colorable only; but what we do say is, where, | least one of the essential conditions to conas here, the complaint charges, and the evi dence shows, that the transaction complained of is colorable merely, and resorted to by the husband for the purpose of defeating his wife's rights as his heir, he hoping thereby to obtain the full benefit of the property to the last hour of his life, and at the same time to be able to deprive her of all interest therein as his heir, is as much of a fraud on the part of the husband as it is for a debtor having in contemplation the incurring of an indebtedness to put his property beyond his control, and the courts have universally declared the latter to be in violation of the statute of frauds. The same principle should govern in this case. The transaction is shown to have had its inception in a desire on the part of both the grantor and grantees to deprive the wife and stepmother of the benefits conferred upon her as an heir of her husband under our statutes, and the action of the district court in characterizing the transaction a fraud upon the rights of the wife as an heir is founded upon the plainest principles of justice and equity, and must be sustained.

solidation under this provision was lacking
in these suits, namely, they were not between
the same parties. It is urged, however, by
appellees, that courts have the inherent right,
independent of statute, to consolidate suits
at law and actions in equity, where the in-
terest of the parties and the public may be
subserved by such consolidation. An exam-
ination of the authorities leads to the con-
clusion that, in the absence of legislation,
the power of consolidation of actions has been
exercised with the greatest freedom accord-
ing to the will of the particular judge before
whom the actions may have been pending,
without any definite rule having been estab-
lished for the guidance of the courts with
reference thereto. The provisions of our Code
with reference to consolidation are similar to
those to be found in many of the other code
states. See 4 Enc. Pl. & Pr. p. 676. No
case has been cited, and we know of none,
where a consolidation has been permitted
under such a statute, unless all the prescribed
conditions existed; and in a number of states
the code provision has been referred to as con-
trolling. In the case of Mayor v. Coffin, 90
N. Y. 312, the court says: "The order of
consolidation must be reversed because the
special term had no power to make it. The
authority to consolidate actions is given by
S 817 of the Code, and permits it only where
both actions are pending between the same
plaintiff and the same defendants for causes
of action which might have been joined."
See also Kipp v. Delamater, 58 How. Pr. 183;
Blesch v. Chicago & N. W. R. Co. 44 Wis.
593. For error in ordering the consolidation,
and in depriving each of the defendants of the
evidence of the others, the judgment must be
reversed, and the cause remanded.
Judgment reversed.

Campbell, J., concurring specially:

We have thus far considered the cause as made by the pleadings and evidence. We are satisfied, however, that a great injustice was done the defendants by the order of consolidation, made by the district court, as thereby they were prevented from fully presenting their defenses. The cases were consolidated upon the motion of the plaintiff and against the objection of the defendants and each of them, and by reason of such consolidation each defendant was deprived of the evidence of the defendants in the other suits; i. e. of the evidence of his codefendants after the consolidation. The ruling excluding these witnesses is based upon 4816, Mills' Anno. Stat., which provides, among other things, "that no party to any civil action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, when any adverse party sues or defends as the trustee or conservator of an idiot, of any deceased person, " etc. The argument of appellee in support of the ruling of the court below proceeds upon the basis that, after the consolidation, there was but one suit, to which all the defendants were parties. If the suits were properly consolidated, the exclusion of the witnesses must be upheld, but if the order of consolidation was not proper, the subsequent exclusion of the witnesses was also erroneous. The Civil Code provides at § 20 that, "when-ity opinion should prevail where tenancy by ever two or more actions are pending at one time between the same parties, and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated into one." 34 L. R. A.

At

Upon the ground that the order of consolidation was erroneous, I concur in the judg ment of reversal. From that portion of the opinion in which the Chief Justice holds the conveyance by the husband to be a fraud upon the property rights of the wife, I dissent. While joining with my associates in characterizing the husband's conduct, from a moral standpoint, as most reprehensible, I am not, as at present advised, prepared to say that the law of this state does not permit him to do what the evidence in the case shows that he has done. My reading of the authorities is that the rule announced in the major.

the curtesy and dower exist; but the appli cation of the principle to the case at bar, where, as in our state, dower and tenancy by the curtesy have been abolished, does not seem to me to be warranted.

MARYLAND COURT OF APPEALS.

James C. YOUNG, The Treasurer of Bel Air. alienable right, but is altogether conventional.

2. The right to vote "at all elections," If special or extra municipal powers be given by Const. art. 1..81, to every male citizen granted not affecting civil, political, or other of full age "who has been a resident of the state rights which concern all but which involve difor one year and of the legislative district of Bal-rectly the expenditure and payment of money, timore city or of the county in which he may it is but just that the project should be remunicipal elections outside of the city of Balti- quired to have the support of a majority in value of those who must pay the expense. Dill. Mun. Corp. 4th ed. 15.

APPEAL by defendant frford grant vote tional provision that to te je id within

Circuit Court for Harford County grant-vote he must as a prerequisite have paid within ing a writ of mandamus to compel defendant two years next preceding the time of the electo turn over the property in his possession as tion at which he claims a right to vote a state treasurer of the town of Bel Air to a person or county tax. who was alleged to have been elected as his -successor in office. Reversed.

The controlling voice ought to be with those tions, and declared that “the electors of such who have to bear the burden.

NOTE.-As to legislative power over municipal | vote in city elections) Coffin v. Thompson (Mich.) elections, see State, Lamar, v. Dillon (Fla.) 22 L. R. 21 L. R. A. 662, and note.

demonstrated; it must be a clear and unequivo- | act of 1896 and allowed all male citizens residcal breach of the Constitution-not a doubtful and argumentative implication.

Baltimore v. State, Board of Police, 15 Md. 476, 74 Am. Dec. 572; Anderson v. Baker, 23 Md. 628; State v. Baltimore & O. R. Co. 12 Gill & J. 438, 38 Am. Dec. 319; Dorchester County Comrs. v. Meekins, 50 Md. 39; Groff v. Frederick City, 44 Md. 78; Fell v. State, 42 Md. 71, 20 Am. Rep. 83.

Constitutions are not to be construed according to words used in a particular clause, but the whole must be considered.

Manly v. State, 7 Md. 135; Anderson v. Baker, 23 Md. 581.

Mr. George L. Van Bibber, for appellee: The Constitution having prescribed the qualifications of electors, these qualifications cannot be changed or added to by the legisla

ture.

Dill. Mun. Corp. 3d ed. § 195; Cooley, Const. Lim. 5th ed. 753; People v. Canaday, 73 N. C. 198, 21 Am. Rep. 465; St. Joseph & D. C. R. Co. v. Buchanan County Ct. 39 Mo. 485.

Municipal corporations are parts of the state government exercising delegated political powers for public purposes.

Regents of University v. Williams, 9 Gill & J. 397, 31 Am. Dec. 72; State v. Baltimore & O. R. Co. supra; Baltimore v. Root, Armstrong, 8 Md. 102, 63 Am. Dec. 602; Frederick v. Groshon, 30 Md. 444, 96 Am. Dec. 591; St. Mary's Industrial School v. Brown, 45 Md. 431; Pumphrey v. Baltimore, 47 Md. 147, 28 Am. Rep. 446; Daly v. Morgan, 69 Md. 468, 1 L. R. A. 757; Baltimore & E. S. R. Co. v. Spring, 80 Md. 517, 27 L. R. A. 72; Baltimore v. Keeley Institute, 81 Md. 115, 27 L. R. A. 646; Revell v. Annapolis, Id. 9.

Municipal corporations have no powers except such as are delegated to them by the legislature, and the legislature cannot delegate a power prohibited by the Constitution.

Baltimore & E. S. R. Co. v. Spring, supra.

Roberts, J., delivered the opinion of the

court:

ing within the corporate limits of Bel Air, above
the age of twenty-one years, to vote, notwith-
standing the right of a number of said citizens
to vote was challenged, upon the ground that
they were not assessed with the requisite,
amount of property. The election was accord-
ingly conducted as if the act of 1896 had not
been passed or was void of legal effect. The
result of the election was that the five persons
receiving the highest number of votes acted as
if they had been duly elected; having qualified
and organized, they proceeded to elect James
C. Young, the petitioner in this case, treasurer
of the town of Bel Air for the ensuing year.

The petitioner and appellee here, having qualified, demanded of the appellant, who had on the 1st Monday of May, 1895, been elected treasurer of Bel Air, the possession of the books, papers and other property of the town then in his possession. This the appellant refused to do, and the appellee accordingly filed his petition in the court below, for the writ of mandamusto compel the delivery to him of said books, etc. The appellant answered said petition, denying the validity of said election and justifying his refusal to deliver said books, etc., because the judges conducting said election had failed and refused to observe and give effect tothe provisions of the act of 1896, which prescribed a property qualification for said electors voting at said election. Whereupon issues were joined and the case was heard by thecourt below, without the aid of a jury. The court directed the writ to issue and from the order of the court this appeal is taken. The question lies within very circumscribed limits, but it is nevertheless a question which has not heretofore been passed upon by this tribunal. Whilst it has received consideration in some of the courts of the other states of the Union, it does not, however, appear to have been determined except in a very limited number of cases.

The contention here is that the 30th section of the act of 1896 is directly in conflict with the provisions of art. 1, § 1. of the Constitution of the state, which reads as follows: "All elections shall be by ballot and every male The sole object of this appeal is to test the citizen of the United States of the age of validity of the 30th section of the act of the twenty-one years or upwards, who has been a general assembly of Maryland, passed at Janu- resident of the state for one year, and of the ary session, 1896, chap. 359, entitled, "An Act legislative district of Baltimore city, or of the to Repeal Section 23 of Article 13 of the Code county, in which he may offer to vote, for six of Public Local Laws, Entitled Harford months next preceding the election, shall be County, Sub-title Bel Air, as Repealed and Re-entitled to vote, in the ward or election district enacted by the Acts of 1890, chap. 154, and also to Repeal Section 30 of Article 13 of the Code of Public Local Laws, Entitled Harford County, Sub-title Bel Air, and to Re-enact the Same with Amendments.

The facts proper to be stated are that an election for five town commissioners was held in the town of Bel Air on the 1st Monday of May, 1896, and was conducted in accordance with the provisions of its charter as amended by the act of 1896, except that the judges of election as required by § 30 of said act did not, as a condition precedent, require of each per son offering to vote at such election to show that he was assessed with $100 worth of real or personal property on the tax book of said town before he was entitled to vote. The said midges of election ignored this provision of the

in which he resides, at all elections hereafter to be held in the state.'

It is contended on the part of the appellant that this section of the Constitution plainly comprehends and includes within its express terms all elections, whether state, Federal, county, or municipal. Yet there is but one municipality mentioned in this section of the organic law, and, in fact, Baltimore city is the only municipality mentioned eo nomine in any part of the Constitution. This court in Smith v. Stephan, 66 Md. 381, Mr. Justice Bryan delivering the opinion of the court, said: "It is sufficient to say that no municipal elections except those held in the city of Baltimore are within the terms or meaning of the Constitution." Whilst the Constitution, art. 3. § 48, authorizes and empowers the general assembly.

to create corporations for municipal purposes, | lodged by the Constitution with the legislative it nowhere prohibits the legislature from imposing upon the qualified voters, residing within the corporate limits of a town, any reasonable restrictions it may deem proper, when seeking the exercise of the right of elective franchise in the selection of its officers. In this respect the power of the legislature is unlimited. The argument advanced at the hearing in this court, to the effect that the act in question is void because the Constitution has conferred the right and prescribed the qualifications of all electors in this state, the legislature is without authority to change or add to them in any manner.

If the premises of this contention were correctly stated, the argument and sequence would undoubtedly be correct. But, as already observed, the Constitution (art. 3, § 48) only in general terms authorizes the creation of corporations for municipal purposes, and leaves to the legislature the enactment of such details as it may deem proper in the manage. ment of the concerns of the corporation or which may be regarded as beneficial in the government of the same. The Constitution of this state provides for the creation of certain offices, state and county, which are filled, either by election or by appointment; and we regard it as an unreasonable inference to suppose that municipal elections, held within the state (outside the corporate limits of Baltimore city), can be properly termed elections under the Constitution, such as state and county elections; or that the framers of the Constitution ever contemplated that art. 1, §1, of that instrument was intended to apply to municipal elections, such as the one now un der consideration, which is the mere creature of statutory enactment.

|

department of our state government, save in some respects the city of Baltimore. The same question now under consideration here arose in the case of McMahon v. Savannah, 66 Ga. 217, 42 Am. Rep. 65. The suffrage clause in the Constitution of the state of Georgia is almost in totidem verbis the same as that in the Constitution of this state. The statute sought to be declared unconstitutional was assailed upon the ground that it imposed upon the electors of the city of Savannah the payment of a poll tax as a condition essential to their qualification as voters at any municipal election. The court held the statute to be a valid exercise of legislative power; and further held that "all legislative acts in violation of the Constitution are void, and it is the duty of the judiciary so to declare. But in cou sidering and passing upon the question of the constitutionality of the law, the rule is too well established and settled to be departed from, that it must be made to appear that the statute, before it is declared inoperative for that cause, must be 'plainly and palpably' in violation of the Constitution." Beall v. Beall, 8 Ga. 210. The solemn act of the gov ernment will not be set aside by the courts in a doubtful case.

In the creation of a new municipality, the Constitution devolves upon the general assembly the entire duty of giving vitality to and of organizing and fostering the body corporate without any other constitutional regulation than the mandate to provide for the system itself. It is therefore the mere creature of legislative sanction and the subject of statutory regulation. In the case of State, Lamar, v. Dillon, 32 Fla. 545, 22 L. R. A. 124, it was held that the suffrage provision in the Constitution of that state (which is substantially the same as art. 1, § 1, in the Constitution of this state), prescribing the qualifications of electors at all elections under it, does not apply to elections for municipal officers, but such elections are subject to s'atutory regula- | tions; and further, that it is competent for the legislature to prescribe the qualifications of voters at the same.

The incompatibility or repugnancy between the statute and the Constitution must be "clear and palpable." Parham v. Decatur County Inferior Ct. Justices, 9 Ga. 353. We also refer to the cases of Buckner v. Gordon, 81 Ky. 666, and Valverde v. Shattuck, 19 Colo. 104, as sustaining the views expressed in this opinion. The last-mentioned case was a special proceeding under a statute of the state of Colorado praying for the dissolution of the town of Valverde and its annexation to the city of Denver. In such proceeding the county court made an order requiring the mayor and trustees of the town to call an election for the purpose of determining the question of dissolution and annexation; this order required the question to be submitted to a vote of the qualified electors of said town at such election. The mayor and trustees of the town sought to vacate the order on the ground of the unconstitutionality of the statute under which it was obtained. The statute required that the question of dissolution and annexation be submitted to a vote of such of the qualified electors of such town or city (to be annexed) as have in the year next preceding paid a property tax therein." The suffrage clause, § 1 of art. 7 of the Constitution of the state of Colorado, is substantially the same (in so far as it involves the question under consideration in this case) as that of the Maryland Constitution.

It is only at elections which the Constitution itself requires to be held, or which the Mr. Justice Elliott delivering the opinon of legislature under the mandate of the Consti- the court observes: "It is manifest that some tution makes provision for, that persons hav- restriction must be placed upon the phrase 'all ing the qualifications set forth in said 1, elections,' as used in 1 [of the Constitution] art. 1, are by the Constitution of the state else every person having the qualifications to be qualified electors. Nowhere in the therein prescribed might insist upon voting at Constitution are the governments of munici- every election, private as well as public, and palities in this state, or their officials, either thus interfere with the affairs of others in which clothed with power or designated as any part he has no interest or concern. In our opinof our state government, but their very crea-ion, the word 'elections,' thus used, does not tion, together with all the powers and attri- have its general or comprehensive significabutes which attach to their management, are tion, including all acts of voting, choice, or

MASSACHUSETTS SUPREME JUDICIAL COURT.