Appeal from the Circuit Court for Anne Arundel County; Duckett, J.
The cause was argued on October 17, 1961, before Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. The cause was reargued on December 12, 1961, before Brune, C. J., Henderson, Hammond, Prescott, Horney and Marbury, JJ., and Macgill, J., Associate Judge of the Fifth Judicial Circuit, specially assigned. Prescott, J., delivered the opinion of the Court. Henderson, J., filed the dissenting opinion, in which Horney, J., concurs.
In its entire history, this Court has seldom, if ever, been called upon to decide a case of greater, or more far-reaching, importance than the case at bar. It involves the composition and proper organization of the State Government itself, and the correlative duties and responsibilities of the coordinate branches thereof. The problem calls for the best efforts of all three branches of the State Government in order to furnish to the people of Maryland, without the uncertainties of an interregnum and its attendant risk of chaos, an orderly and continuous system of self-government that will not violate any of the provisions of the Maryland or Federal Constitutions. It needs no citation of authority to state that if any portion of the system of Maryland's government infringes upon the Federal Constitution, which is the supreme law of our land, it must yield to the provisions of the Federal Constitution. And if it does infringe upon the Federal Constitution, it is also invalid under our own constitution, which provides:
"The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, * * * are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to
the contrary notwithstanding." Maryland Declaration of Rights, Article 2.
We deem it appropriate, at the outset, to say that the questions involved in this case do not bring on a clash between any two branches of our State Government. We, as members of the Judiciary, are not required to declare any previous action of the Governor or of the Legislature invalid or unlawful. The foundation question posed is whether Section 2 or Section 5 of Article III of the Maryland Constitution, or both (the sections that apportion the members of the General Assembly), in view of the present distribution of population in Maryland, constitute an unreasonable, discriminatory dilution of appellants'*fn1 rights of suffrage (insofar as the 1962 election is concerned), in violation of the Equal Protection clause of the Fourteenth Amendment of the Federal Constitution, which is, of course, the Supreme Law of the entire United States, and specifically made the Supreme Law of this State by Maryland's Constitution, as pointed out above.
The decision of the Supreme Court of the United States in the recent case of Baker v. Carr, 369 U.S. 186, presents problems that must be considered by all three branches of our State Government. There can be no doubt that the decisions of the Supreme Court construing the Federal Constitution and Acts of Congress pursuant thereto are conclusive and binding, not only upon the state courts,*fn2 but also upon all other branches and departments of the Federal and State Governments. In the Baker case, as in the case at bar, citizens, who were eligible voters, sought declaratory and injunctive relief. They challenged the validity of the Tennessee apportionment statute upon the ground that they were being denied "equal protection of the laws" under the Fourteenth Amendment by virtue of a dilution or debasement of their votes. The District Court dismissed the action on the grounds that the Court
lacked jurisdiction and the complaint failed to state a claim upon which relief could be granted (there was also an additional ground not here pertinent). The Supreme Court reversed, holding that the subject matter was within the federal judicial powers as defined in Article III, § 2 of the Federal Constitution, and Congress had assigned original jurisdiction thereof to the District Courts by Section 1343 (3) of 28 U. S. C. It further held that a justiciable cause of action had been stated upon which the appellants would be entitled to appropriate relief, and the appellants had standing to challenge the apportionment statute. The Court also noted that it had "no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found." Indeed, Mr. Justice Clark, who preferred that the case be decided upon its merits, suggested, in a concurring opinion, that the District Court do the apportioning. 369 U.S. at page 251. It is our belief that if any action needs to be taken in order to bring the State's system of legislative apportionment into conformity with the requirements of the Fourteenth Amendment and Article 2 of the Maryland Declaration of Rights, it is preferable from the point of view of responsible self-government that the State's own duly constituted officials and the people themselves undertake the task, rather than leave to the Federal judiciary the delicate and perhaps unwelcome task of doing so. We take it under Baker v. Carr, supra, that it is clearly a task which the Federal courts would be duty bound to undertake, upon a proper showing of the need therefor.*fn3 Assuming that the allegations of appellants' bill of complaint are true, this can only be accomplished by action upon the part of the Governor of this State, the Legislature and this Court. We proceed to consider whether this can be lawfully done under our present constitution and laws.
The case reaches this Court upon appeal from a decree of the Circuit Court for Anne Arundel County, as a Court of Equity, which sustained demurrers to appellants' bill of complaint requesting declaratory and injunctive relief,*fn4 and dismissed the same.
The bill alleges that the plaintiffs (appellants), with one exception, are residents, taxpayers and eligible voters of the counties of Anne Arundel, Baltimore, Prince George's and Montgomery (hereinafter sometimes referred to as the "four suburban counties"), and the City of Baltimore. The other appellant, the Maryland Committee for Fair Representation, is an unincorporated private association composed of taxpayers and eligible voters residing in the aforementioned counties and elsewhere in Maryland.*fn5 The defendants (appellees) are: the Governor of this State, whose duty it is to issue commissions to candidates elected to office in state elections, in conformity with the statements and determinations made by the Board of State Canvassers and delivered to him by the Secretary of State (Code , Article 33, section 143*fn6 [b]); the Board of State Canvassers (State Canvassers), whose duty it is to determine and declare, upon the basis of the certified copies of election returns made to them by the city and county canvassers, what persons have been elected to office at any state election, including election to the General Assembly (Section 142 [b]); the Secretary of State, who is required to record the certified statement and determinations of election delivered to him by the State Canvassers and to transmit a copy of the determinations to the Governor (Section 143 [a]); and
the Board of Election Supervisors of Anne Arundel County.
The bill further alleges (with the allegations supported by Exhibits) that the 1960 population figures, based on the Federal census taken in 1960, show the present total population of Maryland is 3,072,999. The total combined population of the Counties of Anne Arundel, Baltimore, Montgomery and Prince George's and the City of Baltimore is 2,312,485, which is approximately 76% (percentages hereinafter mentioned are usually approximate ones) of the total 1960 population of the State. The population of the remaining 19 counties is 760,514, or 24% of the total population. Yet, under the representation now provided by Sections 2 and 5 of Article III of the Maryland Constitution, the four suburban counties and the six legislative districts of Baltimore City each have one member in the State Senate for a total of 10 out of 29 who comprise that body, or 34% of the total representation in the State Senate; and the said suburban counties and legislative districts of Baltimore have a total of 60 delegates out of a total of 123, who comprise the House of Delegates, or 49% of the total representation in that House.
Further allegations of the bill assert that the four suburban counties and Baltimore City are the only political subdivisions of the State subjected to under-representation in the General Assembly, and these allegations are supported by plaintiffs' Exhibit D. This Exhibit shows that when the entire population of the State elects 29 senators, each, population-wise, represents some 106,310 persons of that population. None of the counties of Maryland has a population of over 106,310, except the four suburban counties. And, if the composition of the State Senate were based upon the present population alone, the four suburban counties and Baltimore City would be entitled to 22 instead of 10 Senators. The Exhibit shows that in Baltimore County the mean figure of 106,310 persons represents but 22% of its population, and varies upward in the other counties to a peak in Kent County, where the same mean figure represents 692% of its total population.
The Exhibit discloses a like situation with reference to representation in the House of Delegates (based upon 25,065 of population for each Delegate): all of the suburban counties
and Baltimore City are subjected to under-representation, varying from minus 3% in Baltimore City to minus 225% in Baltimore County, and all of the other counties enjoy over-representation ranging from 23% over-representation in Harford County to 74% in Somerset County. For examples, it shows that each of the four Delegates from Dorchester County represents a figure of 7,399 of population, while each of the six Delegates from Baltimore County represents 81,700 of population; and each of the three Delegates from Talbot County represents 7,173 of population, while each of the six from Prince George's County represents 59,343.
The bill also contains allegations that the four suburban counties and Baltimore City contributed for the fiscal year ending in 1959, 84% of the income tax revenue, 73% of the sales and use tax revenue, 83% of the corporation franchise tax and 70% of the revenue obtained from business licenses; and, although the four suburban counties contain 46% of the total motor vehicle registrations in the State, they received back only 12% of the total allocation to the various political subdivisions of the motor vehicle fuel tax.
The bill further asserts that no legislative relief is available to the appellants, and it points out and specifically names at least eleven bills that were introduced in the General Assembly, during the last ten years, for achieving some reapportionment of or change in the representation now provided in the aforementioned Sections 2 and/or 5 of Article III, and that legislation proposing the call of a constitutional convention was introduced at the 1954, 1955, 1957 and 1960 sessions of the General Assembly. The bill then states that all of these reapportionment proposals and the legislation introduced for the purpose of convening a constitutional convention failed of passage because of the opposition of the members of the General Assembly representing the less populous counties.
The bill also states that under the provisions of Section 2 of Article XIV and Section 9 of Article XVII of the Maryland Constitution a referendum with respect to the question of whether a constitutional convention should be convened was held in the 1950 general election, and the proposal to assemble a convention was approved by a vote of some 200,000 to
70,000, but bills to make the proposal operative introduced at the next session of the General Assembly were tabled.
The complaint further asserts that the appellants are suffering irreparable injury as a consequence of the "illegal discrimination in the exercise and effect of their voting rights and the taxation without adequate representation to which they and all eligible voters" of the four suburban counties and Baltimore City are subjected by virtue of the above mentioned Sections 2 and 5, which sections violate their rights of suffrage guaranteed under the Equal Protection clause.
The prayers, condensed, are:
(1) That the court grant a declaratory judgment holding that Sections 2 and/or 5 of Article III of the Maryland Constitution violate the Fourteenth Amendment of the United States Constitution;
(2) That the court declare that the representation in the General Assembly as now established by said Sections 2 and 5 violates the Civil Rights statutes, i.e., Title 28 U. S. C. 1343 (3) and (4), and Title 42 U. S. C. 1983;
(3) That the court declare that the General Assembly's failure to reapportion its membership in accordance with a formula which reasonably reflects the present population of the different counties and Baltimore City violates the Equal Protection clause and the said Civil Rights statutes, as well as Article 7 of the Maryland Declaration of Rights;
(4) That the court declare the General Assembly's failure to convene a constitutional convention, "as approved in the General Election of 1950," violates Section 2 of Article XIV of the Maryland Constitution as it read in 1950, as well as Articles 1, 7 and 45 of the Declaration of Rights;
(5) That the Court permanently enjoin the Board of State Canvassers and the members thereof, as identified herein, from determining, certifying, or in any other way indicating the Board's approval of the election of any candidate to the General Assembly of Maryland in any State election to be held in November 1962 or thereafter (unless such future State election be held on an at large basis), until such time as the General Assembly of Maryland shall have enacted and submitted for a referendum vote by the eligible voters of this
State, an amendment or amendments to Sections 2 and 5, Article III of the Maryland Constitution, which would reapportion, on the basis of present population and in conformity with Section 1 of the Fourteenth Amendment of the United States Constitution, the representation which is allotted to the various counties and the City of Baltimore in the General Assembly of Maryland; (6) That the Court enjoin defendant Tawes from issuing commissions of elections to any candidates for the General Assembly of Maryland in any State election to be held in November 1962, or thereafter (unless such future election be held on an at large basis), until such time as the General Assembly of Maryland shall have taken the action requested in paragraph (5) of these prayers for relief; (7) That the Court enjoin the Board of Election Supervisors of Anne Arundel County from issuing commissions to any candidates to the General Assembly of Maryland from Anne Arundel County in any state election to be held in November, 1962, or thereafter, unless held on an at large basis, or the General Assembly shall have taken the action requested in prayer (5) above; (8) That the Court retain jurisdiction of the case, require the defendants to pay the costs, and grant such other and further relief as may seem just and proper.
We shall first determine what we consider the subsidiary questions raised by the appellants. In regard to prayer (2), Section 1983 of Title 42 U. S. C. provides, in part, that "every person" who subjects, under color of law, custom, etc., any other person to the deprivation of his constitutional rights, privileges, etc., shall be liable to the party injured. Section 1343 (3) and (4) of Title 28 U. S. C. gives original jurisdiction to the Federal District Courts to redress such deprivations, including equitable relief under any Act of Congress providing for the protection of civil rights. Clearly, Section 1343 (3) and (4) has no application at all, since there is no question pertaining to the jurisdiction of a Federal District Court. Section 1983 of Title 42, U. S. C., though it creates a new liability and affords means for its enforcement and for the enforcement of constitutional and other rights for the protection of which the new cause of action and remedies are given,
does not create the constitutional or other rights for the violation of which it affords a cause of action and remedies. On the allegations of the bill, we are unable to see any "violation" of Section 1983. We conclude that there is no basis for a declaration that either of the sections just referred to is violated by the present Maryland legislative apportionment, even if that apportionment should be found to be invalid under the Fourteenth Amendment.
In view of what we hold below in regard to the other prayers, we deem it unnecessary to consider specifically prayers (3) and (7). The underlying purpose of these prayers and of the whole bill appears to be to obtain relief for the future. Insofar as prayer (3) may seek a declaration as to the past, our comments below on prayer (4) are applicable to it also.
Prayer (4) asks for a mere declaration that the General Assembly's failure to convene a constitutional convention, as the result of an election that occurred more than ten years ago, violates certain of the provisions of our Constitution. It is no more, we think, than a request to answer an abstract question, which, if answered, would serve no useful purpose. Such action is not included among the purposes of declaratory relief, under our statutes. 1 Anderson, Declaratory Judgments, §§ 3, 222. The declarations requested in prayers (2) and (4) seem to have been framed with the Federal Declaratory Judgments statute, Title 28 U. S. C. A. § 2201, in mind which, as we read it, seems broader in scope than the Maryland statutes relating to declaratory judgments.
This brings us to the pivotal questions to be determined. It will be noted the Court is requested to declare that Sections 2 and/or 5 of Article III (hereafter referred to as Sections 2 and 5) are unconstitutional, and to enjoin certain of the State's officials from certifying the election of candidates, at the election to be held in November 1962, in the absence of some relief from the infringement upon the appellants' asserted constitutional rights. As we view the appellants' contentions here, their entire thrust is directed to the election of 1962, and the future, and we shall so consider it.
If Sections 2 and/or 5 are unconstitutional, whose function, duty and obligation is it to declare ...