The aegis & intelligencer. [volume] (Bel Air, Md.) 1864-1923, 1896-06-05
The Bel Air Election Law UncOnsti-
tutiOnaI.

The Bel Air Election Law UncOnsti-
tufiOnaI.
The petition for a mandamus, which was
filed by the new Board of Town Commissioners
of Bel Air, directing the treasurer of the late
board to surrender tn e books and funds to his
successor, was argued before Judge Walters,
in chambers, on Saturday by Mr.. George l..
VanBbber for the petitioner, and Messrs. ThOs.
Fl. Robinson and Hugh J. Jewett, Jr., for the
respondent. In order to secure judicial de-
termination of the matter, the question was
raised by general traverse denying the allie
cations in the respondents answer, and was
argued upon the following admitted statement
of facts:
SIT is agreed in this case that the election
held in Bel Air, Md, on the first Monday in
May, 1896, for five Town Commissioners for
the town of Bel Air, was In all respects regu-
lar except that the act of the General Assem-
bly, OF Maryland, passed at the January ses-
sion, 1886, was ignored by the majority of the
judges of election, who held the election and
received all ballots offered the same as if said
law of 1896 had not been passed, and If the
Court is OF opinion that the act of 1896 is con-
stitutional, then the defendant (John b.
HANNAH is the duly appointed and qualified
treasurer of the town of Bel Air, and the petit
ton in this case shall be dismissed ; but if the
Court is of opinion that said act is uncons'i-
tutional, then the petitioner (James Z. Youu@)
is the duly appointed treasurer, and the writ
of mandamus shall issue as prayed"
. Judge Waters filed his opinion on Weducs-
day. He held that under the provisions of
the first article of the State Constitution all
persons are entitled to vote at any election
held in the State, and that any law abridging
the franchise as provided for in article l, was
unconstitutional.
1t is understood that an appeal will be taken
from the decision, and arrangements made for
an immediate review by the Court Of Appeals,
so that decision may be reached by the first
of July.
The opinion is herewith annexed in full.
urer of the town of Bel In the Circuit Court
Air, for
VS.. Hartford County.
John B. Hanna.
The distinct purpose of the parties to this
case, as shown by the petition, answer and
agreed statement of facts, is to present to the
Court for its determination, the single issue
of the validity of an act of the General As
sembly of Maryland, passed at the January
session, 1896, and entitled San Act to repeal
section % of Article l3 of the Code of Public
Local Laws entitled Hartford County sub
title Bel Air, as repealed and re-enacted, &c,
&C." That is to say, to determine whether
said Act of Assembly is or is not repugnant to
Article l of the Constitution of Maryland,
which defines the rights OF elective franchise
of the citizens of Maryland.
If the ELECTION provided for In said ct
OF Assembly is an election within the meaning
OF the first section of the first Article OF the
~. - nd han hn LOT M
Assembly is manifestly incon sistent with the
Constitution, in that it prescribes other quail
fications for electors and different from those
prescribed by the Constitution, and is there
fore void.
In republican form of government, the
definition OF the rights of citizenship and de-
termination OF the elective franchise is the
highest exercise OF sovereign power, and one
which cannot be assumed by mere legislative
body.
No exercise of sovereign rights can be in
significant nor can any usurpation OF them be
tolerated.
The policy OF our government is to distribute
the functions of government through many
channels-the heavy hand need not be felt,
but its highest touch is guided and controlled
by the same sovereign pcwer-what we call
local self-government is as well recognized
and as real an exercise of sovereign power as
is the war-making or the treaty-making power
of the general government. The source OF all
government, with us, whether federal, state
or municipal, is the same; and its foundation
is the elective franchise.
The purpose of the Act of Assembly under
consideration is to create corporation
with governmental functions. The Legisla-
ture can create a municipal corporation, but
it cannot create, or alter, or amend the cleo
tive franchise upon which such corporation
must depend.
This Act of Assembly provides for tho cleo
Of fua TniS for the town pf
Bel Air, who ''shall have full power and au-
thority to enact and pass all ordinances, to
preserve the health of the town, to promote
cleanliness and good order, to regulate the
keeping and running al large OF cattle, swine,
goats. &c, &c" These are all legislative
fuuctions-the Legislature itself can exercise
| them all-it can muZZle the dogs and prescribe
the length of tether to be allowed to the goats;
| but surely it requires no authority 10 snow
| that the Legislature cannot delegate its own
| functions to another body selected by class
| of electors different from that recognized in
| the Constitution and different from that which
| selected the legislators themselves.
| II understand the decision OF the Court OF
Appeals in Smith VS.. Stephens ct al, G6 Md,
| 3Sl, the Court in that case decided that the
| Legislature, without express authority OF me
| Constitution, could not even prescribe what
proof of the qualifications of voters at mum
1 cipal election should be required.
| The conclusion | reach is that the election
| provided for In the Act Of Assembly in quesz
| tion is clearly embraced In the term ''all cleo
lions" used in the first section OF the first
Article of the Constitution Of Maryland, and
| in as much as the act prescribes qualifications
for the electors, different from those prescribed
by the Constitution, it is void.
| Having reached a conclusion by what is, at
least claimed to be, process of reasoning, 1t
may be permissible to apply what may be call
ed an ur1i,mettBI dd hOnliHcml suppose 1t Is
determined that the right to create munich
pal corporation carries with it the right to say
TO whose hands the management OF the cor
poration shall be intrusted, then what is to
prevent one OF the residents within the limits
of the corporation who may happen to be the
largest Taxpayer from inducing the Legisla-
ture to fix the property qualifications at such
a figure as to make him the sole and solitary
voter to elect the officers OF the corporation 7
Under our present constitution, If the Legis.
lature has the right to prescribe property
qualification of one hundred dollars, 1t has
the right to make it one hundred thousand,
aud it is idle to say that the trainers OF our
| constitution assumed that the Legislature
would exercise its power within reasonable
| limits Who is to distinguish the reasonable
| from the unreasonable? 1t Is more logical TO
assume that II the makers of our constitution
ed intended to grant to the Legislature such
extraordinary powers, they would have defined
the reasonable limits within which 1t should
be exercised.
Having decided the only matter at Issue IN
favor of the petitioner, sign an order grant
ing the mandamus.
JAS. ID. WATERS.