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Dutton v. Tawes

Decided: June 12, 1961.


Appeal from the Circuit Court of Baltimore City (Sodaro, J.).

The cause was reargued before Brune, C. J., and Henderson, Hammond, Prescott, Horney and Marbury, JJ., and Macgill, J., specially assigned.


HAMMOND, J., delivered the opinion of the Court.

Appellants are Southern Maryland citizens and taxpayers who earn their livelihood there by fishing, crabbing and oystering in the Potomac River. On their own behalf and on behalf of all others similarly situated who might desire to make themselves parties, they filed a bill in the Circuit Court of Baltimore City to enjoin the Governor from proclaiming Chapter 269 of the Acts of 1959, a compact with the State of Virginia relating to the Potomac River, to have been adopted by the people of Maryland as a law of the State in a referendum vote which had been taken at the election of November 8, 1960. The bill also prayed declarations (1) that the text of Ch. 269 had not been published prior to the election as required by Sec. 5 of Art. XVI of the Maryland Constitution and Code (1957), Art. 33, Sec. 170, and therefore the vote on the proposed law was void, and (2) that the Act is unconstitutional because (a) it authorizes a joint commission of Marylanders and Virginians to regulate and police the conduct of Marylanders on the Maryland owned Potomac River; (b) it empowers Virginia courts to try Maryland citizens for the commission of crimes on the Potomac River; (c) it delegates to the Joint Commission the legislative power to reduce punishment for criminal offenses on the Potomac River; (d) it usurps the power of future legislatures by binding them to make annual appropriations of not less than $50,000 for the Joint Commission; (e) it abdicates the Legislature's power to pass laws relating to fish, crabs, oysters and clams in the Potomac River after December 1, 1958; and (f) the title is deficient.

Judge Sodaro held the Act to have been duly approved by the voters and to be constitutional.

The origin and history of the compact of 1785 between Maryland and Virginia as to the Potomac River -- which provided,

inter alia, that "the right of fishing in the river shall be common to, and equally enjoyed by, the citizens of both states * * *" -- and the definitive fixing of the low water mark on the south shore of the river as the boundary between Maryland and Virginia by the so-called Black-Jenkins Award of 1878 (with the approval of Congress, in 1879), all are set out in the opinion in Barnes v. State, 186 Md. 287, 295. The two states long have had difficulties over the matters of fishing and oystering in the River.

These disagreements resulted in the unilateral abrogation of the compact of 1785 by the General Assembly of Maryland by the passage of Ch. 766 of the Acts of 1957. Virginia soon thereafter filed a complaint in the Supreme Court of the United States seeking to have the compact declared forever binding on Maryland and Virginia. The Court referred the case to Mr. Justice Stanley Reed, retired, as Special Master and a stay was ordered to permit the reaching of an agreement. The Governors of the two states appointed commissioners to resolve the differences, and the proposed compact of 1958 resulted from their efforts. The General Assembly of Virginia approved it, as did the General Assembly of Maryland by the passage of Ch. 269 of the Acts of 1959.

The Act was forced to referendum in Maryland by the signatures of almost 13,000 voters under the provisions of Art. XVI of the Maryland Constitution. At the election of November 8, 1960, some 449,347 voters recorded their preferences as to the Act, 244,510 citizens voting for its adoption and 204,837 against.

The manner in which the text of Ch. 269 of the Acts of 1959 was published is the primary target of the appellants.

The Maryland Constitution, by Art. XVI, Sec. 5 (a), provides that "The General Assembly shall provide for furnishing the voters of the State the text of all measures to be voted upon by the people; provided, that until otherwise provided by law the same shall be published in the manner prescribed by Article XIV of the Constitution for the publication of proposed Constitutional Amendments." Article XIV requires publication before the election "in at least two newspapers,

in each County, where so many may be published" and in three newspapers in Baltimore City "once a week for four weeks." By Chapter 335 of the Acts of 1941 (codified as Sec. 208 of Art. 33 of the Code of 1951) the Legislature specified that the text of a referred law should be furnished the voters by publication "once in some daily newspaper of general circulation throughout the State." This continued to be the law until the passage of Ch. 739, Sec. 170, of the Acts of 1957 (codified as Art. 33, Sec. 170), which requires publication by "at least by one insertion in two or more newspapers within the several counties of the State and in all the daily newspapers published in Baltimore City which will publish the same at the current rate of commercial advertising."

Because the employees of the Secretary of State's office continued to publish according to the 1941 law, instead of complying with the revisions of the Acts of 1957, the text of Ch. 269, the proposed compact, was published but once, in one newspaper, the Baltimore Sun, a paper which has a general circulation throughout the State, although of late years in many counties its readers are few in comparison to the total population. The texts of proposed constitutional amendments which were to be voted on at the same election of 1960 were published in fifty-three County papers and in three Baltimore City papers. It is not contended that the mistake in the publication of the text of the compact was other than unintentional.

The appellants argue that the constitutional and statutory provisions are mandatory and, therefore, the failure to follow them strictly invalidates the favorable vote on the compact. The appellee replies that after an election has been held, the courts treat such requirements as directory, that they were substantially complied with, and the failure to follow them strictly was not shown to have affected the results of the vote.

In reaching a decision, we treat the implementation by Code (1957), Art. 33, Sec. 170, of the constitutional mandate that the electorate be "furnished" the text of referred laws as establishing a statutory, rather than a constitutional, method

of procedure. There are many ways in which the constitutional imperative that the content of referred laws be made available to the voters could be gratified. One is the way the Legislature deemed adequate from 1941 to 1957. If the election now challenged had been held in the first five months of 1957 no serious objection could have been made that the text of the compact had not been properly and adequately "furnished" the electorate. The 1957 Act substituted one statutory method for another. We test the adequacy of compliance with the 1957 Act by the standards the Courts have applied to statutes specifying the manner and extent of notice of elections or of the publication of issues to be voted on in elections.

The Maryland cases, like those elsewhere, have held that there is a clearly recognized difference between the effect given to modal provisions of the election laws before election and the effect of the same provisions after election. Election officials of course should do what the law tells them to do and, before election, a court will require that they do their duty. Yet if the election has been held before court action is sought and it is not shown that the failure of the officials to follow the law has interfered with the full and fair expression of the will of the voters, that expressed choice will not be disturbed by the Courts. Wilkinson v. McGill, 192 Md. 387, 393; Graham v. Wellington, 121 Md. 656, 661; Seyboldt v. Mayor & C.C. of Mt. Ranier, 130 Md. 69, 73; Carr v. Town of Hyattsville, 115 Md. 545, 549-550. The latest statement of the rule in this Court was in Lexington Park Volunteer Fire Department, Inc. v. Robidoux, 218 Md. 195, 200: "It is generally held that an election which has been honestly and fairly conducted will not be vitiated by mere failure to follow the statute precisely unless the result is shown to have been affected or the statute expressly states that such failure renders the election void. After the election is held, statutes giving direction as to the mode and manner of conducting it are generally construed as directory, unless the deviation from the prescribed forms of the law had so vital an influence as probably to have prevented a free and full expression of the popular will. The courts reason that it would be unjustifiable to defeat the expressed will of the electorate if the irregularity

did not frustrate or tend to prevent a free expression of the electors' intention or otherwise mislead them."

Appellants rely primarily on Baltimore & Drum Point RR. Co. v. Pumphrey, 74 Md. 86; County Commissioners of Montgomery County v. Henderson, 122 Md. 533; and Graf v. Hiser, 144 Md. 418, as holding the modal requirements of the election laws mandatory. The cases are distinguishable. In the County Commissioners case aid of the Court was sought before election and in Graf v. Hiser the result of the election was deemed to have been affected by the irregularity.

Although two elections were involved in the Drum Point case, the decision turned on the interpretation of Art. III, Sec. 54, of the Maryland Constitution, which provides that no county shall give or loan its credit to an association or corporation unless authorized to do so by an act of the Legislature "which shall be published for two months before the next election for members of the House of Delegates * * * and shall also be approved by a majority of all the members elected to each House of the General Assembly at its next session after said election." The Court held that an act authorizing Anne Arundel County to lend its credit to a railroad company, passed in 1872 (which provided for a referendum at an election that should have been held on the fourth Monday in April 1873, but was held on the fourth Monday in April 1872), and a confirmatory act of 1874, were both invalid because there had not been a publication of the act of 1872 for two months before the election of the members of the House of Delegates in November 1873 as prescribed by the Constitution. The Court held that the two months' publication was one of the essential conditions precedent to a valid confirmatory act, and since all constitutional requirements had not been complied with, the authority attempted to be conferred upon the county had never been validly conferred.

The election cases hold generally that if a statute specifies that failure to follow its procedure shall invalidate the election, the required procedures must be followed or there is no case in effect was that it was implicit in the constitutional requirement that failure to follow its prerequisites would invalidate subsequent action.

Appraising the case before us by the standards of the decided cases, it is clear there was no substantial compliance with the statutory requirements as to publication. Reproduction of the text of an Act in one paper, when the statute directs reproduction in fifty-six papers, cannot be stretched to amount to substantial compliance. We think, however, that the record shows there was substantial, if not full, achievement of the purpose of the statute to acquaint the electorate fully with the law involved, and nothing to show that the deviation from the prescribed mode of acquainting, misled the voters or prevented, frustrated or interfered with a free, full and intelligent expression of the popular will. In the months before the voting, the Baltimore Sun published seventeen articles and four editorials on the compact and the Baltimore News-Post six articles and four editorials. The Washington Post and Washington Evening Star, which are widely read in ...

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