Shub v. Simpson | Cases | Westlaw

It is perfectly apparent that as to Jones and Fox, the case is moot. They chose to make affidavits rather than stand on the legal questions they raised, and their certificates were accepted. As to them, it does not now matter whether the action of the Secretary of State in declining to receive those certificates without the affidavits was correct or not. For that reason their appeals were dismissed.

The petitioner Shub is a candidate for a state office. The petitioner Gerende is a candidate for a Federal office, and there is a distinction between the two cases *186 which, in our opinion, makes Sec. 15 operative as to Shub, but not as to Gerende.

It may be noted that Article 37 does not prohibit candidates for office from being required to make affidavits as to their qualifications. It has been the practice and custom and statutory requirement for many years to demand from candidates at the time of filing for office certificates under oath with respect to their various qualifications. Such provisions are set out in Article 33 of the Code, and these sworn certificates have never been considered as additional oaths of office. The filing of such certificates is made a prerequisite to the placing of a candidate's name upon the ballots or in the voting machines. (Art. 33, Sec. 53(a) as enacted by Chapter 425 of the Acts of 1949). Their requirement is a method by which the Legislature is executing what has been held to be its inherent power to safeguard elections. Kenneweg v. Allegany County Commissioners, 102 Md. 119, 62 A. 249; Munsell v. Hennegan, 182 Md. 15, 31 A.2d 640; Hennegan v. Geartner, 186 Md. 551, 47 A.2d 393. The purpose is to keep from the ballots and voting machines the names of those who are ineligible for office.

It is earnestly contended, however, that the affidavit required by Sec. 15 is not only an affidavit for the purpose of keeping the ballots and voting machines clear of unqualified persons, but it is in effect an additional oath of office because some of those who take it must be elected to the respective offices voted for, and those particular persons are thereby required to take two oaths of office; one, the constitutional oath, and the other, the oath to the affidavit required by Sec. 15. Except for one other consideration which we are about to discuss, there might be some force in this argument if the affidavit was required of only those elected, but it seems clear that both the purpose and the actual wording of Sec. 15 negatives this contention.

Appellants contend that the wording of Sec. 15 goes much further than the constitutional amendment, and that if Sec. 15 is viewed as an implementation of the constitutional provision, it will be seen that its provisions exceed those made by the people in that amendment. They attempt to justify this contention by the fact that the affidavit required by Sec. 15 is that the person making it is not a subversive person as defined in Chapter 86, and that the definition of ‘subversive person’ as contained in that act is any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises, or teaches, by any means, any person to commit, attempt to commit, or aid in the commission of, any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of the constitutional form of the Government of the United States or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence, or who is a member of a subversive organization or a foreign subversive organization. They contend that the addition of the word ‘revolution’ to the words ‘force or violence’ prohibits any one from advocating or teaching the alteration of the form of government by a peaceful revolution; that is, by some change which would be revolutionary in its nature, but which would not be accomplished by force or violence. *191 With that contention we are unable to agree. It is quite clear from the connotation that ‘revolution’ as used in Section 15 does not mean a peaceful revolution, but means a revolution accomplished by force or violence. These words are to be **338 construed together. Were there any doubt of this, it would be resolved by the title which uses the words ‘violence or other unlawful means'. The title of a statute, in a doubtful case, will limit an act to what the title intends. Baltimore v. Deegan, 163 Md. 234, 161 A. 282. Buck Glass Co. v. Gordy, 170 Md. 685, 185 A. 886. Brooklyn Apartments, Inc., v. Mayor & City Council of Baltimore, 189 Md. 201, 55 A.2d 500.

Another contention that Section 15 is more extensive than Article 15, Section 11, is that a subversive person also means a member of a foreign subversive organization, and the definition of a foreign subversive organization is any organization directed, dominated, or controlled directly or indirectly by a foreign government, the purpose of which is to advocate the overthrow, destruction, or alteration of the constitutional from of the government, and to establish in its place any form of government the direction and control of which is vested in the domination of any foreign government, etc. They note the absence in this definition of any reference to force or violence, and say that this would prohibit, for instance, a labor organization which is under the control of the labor government of Great Britain from advocating an alteration or change in the form of the government of the United States by means of a constitutional amendment which would give some dominion over this country by Great Britain. It is easy to be meticulous when you are attempting to dissect a statute and are trying to evade its provisions, but the proper rules of statutory construction require that all of its provisions be interpreted in accordance with the intent and meaning of the entire enactment. The Legislature has indicated its purpose in passing Chapter 86 not only by the title, but also by the preamble. This preamble recites the existence of a world Communist movement for domination *192 by a foreign power, and the methods used, and the objects attempted to be attained by that power are, in the opinion of the Legislature, a sufficient basis of the necessity for the passage of the act. An act passed by the Legislature for such a purpose comes to us ‘encased in the armor wrought by prior legislative deliberation.’ Bridges v. California, 314 U.S. 252, at page 261, 62 S.Ct. 190 at page 193, 86 L.Ed. at page 202, approved and quoted in American Communications Association v. Douds, 339 U.S. 382, 70 S.Ct. 674, 685, 94 L.Ed. 925 to which is added by Chief Justice Vinson, who delivered the opinion in the latter case, the words: ‘The deference due legislative determination of the need for restriction upon particular forms of conduct has found repeated expressions in this Court's opinions.’ The purpose of Chapter 86, as shown by its title and throughout its provisions, is not to restrict freedom of speech or thought, nor does it do so. The purpose of Section 11 of Article 15 of the Constitution, and of Chapter 86 of the Acts of 1949, is the same and they are to be construed together to effect that purpose. That is to prevent infiltration in our state, county, or municipal governments of persons who are engaged in one way or another in the attempt to overthrow the government by force or violence. We construe the affidavit required by Sec. 15 with respect to those desiring to become candidates for public office as a means of preventing such infiltration at its initial stage, thereby preventing confusion among the electors and that it is, in no sense, an additional oath of office.

Appellants also attack Chapter 86 as a whole on various grounds, all of which were discussed in appellee's brief filed in the Hammond v. Lancaster case, supra, to which *195 reference is made by appellants here. These grounds are that it abridges the fundamental rights of freedom of speech, press and assembly, that it is vague and indefinite and therefore violates due process, that it is a bill of attainder, that it attempts to establish guilt by association, and other similar contentions. It is contended that the act is basically inseparable in its provisions, and, therefore, it should be stricken down in its entirety.

The foregoing discussion is applicable to the case of the appellant Shub, but a different situation exists as to the appellant Gerende. The qualifications of a representative in Congress are set out in Section 2 of Article I of the Constitution of the United States. A representative must have attained the age of 25 years, must have been seven years a citizen of the United States, and must, when elected, be an inhabitant of the state in which he shall be chosen. No other qualifications are prescribed, and by Section 5 or Article I, it is provided that each House of Congress shall be the judge of the qualifications *196 of its own members. Members of Congress take the oath prescribed by Article VI of the Constitution of the United States, not the oath required by Section 6 of Article 1 of the Maryland Constitution. Article 37 of the Maryland Declaration of Rights does not apply to them. Nor does Section 11 of Article 15 of our constitution apply, because that is limited to offices and positions under the government of this State or its counties, municipalities, or other political subdivisions.

While Section 15 of Chapter 86 might in its terms be broad enough to cover candidates for Congress, such a construction would bring it in conflict with the Federal constitution, and we think therefore it cannot be properly so construed. Candidates for Federal offices must comply with state election laws before their names can be placed upon the ballot, Vaughan v. Boone, Md., 62 A.2d 351, but this does not authorize the State to include in the election or other laws of the State any requirement which would add additional qualifications to the office. There is nothing in the United States Constitution which in terms prevents a member of Congress from being a subversive person who seeks to overthrow the government of the United States by force or violence. If that is a disqualification, it must be determined by Congress itself and not by a state legislature or by a state court. This conclusion is supported by the applicable decisions.

It appears, therefore upon reasoning and authority, that a state cannot in any manner impose additional qualifications upon a candidate for representative in Congress, but that any one who is qualified under the United States Constitution may become a candidate, subject, of course, to reasonable provisions of time and method of getting his name upon the ballot. The making of the affidavit required by Section 15 is a reasonable safeguard of our state elections because it prevents the names of ineligible persons from being presented to the voters. That reason, as we have shown, does not apply to a candidate for representative in Congress because there is no such disqualification as to that office as there is to our state offices. Whatever may be the subversive activities of such a candidate, she is not ineligible unless the House of Representatives itself so holds. We have therefore been unable to approve the action of the trial judge in denying the appellant Gerende a place upon the ballot or in the voting machines, but have concluded that he erred in that respect and that she is entitled to have her name presented to the electors without making the affidavit required by Section 15.