Revell v. Holladay

61 A. 1081, 102 Md. 82, 1905 Md. LEXIS 132

• Court: Court of Appeals of Maryland
• Decided: October 19, 1905
• Status: Published

Opinion

Pearce, J.,

delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court for Anne Arundel County, dismissing the petition of the appellants for a writ of mandamus against the Board of Supervisors of Elections for that county, commanding them to cause to be printed upon the official ballots to be cast at the election to be held in that county on November 7th, 1905, the names of the several petitioners, as candidates for the offices for which the petition alleges they had been respectively nominated by a convention held in the city of Annapolis on July 26th, 1905, as candidates of the Democratic party, in compliance with the party custom and with the provisions of ch. 603 of the Acts of Assembly of 1904, entitled “An Act to legalize primary elections in Anne Arundel County. ”

This Act provides that political parties which, at the general election in November, 1903, polled ten per cent of the entire vote of the county, should thereafter nominate their candidates for public office, and elect their delegates to conventions, under the provisions of that Act, and not otherwise.

It requires fifteen clear days notice of the time and place of holding any primary, and publication of the call therefor for at least two weeks in two newspapers published in that county.

It forbids the holding of the primaries of two different parties on the same day, and gives the preference of the day selected to that party whose call is first inserted in the two papers.

It requires the Supervisors of Election within seven days from the issuance of any such call to appoint three judges and two clerks of election to conduct such primary, and prescribes the manner of their appointment, the character of the ballots to be used, the necessary machinery and rules for conducting’ the primary, and for returning and certifying the result thereof to the Supervisors of Election, and for the delivery of said returns by them to the chairman of the State Central Committee of the county, for the party holding such primary, on the day when the county convention is to be held; and it makes said returns prima facie evidence of the right of any delegate to a seat in the convention.

It requires the judges and clerks of election appointed thereunder to take an oath in the usual form prescribed for judges and clerks of election under the general law of this State, and provides penalties for the violation by any person of the provisions of-the Act.

The above is a brief summary of all the provisions of the Act.

The petition in this case alleges that the Democratic State Central Committee of the county, on June 6th, 1905, issued a call for primaries to be held in the several election districts on July 22nd to choose delegates to a county convention to be held on July 26th, at the court house in Annapolis, to select delegates to the state convention, and to nominate candidates for public offices to be filled at the election on November 7th, 1905; that all the requirements of law relating to said primaries and county convention were complied with, and that the petitioners were duly nominated by said county convention for the respective offices as stated in said petition, and that the returns of the said primaries were duly certified to the Board of Supervisors of the county, and by them duly offered to be delivered to the chairman of the State Central Committee of the Democratic party in that county, who refused to receive the same,

The petition then alleges that notwithstanding the premises, and notwithstanding the fact that the Democratic State Convention constituting the governing power of the Democratic party in the State, and which met on September 28th, 1905, decided that the said primaries and the said county convention had been held in compliance with party custom and with the requirements of ch. 603 of 1904, the Board of Election Supervisors of the county have declined, and refuse to cause the petitioners names to be printed as candidates for said offices for which they were nominated, upon the official ballots which, .under sec. 53 of Art. 33 of the Code of Public General Laws of Maryland, it is their duty to provide for use by the voters at the election on November 7th, 1905.

The Board of Election Supervisors answered said petition, denying that the convention of July 26th was held in con formity with ch. 603 of 1904, and denying that any of the nominations then made, or attempted to be made, were duly and legally made. The answer alleges that on July 21st, 1905, the Democratic State Central Committee of the county rescinded the call of June 6th, 1905, for primaries to be held on July 22nd and for a county convention to be held on July 26th; and issued a new call for such primaries to be held on August 19th, 1905, and fora county convention to be held on August 22nd, 1905, and assigned the following reasons for their action:

'1st. That the Election Supervisors failed to appoint all of the judges and clerks within seven days from the date of the call, and appointed others contrary to the provisions of law.

2nd. That since the date of the first call, one of said supervisors had been removed by the Governor, and another had resigned, and these vacancies had been filled by the Governor.

3rd. That after such removal one Democratic member, and the Republican member of said board, met without authority of law and made additional appointments of j udges and clerks of election for such primaries.

4th. That the newly appointed members of the board had not been able to get possession of the records of the office, and it was impossible to ascertain who were the legally and who were the illegally appointed judges and clerks, and,

5th. That the State Central Committee for the county deemed it best to postpone the primaries under these circumstances “in order that they might be legally held, and that the Democratic voters might have the privilege of expressing their honest will.” After issuing the call on July 21st postponing the .primaries to August 19th.it was discovered on July 24th that it became necessary in order to comply with a resolution of the Democratic State Central Committee of the State requiring the primaries throughout the State to be held not later than August 12th, to change the date from August 19th to August 12th, and the State Central Committee for the county accordingly on July 24th issued a new and corrected call for primaries to be held on August 12th and a county-convention to be held on August 15th, 1905.

The answer further alleges that the Supervisors recognizing the State Central Committee of the county as duly authorized to speak for the party in matters pertaining to party government, not regulated by law, notified all the judges and clerks previously appointed, of this action of the committee, by notices served by the- Sheriff of the county before the hour set for holding the primaries originally called for July 22nd.

The answer further alleges that in certain precincts, the judges and clerks, in obedience to the postponed call did not attend the primaries originally called for July 22nd, and that in other precincts no ballot-boxes or poll-books were furnished by the Supervisors as required by law, and that from some precincts they had received no returns of said primaries, and that for these and other reasons the county convention held July 26th had no power or authority to nominate candidates for public office, and that when the Supervisors offered to the chairman of the State Central Committee for the county the returns which they had received, he declined to accept them on the ground that- the primaries had been held invio•lation of the law.

The answer admits that a paper purporting to be a certificate of nomination of the petitioners by a Democratic convention held July 26th was filed with the Supervisors on August 15th, 1905, but alleges that on August 22nd, 1905, a certificate of nomination of candidates for the same offices was filed with them purporting to have been made by a Democratic convention held August 15th, 1905, in pursuance of said postponed call for primaries to be held, and actually held on August 12th, 1905, and for a county convention to be held and actually held on August 15th, 1905.

The answer admits that the Supervisors have declined to cause the petitioners names to be printed on the official ballot, because they allege they can only legally print thereon one set of nominees by a Democratic convention, who must be those nominated and certified by a Democratic convention held under ch. 603 of the Acts of 1904, and that they have already determined that the candidates certified by the convention held August 15th are those legally nominated under the provisions of said Act, and that they so informed the petitioners through a resolution to that effect passed August 24th, 1905, a copy of which was filed as an exhibit by the petioners with their petition.

The answer further alleges that the primaries of August 12th and the convention of August 15 th were held in strict conformity with the requirements of ch. 603 of 1904, and that in determining that the nominees of that convention were entitled to be placed on the official ballot as Democratic nominees, they acted in the exercise of the judgment and discretion reposed in them,.and are not liable to the writ of mandamus.

The petitioners replied to so much of the answer as denies the legality of their nomination, that they were made as set forth in paragraphs 2 to 7 of their petition.

As to paragraph 4 of said answer which relates to the nonattendance of judges and clerks in certain precincts on J uly 22nd, and the failure of the Supervisors to furnish ballot-boxes and poll-books in other precincts, the petitioners joined issue on such allegations as traverse any facts alleged in the petition, and demurred to all the other allegations of the answer.

The respondents joined issue on the first paragraph of the replication, and on the demurrer of the petitioners to the residue of the answer, and the case was heard before the Court by agreement of counsel.

In the view which we take of this case there is but one question which need be considered, and that is whether the State Central Committe for the county had the power to postpone or change the call for holding the primaries, and the county convention, and if so whether the power was properly exercised under existing circumstances,'or whether the power was exhausted when the call was issued for holding the primaries on July 22nd and the convention on July 26th. If they had that power, and have exercised it in good faith and. for good and valid reasons, then the primaries of July 22nd and the convention of July 26th were not legally held, and the petitioners are not entitled to have their names placed upon the official ballot; and, e converso, the nominees of the convention of August 15th are entitled to have their names placed upon the official ballot, provided the primaries and the county'convention held under the postponed call were conducted in technical conformity with the requirements of the Act of 1904, ch. 603, which is admitted by the demurrer to the answer. , ,

We think it is clear that the power of the State Central Committee for the county is not exhausted by the mere issuance of a call selecting a day for holding primaries and a county convention. . ' ’ • •

Before the passage of ch. 603 of 1904, this committee was unquestionably the sole governing power of the party-as to the selection of the time for holding primaries and the county convention, subject perhaps to any controlling authority which the State Central Committee might possess to prescribe a date for the State convention, and to fix a period within which the county primaries should be held, as was done in this instance, though we are not to be understood as expresing any opinion upon the power of the State Central Committee for the State in that regard, that question being a purely political question with which we have nothing to do. That Act in nowise limits or restricts the power and authority of the county committee in that regard. Before its passage, the power to fix these dates necessarily implied the power to change them by a new seléction, made in the honest exercise of judgment and discretion for the welfare of the party, and we can discover nothing in the letter or spirit of this Act which can be held to take away or limit the discretion theretofore vested in the committee, further than may become necessary in making any such change in order to comply with the requirements as to notice of the changed date, and any other requirements applicable to any call whether original or changed.

There may be many adequate reasons for changing a call of this sort after it has been issued. The outbreak of an epidemic of disease in the county; the absence” from their homes for any unusual cause of considerable numbers of party voters; the pressure of needful labor, as in harvest or in seeding time which cannot be neglected without serious injury to agricultural communities, these, and other reasons which might be mentioned would amply justify such a postponement in order to insure fuller and freer expression to the will of voters in the party.

(Decided October 19th, 1905.)

If it were alleged and shown in the present case that the change of date was intended to work some fraud upon one element or faction in the party, or to aid in the perpetration of some political trick upon some candidate or set of candidates, a different question, would arise. But there is no such charge here, and it will be time enough to consider such a question when it does arise.- The facts alleged in the resolutions of the State Central Committee for the county at the time of the postponement, referred to in respondent’s answer and admitted by the demurrer, in our opinion constitute reasonable grounds for the postponement and are fairly within the discretion which we think should be, and is, committed by a fair and reasonable construction of the Act of 1904 to the committee as the governing body of a political party in the county. It is not charged, and does not appear that this postponement intentionally or otherwise gave any advantage to one faction over another. Each stood alike under its terms, and it was as important to one as to the other, that the nominations when made should be lawfully and regularly made, so that they could not be excluded from the offical ballot, either by the voluntary action of the supervisors, or at the instance of any objector. The sole material question raised upon the pleadings and the evidence is the question of the power to postpone for proper cause, and being convinced that this power existed before the passage of the Act of 1904, and is not taken-away thereby, and may still be exercised honestly and in good faith, it follows that the petitioners are not entitled to have their names printed as Democratic nominees upon the official ballot ánd that the order dismissing their petiton must be affirmed.

Order affirmed with costs to the appellees above and below.