Jackson v. Norris | Cases | Westlaw

**580 The Central Purchasing Bureau was created by chapter 184 of the Acts of 1920, for the purpose of having the various institutions of the state buy through a central agency, and thereby secure lower prices and better quality and results because of the volume bought; of the standardization of materials, supplies, and articles customarily required; and of the check on waste, fraud, and *585 extravagance. The functions of the executive and administrative officers who compose the personnel of the bureau are indicative of the legislative purpose; and there is no suggestion that the boards of election supervisors, which are engaged in a peculiarly important political office, were designed to be grouped with executive official boards, departments, and institutions charged with the administrative activities of the state so that the equipment of an election should cease to be provided by the officials immediately responsible for the purchase, control, and custody under the law of the election machinery and supplies and be bought by the Purchasing Bureau.

Again, it should be observed that the Act of 1937, c. 94, creates a new board by combining the members of the Board of Election Supervisors for Baltimore City with the members of the Board of Estimates of Baltimore City. The official body so constituted is formed for the express purpose of determining the type and make, with any specifications supplementary to those required by the act, of the voting machines to be acquired by purchase by this board and to be paid for by the mayor and council of Baltimore City. In the performance of this exclusive function the board is given the authority to inform their judgment by the expert aid and advice of engineers or other skilled persons. These explicit provisions enforce the conclusion that the General Assembly did not intend the full, material, and complete powers of the specially erected board to be rendered meaningless by remitting to the bureau not only the purchase, but also the duty to ‘determine and formulate standards,’ of the voting machines. Code, art. 78, § 3. If further support of this conclusion were necessary, it is found in the fact that if the bureau should buy the machines, and they be delivered, and the invoice approved by the bureau, the comptroller could not lawfully pay the account, because there are no funds ‘appropriated therefor by the General Assembly in the Budget Bill,’ as contemplated by the statute in respect of the Purchasing Bureau. Ibid. § 4.

It is obvious that the contract for the voting machines *587 is to be made by the board created by chapter 94 of the Acts of 1937 without any recourse to the Central Purchasing Bureau. Nor does the court find that the newly-formed Voting Machine Board, as it may by conveniently called, is **581 within any provision of the charter and Public Local Laws of Baltimore City which relate to competitive bidding (Pub.Loc.Laws 1930, art. 4, § 14 et seq.).

The authority and power granted the Voting Machine Board in the supplementary specifications which it may adopt for the machines; in the selection, in its discretion, of the type and make of voting machines; and in the employment of experts to inform and aid the board in performance of its duties, are provisions which carry conviction that the right of the board to select and buy is intended to be exclusive, and to be exercised according to the best judgment of the board. It follows that the Voting Machine Board is free to buy in good faith machines as it may deem best. It may buy all or some, either with or without competitive bidding. So, if machines are bought, and prove not to answer some requirement, the board may contract, in its discretion, to have the omission rectified. This freedom in contract is requisite to the full performance of the important and difficult duties of the Voting Machine Board.

There are, however, certain allegations which are relied upon to establish that the type of machines which are bought cannot be used in accordance with the election laws. The first is that if there are three or more candidates who are competitors in a primary election for the same party nomination to a state-wide office, the ballot displayed by the machine shows the name of every candidate more than once. It is asserted that this is a violation of art. 33, section 203 of the Code of Public General Laws. In making this contention, its advocates ignore the distinction that section 203 was written for paper ballots and chapter 94 **583 of the Acts of 1937 was drawn with reference to voting machines. So, the latter act recognizes and meets the conditions produced by this difference by declaring that the machine shall be in ‘substantial compliance with the provisions of Section 203,’ and that all laws or portions of laws in conflict with the provisions of the act are thereby repealed to the extent of such inconsistency or conflict. Acts of 1937, c. 94, § 224–F(d); and section 3. The object of the provision of the election law which prohibited the name of a candidate to appear more than once was to prevent a candidate to gain the advantage of having his name printed more than once, and the evil of a voter to mark *592 his ballot more than once for the same candidate. Where the voter may select in a primary election his first and second choice of the candidate for an office, all types of voting machines carry the name of every candidate more than once, but the difficulty is met, and the same result secured as in the provision of section 203 of article 33 with respect to the paper ballot, by the statute prescribing and the mechanism of the voting machine assuring the preclusion of ‘each voter * * * from voting for any candidate for the same office or upon any question more than once.’ Section 224–F(e). Thus the General Assembly, by appropriate but different provisions with respect to each method of voting, accomplished the single contemplated result. If there is any conflict, section 203 must be held repealed or modified to the extent of the inconsistency.

The next point for consideration is the contention that in primary elections, where there are three or more candidates for nomination for the same office in the same party primary, the method by which the voter may avail himself of the right to indicate his first and second choice by the ballot presented by the machine bought (Exhibit 1) is illegal. If the voter were to cast a paper ballot, he would receive a ballot with the names of the candidates, and opposite every candidate's name would be printed two squares, with appropriate legends informing him to mark the first choice square for his first choice and the second choice square for his second choice. So, if the voter prefers candidate X for first choice and candidate Y for second choice, he makes his mark in the first choice square opposite X's name, and his other mark in the second choice square opposite Y's name. The voter may do no more than vote a first choice. Should he, however, mark no first choice, but vote in the second choice block, his vote is counted as a first choice vote for the candidate opposite that block, because having made but one choice the voter is assumed to have no second choice. It follows that in expressing his first and second choice, the voter must make two marks, if a paper ballot is cast. *593 Section 203, art. 33, Code of Public General Laws, Acts of 1912, c. 2, § 160K. The statute of 1937 requires by section 224–F(d) that the voting machine selected must permit voting in ‘substantial compliance with the provisions of section 203’ of article 33.

While regulations and methods are necessary to assure the secrecy and purity of elections, and it is the province of the General Assembly to legislate to provide these requisites for the proper functioning of the state and national systems of government, and to leave the citizens satisfied and contented in an unhampered expression of the popular will, nevertheless the statutes enacted are unconstitutional and void should the attempted regulations or restrictions be a material impairment of an elector's right to vote. Cooley on Constitutional Limitations (8th Ed.) p. 139, n. 5; 1394, 1368. Southerland v. Norris, 74 Md. 326, 328, 22 A. 137, 28 Am.St.Rep. 255; Pope v. Williams, 98 Md. 59, 56 A. 543, 66 L.R.A. 398, 103 Am.St.Rep. 379.

The right to give expression to the elector's choice for office by means of his ballot, and not to be confined to those candidates whose names are printed on an official ballot, is an important one. In effect it has been so adjudged since the courts have sustained the constitutionality of the Australian Ballot Acts, provided the acts permit the elector to vote for such persons as he pleases by having blank spaces on the official ballot in which he may write or insert in any other proper manner the names of such persons, and by giving the voter the means and the reasonable opportunity to write in or insert such names. Cole v. Tucker, supra.

While there is no precedent of this court in point, there can be no doubt that the question is a constitutional one of substance. The decisions of other jurisdictions leave no doubt of its fundamental nature and inherent gravity. Supra. ‘The elective franchise,’ it is said in Kemp v. Owens, 76 Md. 235, 241, 24 A. 606, 608, ‘is the highest right of the citizen, and the spirit of our institutions requires that every opportunity should be afforded for its fair and free exercise.’ An election is not free, nor does the elector enjoy a full and fair opportunity to vote, if the right of suffrage is so restricted by statute that he may not cast his ballot for such persons as are his choice for the elective office. If this right to vote be considered historically, and in relation with the legal and constitutional provisions which existed when the Constitution of 1867 was promulgated and adopted, there can be no denial that the statutes of 1924 and later are an abridgment and denial of the elective franchise which the Constitution intended to preserve. The proof is not only in the history of the elective franchise, but in the statutes, and especially in the acts passed and in force during the period from 1890 to 1924. An impairment of a constitutional right is *599 of major consequence. It was said in Arnsperger v. Crawford, 101 Md. 247, 258, 61 A. 413, 417, 70 L.R.A. 497: ‘And we may add that it is the infringement of the constitutional rights of the few in minor matters which leads to the disregard of the rights of the body of the people in matters of graver import, and that no constitutional right can be so ummportant as to justify a court in failing to enforce it when its aid is invoked for that purpose.’ Here, however, is no minor matter. The right to vote is the right to choose the person for whom the ballot is cast. The election is not free if the elector may not make this choice. Nor does the exercise of this right depend upon either the wisdom, the expendiency, or the futility of the choice. If the constitutional right exist, the choice is absolute. If the power to choose is not according to the will of the elector, but limited to a choice of the candidates whose names are printed or otherwise appear on an official ballot, the voter's choice is no longer free. His choice is thus circumscribed by an official ballot, and he is not free to vote his personal choice.

It is no answer to say that the names on the official ballot are the candidates of political parties or of principals, who have been nominated by conventions or by primary meetings or by a certificate of nomination, which last contains prescribed information with reference to one candidate, and the statement of the signers that they intend to vote for the person so nominated. The number of signatures varies from the lowest of 500, through the rising gradations of 750, 1,500, and 2,000, in accordance with the relative territorial extent of the political division in which the candidate and signers reside and whose voters elect the incumbent of the office sought by the candidate. Code, art. 33, §§ 51–57, and section 58, as amended by Acts 1927, c. 244. These provisions are intended to exclude the casting of a vote for any candidate except one thus nominated by conventions, primary meetings, or certificate of nomination. In only the case of the voter who had signed a certificate of nomination for a particular candidate, and *600 had thereby agreed to vote for him, would a ballot cast by that voter be the voter's personal choice. If the elector were not such a signer, his choice would be limited to the names on the ballot, which is not the freedom of choice which subsisted before and for years after the official ballot was introduced. Nor is the provision for a nomination by the requisite certificate a sufficient gratification of the constitutional right to vote. The fundamental principle involved is the personal right of an elector to exercise his individual choice in the casting of his ballot for whom he prefers. For this precious right to reject, which is implicit in his right to choose, there is no equivalent nor constitutional substitute. The elector has the right to refuse to vote for a single official nominee, whatever may be his reason or motive, and the statutory deprivation of his right to vote for his own choice is not compensated by the privilege to make the costly, precarious, and laborious efforts to unite the large group of voters, in support of his own or another party's candidacy, which would be necessary for a nomination by certificate. The right of the elector to vote his own ballot is not in the same category as the organization of a political group and the nomination of its candidate. Cohn v. Isensee, 45 Cal.App. 531, 188 P. 279.

Nor may the elector's vote be restricted to one of the *601 candidates on the official ballot upon the theory that this substantially secures to the elector his constitutional rights. It must be considered in this connection that every voter has but a single vote to cast. This vote, whether cast with the majority or the minority, is as important in terms of personal value and constitutional significance as every other vote. The futility of the elector's vote is not the measure of his constitutional right. The civic and political importance of an unabridged and unhampered choice lie in the freedom of the elector to exercise fully this right on any occasion, without the power of the General Assembly to nullify or restrict.

Turning now to authority, it is found that the problem has been presented in various forms. A number of courts have declared that if the statutes had not permitted the elector to vote by writing in the official ballot his choice, and so had confined the voter to a selection from the names of candidates on the ballots, the statutes would have been unconstitutional. As was said in *602 People v. President, etc., of Wappingers Falls (1895) 144 N.Y. 616, 620, 39 N.E. 641, 642: ‘Constitution confers upon every citizen meeting the requirements specified therein the right to vote at elections for all offices that are elective by the people, and there is no power in the legislature to take away the right so conferred.’ Cohn v. Isensee (1920) 45 Cal.App. 531, 188 P. 279; Patterson v. Hanley (1902) 136 Cal. 265, 68 P. 821, 975; Stewart v. Cartwright, 156 Ga. 192, 118 S.E. 859, 861, 862; Barr v. Cardell (1915) 173 Iowa 18, 155 N.W. 312; Sanner v. Patton (1895) 155 Ill. 553, 40 N.E. 290; People v. McCormick (1913) 261 Ill. 413, 103 N.E. 1053, 1057, Ann.Cas.1915A, 338; Fletcher v. Wall (1898) 172 Ill. 426, 50 N.E. 230, 40 L.R.A. 617; Cole v. Tucker (1895) 164 Mass. 486, 41 N.E. 681, 29 L.R.A. 668; People ex rel. Oatman v. Fox (1897) 114 Mich. 652, 72 N.W. 611; People ex rel. Bradley v. Shaw (1892) 133 N.Y. 493, 31 N.E. 512, 16 L.R.A. 606; Wescott v. Scull, 87 N.J.L. 410, 96 A. 407, 410; De Walt v. Bartley (1892) 146 Pa. 529, 24 A. 185, 15 L.R.A. 771, 28 Am.St.Rep. 814; Oughton v. Black (1905) 212 Pa. 1, 61 A. 346–348, 4 Ann.Cas. 141; State v. Anderson (1898) 100 Wis. 523, 76 N.W. 482, 484, 485, 42 L.R.A. 239; Bowers v. Smith (1892) 111 Mo. 45, 46, 20 S.W. 101, 110, 111, 16 L.R.A. 754, 33 Am.St.Rep. 491; Park v. Rives, 40 Utah 47, 119 P. 1034, 1036, 1037.

The conclusion of the court that it is the constitutional right of an elector to cast his ballot for whom he pleases, and that it is necessary for him to be given the means and the reasonable opportunity to write or insert in the ballot the names of his choice is subject to this limitation that the right is not applicable to primary elections nor to municipal elections other than those of the city of Baltimore. This exception must be made since the provisions *604 of article 1, § 5 of the Constitution have been held to apply solely to the right to vote at federal and state elections, and municipal elections in the city of Baltimore. Smith v. Stephan, 66 Md. 381, 388, 389, 7 A. 561, 10 A. 671; Hanna v. Young, 84 Md. 179, 35 A. 674, 34 L.R.A. 55, 57 Am.St.Rep. 396; Johnson v. Luers, 129 Md. 521, 531, 532, 99 A. 710; State v. Johnson (1902) 87 Minn. 221, 91 N.W. 604, 840; Willoughby on Constitution of the United States (2d Ed.) § 356, p. 646.

The Automatic Company has offered to deliver in performance of the contract, either of the two types of machines which are constructed and arranged according to plan A and plan B, but, as these machines do not provide for the elector casting a vote for any other than a candidate whose name appears on the official ballot, the Voting Machine Board has no power to purchase and accept either type of machine, although, except in respect of the defect named, both machines are in substantial compliance with the provisions of chapter 94 of the Acts of 1937, and the specifications drawn by the board.

The chancellor, therefore, decreed the use of the machines would be unlawful and the purchase of such machines would be ultra vires. In the conclusion this court concurs. The testimony on the record is to the effect that the voting machines which the bidder had agreed to furnish could, at an additional expense of $82 a machine, be furnished with the requisite added equipment to enable an elector to cast his ballot for any candidate whom he might choose in preference to those whose names appeared as candidates on the official ballot. This court does not construe the decrees of the chancellor to prevent the Voting Machine Board from making another contract with the Automatic Company whereby the machines of the type known as plan A and plan B, when provided with the necessary equipment for the purpose mentioned, may be bought at the suggested advance of $82 a machine over the price of the ultra vires contract. Whether such a course at that price or less is for the public advantage is a question for the board *605 which, however, is not confined in the purchase to one contractor nor to a particular make or type of machine and from of contract. The board, in the exercise of the discretion conferred, **589 may, according to its judgment and in the public interest, discharge, within the authority granted, the duty committed either with or without competitive bidding. Supra.

The point is made that because of the provisions of paragraph 43 of the specifications that ‘The contractor shall furnish and deliver all of said voting machines to be purchased under this contract to the Voting Machine Board in strict accordance with and to meet the requirement of all of the terms, conditions and provisions of Chapter 94 of the Laws of Maryland, Regular Session of 1937, any and all other laws and contract documents,’ the contract is valid. The position taken is based upon the theory that since this quoted paragraph imports into the contract the requirement of subdivision (d) of section 224–F, chapter 94 of the Acts of 1937, that every voting machine acquired or used under the provisions of this subtitle shall, ‘(d) permit each voter to vote, at any election, for any person and for any office for whom and for which he is lawfully entitled to vote, and to vote for as many persons for an office as he is entitled to vote for, including a substantial compliance with the provisions of Section 203 of this Article,’ the legal effect of the language of the contract is to require the contractor to furnish voting machines which would be supplied with the necessary equipment for the elector to write in his personal choice when other than a candidate whose name appears on the official ballot.

*606 Although, since the passage of the Acts of 1931, c. 120 (section 80 of Article 33 of Code, 1935 Supp.), the statutory law has declared that a ballot must be rejected if a voter should write in the name of his personal choice, nevertheless the quoted language of subdivision (d) section 224–F, Acts 1937, c. 94 is broad enough to provide for the elector to vote ‘for any person and for any office for whom and for which he is lawfully entitled to vote,’ which would permit a vote to which every elector is entitled under the Constitution, and for which the statute assured its count until the Act of 1931, c. 120. So, under the Acts of 1937, c. 94, the voting machine authorized should permit such a vote to be cast as, in fact, was permitted to be done by the fifty voting machines which had been previously purchased by Baltimore City and which were, by section 224A of chapter 94 of the Acts of 1937, directed to be used in all future elections in Baltimore City.

The contract is void because the Voting Machine Board had no power to enter into a contract for a machine which prevented an elector from exercising his elective franchise under the Constitution. The void contract fails while wholly executory for lack of power in the Voting Machine Board to make the contract. The fact that one party to a purporting executory contract has no power to make the contract attempted cannot result in changing and enlarging the undertaking of a seller by sample so that, by implication, he may become bound to supply an article which is within the power of the purchaser to buy, but different from the sample of the article which the seller agreed to sell. The promisor cannot be compelled to deliver things which he has not agreed, nor can *608 he enforce against the buyer, subject to statutory limitations, the acceptance of the thing bought and the payment of the agreed price, if the buyer has no power to buy the thing attempted to be sold. There is lack of consideration for such a contract, and it must fall.