilst a majority only is needed for the adoption of legislative measures; and even after receiving the prescribed number of votes in both houses it continues to be a bill and never becomes a law, though if adopted by the vote of the people it is thereafter incorporated in the Constitution. "The bill or bills proposing amendment or amendments shall be published by the order of the Governor, etc." The thing to be published is a bill proposing an amendment. Now, whatever legislation the Governor has a right to sign and does sign, ceases when signed by him, to be a bill and becomes a law. There are three ways in which a bill may become a law. First, by being signed by the Governor; secondly, by being passed over his veto; and thirdly, by his failure to return the bill within six days after receiving it, unless by adjournment the General Assembly prevents its return. To make this more clear it may not be amiss to quote sec. 17 of Art. two of the Constitution. It is in these words: "To guard against hasty and partial legislation and encroachments of the legislative department upon the co-ordinate executive and judicial departments, every bill which shall have passed the House of Delegates and the Senate shall, before it becomes a law be presented to the Governor of the State; if he approve he shall sign it, but if not he shall return it with his objections to the house in which it originated, which house shall enter the objections at large on its journal and proceed to reconsider the bill; if, after such reconsideration, three-fifths of the members elected to that house shall pass the bill, it shall be sent with the objections to the other house by which it shall likewise be reconsidered, and if it pass by three-fifths of the members elected to that house, it shall become a law * * * If any bill shall not be returned by the Governor within six days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he signed it, unless the General Assembly shall, by adjournment, prevent its return, in which case it shall not be a law * * *." The distinction between a bill and a law is carefully maintained throughout the aforegoing section; and the plain and clear provisions of the section make it morally certain that it has no application to a proposed Constitutional Amendment. This is the only provision in the organic law except section thirty of Article three, which confers upon the Governor authority to sign or veto a bill. If a proposal to amend the Constitution is not embraced by either of those sections, then Article 14 is unaffected by them; and as its terms do not include the Governor he has no power to approve or veto a measure propounded under it. The right which the Governor has to sign or to veto is strictly confined to bills which when signed, or if vetoed, when passed by the requisite vote over the veto, become laws. Hence, the test as to whether a particular measure adopted by the General Assembly is one which the Governor must sign to give it efficacy, is the fact that when signed it becomes, at once and in virtue of being signed, a law and thereupon ceases to be a bill. "Every bill * * * shall, before it becomes a law, be presented to the Governor, etc." If he sign it, it will become a law. If he does not approve it, and the two houses pass it by a three-fifths vote over his veto it will also become a law. Obviously, then, the measures which the Governor has the authority to sign or veto, are only such as when signed, or when passed over his veto become laws. A bill proposing an amendment to the Constitution and nothing more, would not become a law if signed by the Governor nor would it become a law if passed by three-fifths vote over his veto; because it is required to be submitted to the people for their adoption or rejection; and not until it shall appear that a majority of the votes cast at the polls on such proposed amendment are in favor thereof can the Governor proclaim that it has been "adopted by the people of Maryland as part of the Constitution." It is not operative unless adopted by the people — it is a mere proposal to amend until sanctioned by them; and when adopted by their votes it becomes, not a law in the sense in which that word is used in the Constitution, but a "part of the Constitution." To hold otherwise would lead to an anomalous situation, for if the bill proposing an amendment must be signed by the Governor before being submitted to a vote of the people, then the moment it is signed by him, it becomes, under sec. 17, Art. 2, a law with all the incidents and consequences which that term carries and conveys, notwithstanding the fact that it is wholly inoperative as a law or in any other way unless and until adopted by the people.

The people are the source of power. It is they who make and abrogate written constitutions, and when in the organic law which they have chosen for themselves they have designated the General Assembly, consisting of a Senate and a House of Delegates and nothing more, to be the agency for propounding amendments to the Constitution; no Executive has the right to step in between that agency and the people themselves and to say that without his approval they shall not be permitted to express their views on measures amendatory of the organic law. Unless the express language of the Constitution has unequivocally clothed the Governor with such an authority, in relation to proposed Constitutional Amendments, as is the case in Delaware, but in no other State, it cannot be borrowed from some other provision pertaining to a wholly different subject. Whilst the Governor is entrusted with power to protect the people against hastylegislation, he is not given a prerogative to guard them against themselves in the matter of amending the organic law. He is not superior to them. It is their will which he must obey — it is not his will which they must subserve.

Article 14 is a separate and distinct sub-division of the Constitution. It deals, in its first section, exclusively with the process of amending the Constitution and has no relation whatever to legislation. The other provisions in other articles to which allusion has been made are confined to law making — this article is restricted to Constitution making; and the two subjects are widely disconnected in location and in substance.

The fact that other amendments heretofore propounded have been submitted to and have been signed by the Governor is of no weight in translating the provisions of the Constitution. As already stated, prior to the Constitution of 1851, every amendment was made under Art. 59 of the Constitution of 1776 by an Act of Assembly which, under Art. 60, the Governor was obliged to sign. No amendments were made to the Constitution of 1851 but it was abrogated in 1864. The Constitution of 1864 was superseded by that of 1867. The first amendment of the latter was in 1874. Between the date of the last amendment of the Constitution of 1776 and the year 1874 no amendments had been adopted, and though the method of amending had in the interim undergone material changes, it was not at all strange that the practice of having the Governor sign the bill, as he had been required to do under the Constitution of 1776, should have been continued under the Constitution of 1867, especially as no question was ever raised in regard to the matter, and his signature, being a nugatory act, could do no harm.

In every jurisdiction, where the right of the President of the United States and of the Governor of a State to sign or to veto a proposed constitutional amendment has been drawn in question, the Court's have, without a single exception, denied the existence of such a right. By the second paragraph of sec. 7, Art. 1, of the Federal Constitution it is provided that, "Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States; if he approve he shall sign it," and the section continues in practically the same terms as those contained in sec. 17, Art. 2, of the Maryland Constitution. The concluding paragraph of sec. 7 is in these words: "Every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill." Art. 5 declares that "The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, etc." The Third Congress proposed to the States the Eleventh Amendment on September 5th, 1794, and on the 8th of January, 1798, the President in a message to Congress declared that the amendment had been ratified. Annotated Con. 28. By the amendment it was provided that the "Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state." In Hollingsworth v. Virginia, 3 Dall, 378, the question arose whether the Eleventh Amendment destroyed the jurisdiction of the Federal Courts in cases to which it applied and which were pending at the time of its adoption. It was contended that the amendment had not been proposed in the form prescribed by the Constitution and was void. It appeared that it had never been submitted to the President for his approval, and it was argued that it was inoperative because the Constitution declares that "every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary * * * shall be presented to the President * * * and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be passed by two-thirds of the Senate and House of Representatives." The Attorney-General, Mr. Lee, was about to reply to this argument when he was interrupted by MR. JUSTICE CHASE with this statement; "There can surely be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition or adoption of amendments to the Constitution." On the following day the Supreme Court delivered a unanimous judgment that the amendment had been constitutionally adopted.

The Thirteenth Amendment to the Federal Constitution was by inadvertence submitted to the President, but when it was learned that this had been done a resolution was introduced in the Senate asserting that such presentation was improper and unnecessary and that it ought to be so declared in order that it might not thereafter be treated as a precedent. The late Mr. Reverdy Johnson strongly supported the resolution, which was adopted.

The precise question we are now discussing has been decided adversely to the contention of the Governor, by the Supreme Court of Pennsylvania in Commonwealth, ex rel. Elkins v. Griest, 196 Penn. 396; s.c., 50 L.R.A. 868; by the Supreme Court of Louisiana in The State, ex rel. Morris v. Mason, 43 La. An. 590; in Nebraska in the case of Re Senate File 31, 25 Neb. 864. See also Green v. Welker, 32 Miss. 650; Keohler v. Hill, 60 Ia. 543; Hatch v. Stoneman, 66 Cal. 632; Jamison's Con.Conv., sec. 556 et seq.

The Pennsylvania and Louisiana cases are elaborate, full and exceedingly able discussions of the subject. In both of those cases the proposed amendment had been submitted to the Governor and had been vetoed, but had not been passed over the veto; and yet in each a mandamus was ordered to issue requiring the publication of the measures. Under the Constitution of Pennsylvania provision is made in Art. 18 for proposing amendments to the organic law. In the course of its luminous judgment the Supreme Court of that State in 196 Penn. said: "It will be observed that the method of creating amendments to the Constitution is fully provided for by this article of the existing Constitution. It is a separate and independent article, standing alone and entirely unconnected with any other subject. Nor does it contain any reference to any other provision of the Constitution as being needed or to be used in carrying out the particular work to which the 18th Article is devoted. It is a system entirely complete in itself; requiring no extraneous aid either in matters of detail or of general scope, to its effectual execution. It is also necessary to bear in mind the character of the work for which it provides. It is Constitution making; it is a concentration of all the power of the people in establishing organic law for the Commonwealth; for it is provided by the article that, `if such amendment or amendments shall be approved by a majority of those voting thereon, such amendment or amendments shall become a part of the Constitution.' It is not law making, which is a distinct and separate function, but it is a specific exercise of the power of a people to make its Constitution." The Court then proceeds to point out the successive steps which must be taken in originating and perfecting an amendment. We again quote: "These are the several stages in the proceedings to create an amendment. A proposal of the amendment in either house; an agreement to the same by both houses; a publication thereof by the Secretary of the Commonwealth; a second agreement by the two houses; a second publication by the Secretary; a vote of the people, which, if a majority vote favorably, causes the amendment to become a part of the Constitution. In the orderly and logical sequence of such preceding facts, it follows, with apparently an unanswerable certainty, that an amendment thus originated, proceeded with, and terminated, becomes an integral part of our State Constitution." These observations are strikingly apposite to the case at bar. By Article 14 of our Constitution the following, and no other, requirements must be complied with: A proposal of an amendment by the General Assembly in the form of a bill; its passage by three-fifths of all the members elected to each house by a yea and nay vote to be recorded on the journal; the entry of the proposed amendment on the journal; the publication of the bill by order of the Governor for an least three months before the next general election; a vote of the people, and if a majority of the votes cast thereon are favorable to its adoption, a proclamation by the Governor declaring the amendment to have been adopted, "and thenceforth said amendment or amendments shall be part of said Constitution." Not a word or a syllable is to be found in any of these provisions even suggesting that the Governor is entitled to participate, in any way, in formulating and proposing amendments to the Constitution.

In the Louisiana case, supra, it was contended in behalf of the Secretary of State, who had refused to publish the proposed amendment, that he was not obliged to publish it because it had never acquired the force and effect of law, inasmuch as it had been vetoed by the Governor and had failed to pass over the veto. In dealing with that proposition MR. JUSTICE WATKINS said — and upon this point the Court was unanimous: "It may be at once conceded that the proposed amendment `never acquired the forceand effect of law, and never become operative as a law; not, however, because the measure represented by House Bill 214 did not receive the sanction and approval of the Executive; not because it failed to pass over the veto, as required by the Constitution and laws of this State, as the respondent returns, but because the 256th Article of the Constitution declares that a proposition for the amendment of the Constitution shall be submitted to the electors for their approval or rejection, and if a majority voting on said amendment, shall approve and ratify the same, then such amendment so approved and ratified shallconstitute a part of the Constitution. The proposed amendment is a proposition merely, until approved and ratified by the votes of a majority of the electors of the State, cast at an election for representatives; and when so approved and ratified it constitutes — not a law — but a part of the Constitution. It is perfectly manifest, then, that neither the signature of the Governor approving the measure, nor the passage of the same by a two-thirds of the respective houses of the General Assembly could in any way affect it, in any manner or degree. Neither the one nor the other could give the proposition the force and effect of law." The Court then turned its attention to the contention that Art. 73 of the Louisiana Constitution, which combines the provisions contained in sec. 30, Art. 3, and sec. 17, Art. 2, of our Constitution, and that Art. 75, which is almost a literal transcript of the third paragraph of sec. 7, Art. 1, of the Federal Constitution, conferred upon the Executive the authority to veto the proposed amendment; and this is the summary way in which it disposed of the matter: "Each of these articles relates to the duties of the executive in respect to his approval or disapproval of ordinary `Acts of State,' or resolves of the General Assembly in respect to their becoming operative and effective as laws without ratification by the electors. But Article 256 of the same organic law, under the heading `Amendment and Revision of the Constitution,' confides to the Executive but one trust and imposes upon him but one duty. It says: "The result of said election — that is, the election at which a proposed constitutional amendment is submitted to the electors for their ratification or rejection — shall be made known by the proclamation of the Governor. This delegation of a single,specific duty in respect to such proposition would seem under ordinary rules of construction to exclude every other * * *. Our conclusion is that the signature of the Governor to the proposition for the amendment to the Constitution under discussion is not required by the Constitution, and that his disapproval of it did not affect its validity."

We need not prolong this opinion by further citations from adjudged cases and we will now proceed to note and consider the second or subordinate inquiry which in the outset we stated would be dealt with later on. That inquiry is this: Does the second section of the franchise amendment bill contain distinct legislative provisions which to be effective require the signature of the Governor? A majority of us are of opinion that it does not: whilst all of us agree that the second section of the good roads amendment bill contains no provisions needing the Governor's approval.

The second section of the franchise amendment bill is in these words: "And be it further enacted, That the foregoing section, hereby proposed as an amendment to the Constitution of this State, shall be, at the next general election for members of the General Assembly to be held in this State, submitted to the legal and qualified voters thereof for their adoption or rejection, in pursuance of the directions contained in Art. 14 of the Constitution, and at said election the vote on said proposed amendment shall be by ballot, and upon each ballot there shall bewritten or printed the words, "For the Constitutional Amendment," or "Against the Constitutional Amendment," as the voters shall elect; and immediately after said election due returns shall be made to the Governor of the vote on said proposed amendment, as directed by the said 14th Article of the Constitution." Now, it cannot be pretended that the clause directing the amendment to be submitted to the legal and qualified voters of the State at the next general election for members of the General Assembly, is distinctively and essentially a legislative provision requiring the Governor's approval, because it is precisely what Art. 14 prescribes shall be done; and if the clause had been entirely omitted from the section the Constitutional mandate would have been operative, as it still is effective, in this particular. Nor is the requirement that the vote on the proposed amendment shall be by ballot a legislative enactment, because the Constitution itself in sec. 1, Art. 1, declares that "all elections shall be by ballot." The direction that immediately after the election, due returns shall be made to the Governor, is simply a repetition of the terms of Art. 14, under which identically the same thing would have been done if the section had been altogether silent on the subject. The phrase, "as the voters shall elect," refers, not to the remote but to the immediate antecedent — not to the "written orprinted," but to the "For" or "Against" — because the voter has nothing to do with making the ballot, and, therefore, it is impossible for him to elect whether words shall be written or printed thereon. Hence, of necessity, the phrase must mean precisely that which is implied and included in the equally comprehensive provisions of the general law; unless it be assumed, either that the General Assembly purposely intended to mislead and confuse the voters by inserting a clause in conflict with the then existing general law; or, that the General Assembly obviously designed to repeal the then existing general law in this particular and to substitute a different provision in its stead. No middle or intermediate attitude exists. Either one or the other, or neither, of the two alternatives just indicated must be accepted. "Comity and a proper respect for a co-ordinate branch of the government." (Mayor, c., v. Board, etc., 15 Md. 475), forbid the adoption of an hypothesis which imputes to the General Assembly such an unworthy motive as the first of the two alternatives includes; and that alternative must be rejected. There was obviously no intention to repeal the general law, because the General Assembly in passing the good roads amendment concurrently with the franchise amendment — they were both adopted by the house on March tenth, 1904 — expressly invoked and reaffirmed the general law; and it cannot with propriety be said that as to one amendment the general law was to govern, whilst as to the other a totally different system was to prevail. The specific affirmance of the general law in the second section of the good roads amendment excludes the idea that the General Assembly designed to repeal that law by the second section of the franchise amendment, for it cannot be presumed there was an intention to have two different methods in operation at the same time. Neither alternative can, therefore, be invoked. As the voters shall elect they will vote for or against the amendment. This is what the phrase means and that is exactly in accord with what the Code prescribes. Sec. 56, Art. 33, Code of 1904 (Acts of 1896, ch.202, sec. 51; 1901, ch. 2), enacts; "If at any election there be a constitutional question * * * to be submitted to the popular vote, the said question shall be placed upon said ballot in the form following: `For Constitutional Amendment,' `Against Constitutional Amendment,' * * * and said respective questions shall be placed in a column, as hereinbefore mentioned, so that the same shall form a parellelogram, or space where the voter may clearly indicate in the way hereinafter (?) pointed out" [insecs. 54 and 55, Code 1904] "whether he shall wish to cast his ballot for or against the Constitutional Amendment * * *." As the voter shall elect, and whether he shall wish, are equivalent terms or expressions. Secs. 54 and 55 declare: "Ballots shall be so printed as to give to each voter a clear opportunity to designate by a cross (X) in a square * * * at the right of each question * * * his answer to such questions." It is clear from this brief examination of some of the provisions of the general election laws that the phrase "as the voters shall elect" is identical in meaning and effect with the clause "whether he shall wish" just cited from the Code. Eliminating from the second section of the franchise amendment all the terms thus far considered, nothing remains but the direction contained in the words "and upon each ballot there shall be written or printed the words, `For the Constitutional Amendment, or Against the Constitutional Amendment." Do these words, which we have italicised, embody such an unquestionable legislative enactment as to be inoperative without the Governor's approval; and do they defeat, by reason of the absence of that approval, the design of the General Assembly with respect to submitting the proposed amendment to the vote of the people? A majority of this Court answer that inquiry in the negative, and they thus answer it for the following reasons.

The departure, or apparent departure, in section two of the proposed franchise amendment, from the requirements of the general election law, is found in the words "written or," and in the word "the" between "For" and "Constitutional," and the same word "the" between "Against" and "Constitutional," and finally in the word "or" between "Amendment" and "Against." "Upon each ballot there shall be written or printed the words, etc." This is in the alternative. The language of sec. 56, Art. 33, Code 1904, which is a transcript of part of sec. 51, Art. 33, Sup. to Code (Act of 1896, ch. 202, andAct of 1901, ch. 2), is, "the said question shall be placed upon said ballot in the form following, etc." If written there it would be placed there; and if printed there it would beplaced there. As the direction that there shall be written or printed on the ballot the words indicated, is in the alternative, the designated words cannot be both written and printed; and as in every instance in which since the adoption of the Act of1896, ch. 202, and the prior Act of 1890, ch. 538, an amendment has been submitted and adopted, the question has beenplaced on the ballot by being printed thereon, notwithstanding the second sections of the various bills proposing amendments, contained the words "written or printed," (1890, ch. 194; 1890, ch. 195; 1890, ch. 242; 1892, ch. 313;1900, ch. 185; 1900, ch. 432; 1900, ch. 469), it may be regarded as settled that the alternative method of placing the amendment on the ballot by printing is the appropriate one to follow; especially in view of the requirements of sec. 54 and sec. 55,Art. 33, Code of 1904, to the effect that "a constitutional amendment * * * shall be printed in a separate column to follow immediately after the names of the candidates."

Surely the article "the" where it occurs in the phrases "Forthe Constitutional Amendment" and "Against the Constitutional Amendment," when the terms used in the general law are "For Constitutional Amendment," "Against Constitutional Amendment," can not be said to import such a distinct and obvious feature of legislation as to require the signature of the Governor to give the measure validity. The term "For the Constitutional Amendment" is identical with the term "For Constitutional Amendment." The disjunctive "or" where it occurs between the phrases "For the Constitutional Amendment" or "Against the Constitutional Amendment," simply means and — that is to say,both terms must be printed on the ballot. Prescinding from section two of the franchise amendment the provisions which the Constitution itself supplies; and finding that there is in the remaining requirements of the section nothing that is not in accord and complete harmony with existing enactments contained in the Code, both now, and at the time the General Assembly proposed the amendments; there is, in reality, embodied in that second section nothing whatever which requires the signature or approval of the Governor; and the fact that he did not sign the bills cannot deprive the people of the right to vote for or against the proposed amendments.

Section two of the good roads amendment bill is in the following language: "And be it further enacted by the authority aforesaid, that the aforegoing section hereby proposed as an amendment to the Constitution shall be, at the next general election held in this State, submitted to the legal and qualified voters thereof for their adoption or rejection, in pursuance of the directions contained in Article 14 of the Constitution of this State, and at the said general election the vote on said proposed amendment to the Constitution shall be by ballot, and upon each ballot shall be printed the words: "For Constitutional Amendment" and "Against Constitutional Amendment," as now prescribed by law, and immediately after said election due return shall be made to the Governor, of the vote for and against said proposed Amendment as directed by said fourteenth Article of the Constitution." This phraseology is slightly different from that used in the other bill, but the legal import of it is the same. The two are substantially similar.

There is another view of the subject which was discussed at the Bar and is considered in the briefs. And it is this: Article 14 not only gives the General Assembly, as defined in sec. 1, Art.3, heretofore quoted, the sole and exclusive authority to propose amendments to the Constitution, but it further, and in equally emphatic terms, declares that the proposed "amendments shall be submitted in a form to be prescribed by the GeneralAssembly." Obviously this means, according to the contention of the appellee, that the same body which may propose amendments may also prescribe the form, that is the method, in which they shall be submitted; and section two of the franchise amendment does nothing more than prescribe a form for the submission of the amendment to the vote of the people. But as the conclusion we have reached on the other branch of this feature of the controversy is decisive of the case, we do not deem it necessary to pass upon the contention last alluded to. We may add this observation, that had section two been wholly omitted, or if it were now stricken out, the Code would supply all the details and machinery needed to place the amendment on the official ballot at the next general election.

The conclusions we have reached are: First, that a proposal to amend the Constitution, pure and simple, does not need the approval of the Governor and that he has no authority to veto it. To this we all agree. Secondly, the majority of us hold that there is nothing in the second section of the franchise amendment requiring the Governor's approval. Thirdly, that the second section of the good roads amendment contains nothing needing the Governor's sanction. To this we all agree. Fourthly, that the order appealed against must be affirmed and that the mandamus must issue as prayed.

Order affirmed with costs above and below.

(Decided March 23rd, 1905.)

BOYD, J., dissented and delivered the following opinion in which PEARCE and SCHMUCKER, JJ. concurred.

The opinion filed in this case by the Chief Judge relieves me of the necessity of discussing what is therein spoken of as "The primary and fundamental question," not only because I cannot add anything of importance to that very able opinion, but as the members of the Court are unanimous on that branch of the case, it would be useless to do so. As the decision of the majority settles the question concerning which some of us differed, as effectually as if the Court had been unanimous as to that, I would not do more than note my dissent, did I not deem it proper to state more fully and distinctly the points on which we differed, and my reasons for the conclusion I reached.

What is called the "subordinate" inquiry is thus stated in that opinion: "Does the second section of the franchise amendment bill contain distinct legislative provisions which, to be effective, require the signature of the Governor?" While I may not confine myself strictly to an answer to that inquiry, it is sufficiently comprehensive to indicate the main point upon which we differed. Of course I assume that the Chief Judge, in the above inquiry, intended to include the other ways provided by the Constitution, by which a law may be enacted by the Legislature without the signature of the Governor — passing it over his veto, or by the Governor's failure to act within the time prescribed — as elsewhere referred to in his opinion. I do not understand any one to deny that if a bill of the General Assembly proposing an amendment to the Constitution contains provisions which can fairly be said to be legislation, such provisions cannot be effective unless submitted to the Governor. All of the authorities on the subject that I am aware of concur in that view, unless, of course, there be some special provision in a constitution that would make it unnecessary, but any controversy about it has usually arisen from the difference of opinions as to whether certain provisions amount to legislation.

The title to this bill in question is "An Act to amend section 1 of Article 1 of the Constitution of this State, and to providefor the submission of said amendment to the qualified voters of this State for adoption or rejection." The latter part was intended to follow the provisions of section 1 of Art. 14 of the Constitution which says "the bill, or bills, proposing amendment, or amendments, shall be published by order of the Governor * * * once a week for at least three months preceding the next ensuing general election, at which the said proposed amendment, or amendments, shall be submitted, in a form to be prescribed bythe General Assembly, to the qualified voters of the State for adoption or rejection." In section 2 of this bill it is provided that the proposed amendment be submitted at the next general election for members of the General Assembly and "at said election the vote on said proposed amendment shall be by ballot, and upon each ballot there shall be written or printed the words `For the Constitutional Amendment,' or `Against the Constitutional Amendment,' as the voters shall elect," (italics are mine). This bill passed the Senate on March 3rd and the House on March 10th, 1904. The other bill before us, known as the "Public Roads Amendment" passed the Senate on March 2nd and the House on March 10th, and in sec. 2 of that Act it was provided that the vote shall be by ballot," "and upon each ballot shall be printed the words, `For Constitutional Amendment,' and `Against Constitutional Amendment,' as now prescribed by law." It is impossible for me to understand how it can be said that the language thus used in these two bills is substantially similar. When the members of the Senate on two successive days (March 2 and 3) and the members of the House on the same day (March 10) solemnly enacted that in the one case there shall be written or printed upon each ballot "`For the Constitutional Amendment,' or `Against the Constitutional Amendment,' as the voters shall elect," and in the other there shall be printed upon each ballot "For Constitutional Amendment" and "Against Constitutional Amendment as now prescribed by law," they certainly did not prescribe the same form for submitting these amendments, if plain, unambiguous language is to be given its ordinary meaning. To say that one oftwo expressions shall be written or printed on each ballot, is the same thing as saying that both shall be printed on each ballot, would seem to be going very far under any circumstances, but the general laws of this State, relating to elections, show that the distinction is not one of mere words, but is regarded as one of substance and of great importance. Prior to the adoption in this State of what was called "The Australian Ballot," it was lawful to have on the ballot the names of candidates voted for, and the affirmative or negative vote on a constitutional amendment or other question submitted, eitherwritten or printed. A change was made by ch. 538 of Laws of 1890, applicable to Baltimore City and all but nine counties. By sec. 137 of that Act it was provided that "whenever a constitutional amendment or other question is submitted to the vote of the people, such question shall beprinted upon the ballot after the list of candidates, with the words `For' or `Against' as each political party may determine." The cross-mark (X) was then adopted as the means of indicating the voter's choice. By ch. 236 of Laws of 1892 that law was made applicable to the whole State, and sec. 137 was amended, providing amongst other things that constitutional amendments should be placed in a column to the right of the ticket, with two boxes or squares placed in the margin, in the upper of which "shall be printed the word `For' and in the lower of said squares or boxes the word `Against.'" The Act of 1896, ch. 202, was then passed, making many changes, which was from time to time amended, and the general law now in force has various provisions, some of which I will refer to.

Sec. 53 of Art. 33 of Code (1904) requires the Board of Supervisors of Elections of each county and of the city of Baltimore to provide ballots, and amongst other provisions it says "Each ballot shall contain a statement of every constitutional amendment or other question to be submitted to the vote of the people at any election. Ballots other than those printed by the respective boards of supervisors of elections, according to the provisions of this article, shall not be castor counted in any election, except as hereinafter provided. Nothing in this article contained shall prevent any voter fromwriting on his ballot and marking in the proper place the nameof any person other then those already printed for whom he may desire to vote for any office, and such votes shall be counted the same as if the name of such person had been printed upon the ballot and marked by the voter."

Section 54, applicable to Baltimore City and twelve of the counties, provides that "A constitutional amendment, or any question to be submitted to the popular vote, shall be printed in a separate column, to follow immediately after the names of candidates," and sec. 55, applicable to the other counties, that it "shall be printed in the same column with the names of the candidates." Section 56 requires "For Constitutional Amendment" and "Against Constitutional Amendment" to be placed on the ballot "so that the same shall form a parallelogram or space where the voter may clearly indicate, in the way hereinafter pointed out, whether he shall wish to cast his ballot for or against the constitutional amendment." Section 66 provides that the voter shall mark, with an indelible pencil, "in the appropriate space, a cross-mark (X) against the answer which he desires to give," and sec. 71 that "If the voter has marked more names than there are persons to be elected to an office, or if there shall be anymark on the ballot other than the cross-mark in the squareopposite to the name of a candidate, or other than the name ornames of any candidate written by the voter on the ballot, as provided in sec. 53, his ballot shall not be counted."

Without referring to other provisions, it will be seen from the above that the election laws of this State require official ballots to be furnished, on which shall be printed the names of candidates and Constitutional Amendments and other questions to be submitted, and that they shall be so prepared as to enable the voter to place a cross-mark in the space or square opposite the names of candidates and opposite the "For" or "Against" the Constitutional Amendment, as he may elect. The only writing permitted is the name or names of some person or persons otherthan those printed on the ballot, and, with that exception, anymark other than the cross-mark requires the ballot to berejected, as is expressly stated in the statute, and held by this Court in Duvall v. Miller, 94 Md. 697, and Coulehan v.White, 95 Md. 703. This bill does not authorize placing on the ballot "For the Constitutional Amendment" and "Against the Constitutional Amendment," but only the one or the other, "as the voter shall elect," and it authorizes that one to bewritten or printed, while the general law invalidates the whole ballot if either be written on it. As the proposed "Public Roads Amendment" provides that it shall be submitted "as now prescribed by law" — that is to say, under the General Laws — and we have seen how utterly at variance those laws are with the form proposed by this bill, in some of the most material provisions, I am unable to agree with the majority that "the two are substantially similar." One in effect says that one may bewritten or printed, the other that the two shall be printed and if either is written the ballot shall be void. Can provisions affecting ballots well be more dissimilar in their results? It seems therefore to me that the two houses of the General Assembly not only did not use language that authorizes the construction of the majority, but it must in justice to the members of the General Assembly be assumed that they did not intend this bill to be submitted on the ballot prepared under the general laws, unless they also intended to repeal the general laws, in so far as they conflicted with this bill. That they could not do that without submitting it to the Governor, and having his approval or what the Constitution makes equivalent to that, seems to me to be beyond all possible doubt, and indeed I do not understand the majority of the Court to hold the contrary. For conceding that the two houses of the General Assembly have the power to prescribe the "form" in which a proposed amendment shall be submitted, surely it cannot be said that they can so far change the General Laws as to authorize placing on the ballots provided for by those laws anything directly contrary to their provisions, without either obtaining the approval of the Governor for such change, or passing the bill over his veto. In short, alaw can only be repealed by a law, and the two houses of the General Assembly themselves admittedly cannot pass a law, but must submit it to the Governor.

The title to this bill quoted above referred to the Act as one to amend sec. 1 of Art. 1 of the Constitution, "and to providefor the submission of the said amendment to the qualified voters of this State for adoption or rejection," and the title to the other bill before us is only "An Act to amend section thirty-four of Article three of the Constitution of this State." The latter seems to be the form of title usually adopted in this State, for out of the seven Acts submitting amendments referred to in the majority opinion, only one of them (1900, ch. 185), used the form adopted in the elective franchise bill. Whether there was any special reason for the difference I do not know, but certain it is that this title gave special notice to the members of the General Assembly that the bill not only proposed to amend this section of the Constitution, but to provide for the submission of it to the voters, and when it did provide that "upon each ballot there shall be written orprinted the words `For the Constitutional Amendment,' or `Against the Constitutional Amendment,' as the voters shall elect," upon what authority can this Court strike out the words "written or?" If the bill had been submitted to the Governor, and he had approved it, could a ballot have been thrown out beuause a voter wrote "For the Constitutional Amendment" or "Against" it, instead of relying on a cross-mark? Upon what grounds could it have been done? The theory of the appellee is that the two houses of the General Assembly, by virtue of Art. 14 of the Constitution, have the power to propose an amendment and to submit it "in a form to be prescribed by the General Assembly." As they said the choice of the voter could be writtenor printed, if the Governor had approved the Act it would have been to that extent a repeal of the provisions of the General Laws, prohibiting writing the voter's choice on the ballot to be provided at the next November election, and I can see no reason why it would then have invalidated a ballot to have thus written the voter's choice on the question. But in order to do that it required legislation — the action of the Legislature and Governor — and that is precisely what this part of sec. 2 of this bill was apparently intended to be when it was passed.

The majority of the Court eliminate the words "written or," as indeed they were required to be in order to place the interpretation on the bill given it by them. Of course after that is done, the words "as the voters shall elect" can well be confined to the "For" or "Against," — but if the words used by the General Assembly — "written or printed" — are given any consideration, the voter not only had the right to elect which he would vote for, but also which of the two ways he would vote, as the General Assembly had authorized him to do. The form of this bill, especially when taken in connection with the universal practice of submitting bills proposing amendments to the Governor, which had prevailed since the adoption of the present Constitution, makes it reasonably certain that it was intended to submit this to the Governor when it was introduced, and when it was passed, and, although I agree with the rest of the Court that it was not necessary to do that in order to submit the proposed amendment to the people, still when it was determined not to send the bill to the Governor, it should have been put in such shape as the two houses of the General Assembly were authorized to adopt. The Public Roads Amendment was so drawn as to have it submitted under the General Laws and if such was the intention of the General Assembly, this bill could likewise have been so submitted, but they did not follow that plan. Of course none of us supposed that the use of the article "the" — "For the Constitutional Amendment," etc., — could affect the question, but I am not prepared to agree with the majority when they say "or" means "and" in the connection in which it is used, although I do not deem it necessary to say more on that subject.

It was argued with great force by the attorneys for the appellee that inasmuch as the Constitution provides that a proposed amendment is to be submitted "in a form to beprescribed by the General Assembly," the same body which can propose amendments can also prescribe the "form." The majority opinion does not base its conclusions on that ground and it seems to me that it is clear that this bill cannot be sustained on that theory. For conceding that to be authorized by the Constitution, still if the General Assembly adopts a "form" which cannot be used on the ballots provided for under the General Laws, without repealing the provisions of those laws applicable to those ballots, there must be legislation to enable that to be done. Under the existing General Laws, as we have seen, there can be no writing on the ballot, excepting such as we have indicated, and if any voter does put any other writing on his ballot it would invalidate the whole ballot. Surely the framers of the Constitution never intended to give the two houses of the General Assembly such power as that. The officers of election appointed under the general laws are sworn to support those laws, and could not count a ballot which had any writing on it not authorized by law. When I speak of repealing the provisions of the general laws, I do not mean to repeal them absolutely, so that they can no longer be of effect, but only in so far as necessary to make the changes on the ballot to be used at the election at which such amendment is to be submitted.

If it be conceded that the provision of the Constitution above mentioned would authorize the General Assembly to provide that the amendment be submitted on separate ballots, that would not meet the difficulty, for no machinery has been provided for such submission — neither ballots, ballot-boxes, nor officers of election are provided for at the election to be held in November next, excepting such as the General Laws authorize, and of course the ballots and the ballot-boxes must be such as those laws authorize and the election of officers appointed under those laws must be governed by them and not by a bill in conflict with them which did not become a law. Or if it be conceded that sec. 2 might have been omitted altogether (which would be going quite far) and that the General Laws would then determine the method of submitting the proposed amendment, the simple answer to that is that the General Assembly did not see proper to adopt that plan, but on the contrary did include sec. 2 and did undertake to prescribe a different form in which this amendment should be submitted. And having passed sec. 2 with sec. 1, I cannot understand how this Court can reject that, or, as suggested in the majority opinion, strike it out, with any more propriety than it could sec. 1. As the Constitution provides that the proposed amendment shall be submitted "in a form to be prescribed by the General Assembly," and as the General Assembly did attempt to prescribe the form, it does seem to me that this Court is getting on dangerous ground when it says, as it in effect does by the decision in this case, that although the Constitution says that the General Assembly (not the Court) shall prescribe the form, still as it has prescribed one which cannot be carried out under existing laws, this amendment can be submitted in a form different from that the General Assembly prescribed. With great respect for the opinion of those that differ with me it does seem to me that such course results in not only submitting a proposed amendment without the action of the Governor, but in so far as the method of submitting it, without the authority of the General Assembly, or to speak more accurately, contrary to itsintention, plainly expressed.

I cannot be influenced by the argument that the form used in this bill is the same as that generally heretofore adopted in submitting proposed amendments to the Constitution — even since the present election laws have been in force. For, as I have already said, every one of them had the signature of the Governor attached, and thereby removed all questions as to whether the bills proposing those amendments embraced legislation, for, if they did, they were adopted in accordance with the constitutional provisions which must be followed in order to enact laws. They could therefore be construed to authorize the change of the General Laws to the extent necessary to place such forms on the ballot prepared under the General Laws. But beyond that, no question was raised in the Courts as to them, and the question was therefore never passed on. If some voter had written "For" or "Against the Constitutional Amendment" as he elected, on the ballot, and the question had been raised whether that was valid, or whether it invalidated his ballot, the Courts could have been called on to determine it, but as no such question was ever raised, so far as I am aware, it has never been heretofore decided.

The form used in this and other bills seems to have been taken from the provision in the Constitution of 1867, submitting it to the people. It was there said "At the said election the vote shall be by ballot, and upon each ballot there shall be written or printed the words `For the Constitution' or `Against the Constitution,' as the voter may elect." At that time, and for over twenty years afterwards, there was no official ballot provided, and the voter could cast a ballot upon which there was either written or printed his choice as to candidates and questions submitted. No one can doubt that the framers of the Constitution meant what they said, when they provided that when the Constitution was voted on, there should be written orprinted the words "For the Constitution" or "Against the Constitution,' as the voter may elect," and when the General Assembly said in this bill "written or printed' why should we say they only meant printed? Surely we are not authorized to reach that conclusion merely because they have not provided the means for using the "written" — especially as it is perfectly manifest that when they passed the bill they expected to submit it to the Governor and thus authorize the choice of the voter to be either written or printed.

It is scarcely necessary to add that the action of the General Assembly is not self-executing. The case of Monroe v. Wells,83 Md. 505, would seem to settle that question. There the election of Clerk of the Circuit Court was contested, and decided against Dr. Wells by the House of Delegates, which under sec. 12 of Art. 4 of the Constitution heard the contest, and, having determined it against him, ordered a new election within thirty days, as required by that section. But inasmuch as the new election law had repealed the former one, in such way as to make it "absolutely inoperative for any purposes whatever," and as the former election officers did not hold over, and the new officers did not go into office until after the time fixed for the special election, there was no machinery by which it could be held, and we said "That the order of the House of Delegates, although in accordance with the Constitution, was not self-executing, but required affirmative legislation in order to be carried out, since the special election could not be held without registration, supervisors, judges or ballot-boxes provided for by a statute in force." The result was there could be no special election as required by the Constitution, because the machinery for holding it had not been provided. So in this case, as the General Assembly has attempted to submit this amendment in a way that in my opinion could not be done under our existing election laws, and did not provide the machinery for submitting it in the form prescribed by them, I thought it could not be submitted. For these reasons I was unable to agree with the majority of the Court as to the effect of sec. 2 of this bill.

I am authorized to say that Judges PEARCE and SCHMUCKER concur in this opinion.

(Filed April 5th, 1905.)