Walker v. Oswald

11 A. 711, 68 Md. 146, 1887 Md. LEXIS 19

• Court: Court of Appeals of Maryland
• Decided: December 16, 1887
• Status: Published

Opinion

McSherry, J.,

delivered the opinion of the Court.

By an Act of the General Assembly of Maryland, passed at the January session-of eighteen hundred a'nd eighty-six, chapter two hundred and forty-eight, after making provision as to the mode of procuring and the price 'to be paid for a license authorizing the sale of spirituous, fermented and intoxicating liquors in Washington County, it is enacted as follows:

“ Sec. 7. And be it enacted, That upon the first Tuesday after the first Monday of November, eighteen hundred and eighty-six, the voters of said county at the general election then to be held, shall determine by ballot whether or not the provisions of this Act shall go into effect in said county; those favoring the Act will cast their ballots with the words written or printed thereon, 'For the High License Law,’ and those opposing the Act will cast their ballots with the words written or printed thereon, ‘ Against the High License Law/ and it shall he the duty of the judges of said election to make a full return of the ballots cast as aforesaid, as now provided by law, to the clerk of the Circuit Court for Washington County, who, upon the certified returns, shall immediately make proclamation as to the result of said election.”

“Sec. 8. And be it enacted, That if a majority of the voters of said county shall determine by their ballots in favor of the ‘ High License Law/ and the clerk of said Court shall so proclámate to the people of said county, the provisions of this Act shall take effect on the first day of May, eighteen hundred and eighty-seven.”

At the general election which was held on the second day of November, 'eighteen hundred and eighty-six, in Washington County, the aggregate number of votes cast for the several candidates for Congress, was eight thousand six hundred and eighty. The number of votes cast “for the high license law” was four thousand three hundred and fourteen, and the number “against the high license law” was three thousand eight hundred and twenty-five. On the fifth day of November the Clerk of the Circuit Court for that county issued his proclamation setting forth the number of votes cast, both for and against the high license law, and certifying and declaring “that it appears from said returns, now on file in my office, that upon said question a majority of the voters of said county have determined by their ballots in favor of the ‘high license law.’ ” On the second of May following, the appellant, a dealer in spirituous, fermented and intoxicating liquors, in the county named, applied to the Clerk of the Circuit Court for a license authorizing him to sell such liquors, and tendered to the clerk, in payment for the license, the amount fixed by the general license laws of the State, which amount was less than that prescribed by the Act now under consideration. The clerk refused to issue the license to the appellant unless he would pay the sum named in the Act now in question, and would also comply with the other provisions thereof. Upon such refusal the appellant filed in the Circuit Court for Washington County a petition charging that “in truth and in fact a majority of the voters of said county at said election, have not determined by their ballots in favor of the high license law, and that said clerk has not correctly and truly proclamated the result of said election in accordance with the requirements of said Act of Assembly;” and praying for a writ of fnandamus against the appellee, the Clerk of that Court, requiring him to issue to the appellant the license previously applied for, without a compliance on the part of the appellant with any of the provisions of the Act now before us. The appellee answered this petition, and a statement was filed showing the number of votes cast at said general election upon this measure and for the congressional candidates; and a pro forma order was passed refusing the writ. From that order this appeal has been taken.

It thus appears, and in fact it is conceded, that the number of votes cast in favor of the high license law was not equal to a majority of all the votes cast at the same election for the several candidates for Congress; though the votes actually cast in favor of this law constituted a majority of all the votes polled on that particular subject. The single question, therefore, presented by this appeal is, whether, under these circumstances, the Act became operative and effective; or, stated in other words, did the adoption of the Act depend upon its receiving in its favor a majority of all the votes cast at that election upon some other subject or subjects; or upon its receiving a majority of the votes cast specifically for and against its adoption ?

It has been settled, both in England and in this country, by an almost, if not quite, unbroken current of judicial decisions from the time of Lord Mansfield to the present day, that when an election is held at which a subject-matter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves and those who being present abstain from voting, are considered as acquiescing in the result declared by a majority of those actually voting; even though, in point of fact, but a minority of those entitled to vote, really do vote. Thus in Oldknow vs. Wainwright, 2 Burr., 1017, which was a feigned action to try a right of election to the office of town clerk of Nottingham, the fourth issue was “whether Thomas Seagrave was duly elected by” the Mayor, Aldermen and Common Council; and there was a special verdict, wherein after setting out the constitution of the borough, that the voices were all equal votes, the vacancy of the office of town clerk and a regular summons to elect another, it proceeded as follows: “That the whole number of electors was twenty-five ; and that out of that number, twenty-one assembled on the twenty-sixth of May, pursuant to the said summons; that the Mayor put Thomas Seagrave in nomination, and that no other person was put in nomination; that nine of the twenty-one voted for him, but twelve of them did not vote at all, but eleven of them protested against any election at that time,” &c., Lord Mansfield held : “Whenever electors are present, and don’t vote at all (as they have done here) they virtually acquiesce in the election made by those who do.” Judge Folger in People, ex rel. Furman vs. Clute, 50 N. Y., 461, delivering the opinion of the Court says: “It is also the theory and practice of our government, that a minority of the whole body of qualified electors may elect to an office when a majority of that body refuse or decline to vote for any one for that office. Those of them who are absent from the polls, in theory and practical results, are assumed to assent to the action of those who go to the polls, and those who go to the polls and do not vote for any candidate for an office are hound by the results of the action of those who do,” &c.

Conceding this to be true with respect to a special election held for the purpose of submitting a single question to the popular vote, it is insisted on the part of the appellant, that a different principle should prevail in a case like this where, at a general election, the measure, though receiving a majority of the votes cast on that subject, failed to receive a majority of the votes cast upon some other subject. Hence, as we have already stated, the sole ground upon which it is claimed that the Act in question failed to become effective is, that at the general election when the subject was voted on, less than a majority of those who voted for the Congressional candidates cast their ballots “ for the high license lawand not that a majority of those who voted on this subject did not vote in favor of it. This objection to the adoption of the Act is founded exclusively upon the construction which is sought to he placed upon the words of the eighth section—“ a majority of the voters of said county ”—taken in connection with the evidence furnished by the vote on the congressional canvass, that there were more votes in the county than the number who voted upon this measure. If this construction, which confines the language to what is alleged to be its literal import, without reference to the provisions of the preceding section, is to prevail, it would be, it seems to us, as applicable in the case of a special election where but one subject is submitted, as it is claimed that it is in the case of a general election, where several subjects or persons are to be voted for—the only difference between the. two instances being in respect to the evidence which might be adduced to ascertain the actual number of the voters of the county. In regard to a general election it is urged that the highest aggregate vote cast furnishes the evidence as to the number of the voters of the county. At a special election it is not improbable that only a minority of the voters, well known to he an unmistakable minority, may vote. This fact might be susceptible of proof—might be in reality self-evident. Yet in the latter instance those who absent themselves from the polls, and those who being present abstain from voting, are regarded as assenting to the result declared by those who do vote. Upon what principle would it he incompetent to apply the same presumption to those, who, though attending a general election and voting on other subjects, abstain from voting upon one particular matter like the Act in question ? The very concession that a minority may elect necessarily implies that there is a larger number of voters who do not vote, of whom that minority is merely a fraction. Hence, the admission that a majority of those entitled to vote did not vote, does not preclude the minority who actually do vote from determining the result by their ballots. That is precisely what was decided in Oldknow vs. Wainwright, where there were twenty-five entitled to vote, of whom twenty-one were present, and only nine voted, and eleven protested against an election. The special verdict showed how many voters there were, how many were present and that only a minority voted; and yet it was held that the election by that minority was perfectly valid.

Recurring to the language of the Act, it will be observed that the Legislature has with particularity provided the forms of the ballots, both for and against the high license law; and that it has prescribed that “a full return of the ballots cast as aforesaid,” that is, cast for and against the Act, should be made by the judges of election to the clerk, and that the latter, “ upon the certified returns, shall immediately make proclamation as to the result of said election.” What possible reason was there for the Legislature making provision with such exactness for “a full return of the ballots cast,” both for and against the high license law, and for a proclamation by the clerk upon the certified returns, if it was not designed that exclusive reference to the votes cast on that subject should he had in determining whether the Act did or did not become operative ? It is perfectly manifest that the phrase, “ full returns of the ballots cast as aforesaid,” refers to the votes cast for and against the high license law and to no other votes ; and that the duty of the clerk to “ make proclamation as to the result of said election,” could only he performed by announcing the result as evidenced by the certified returns of the votes cast upon that subject. If, therefore, he was confined in making his proclamation as to the result of the election, to the returns made to him of the votes cast for and against the adoption of this Act, no votes cast at the same election, for some other purpose can be considered, counted or resorted to in determining the question of the approval of this measure. Indeed, had the Legislatnre intended that the Act should not become effective unless a majority of all the voters of the county affirmatively voted for it, it is difficult to conjecture a reason for the insertion of the provision respecting the casting and counting of votes against the measure, because, upon, the assumption that the construction contended for is correct, if the votes cast in favor of the Act had not been equal to a majority of all the voters voting for some candidate or for some other measure at that election, the Act would have failed to take effect, notwithstanding no votes had been cast against it at all; and consequently it would have been wholly unnecessary to make any provision whatever for casting ballots against the adoption of the law. The proclamation which the Olerk is directed to make, is “ as to the result of said election,” that is, the election held upon this question. The eighth section of the Act must be read in conjunction with the seventh section, which we have been considering; and thus read, clearly means not a majority of all the voters of the. county voting on some other subject, hut a majority of all the voters of the county who vote upon this Act. The contrary construction would place these two sections in antagonism, and would cause the eighth to render nugatory the provisions of the seventh section.

The conclusion which we have reached is fully supported by the Supreme Court of the United States in Saint Joseph Township vs. Rogers, 16 Wall, 644, where the language “ a majority of the legal voters of the township,” was held to “ require only a majority of the legal voters of the township voting at the election,” &c.; and by the same Court in The County of Cass vs. Johnston, 95 U. S., (5 Otto,) 360. In this last named case all the cases relied upon by the appellant are reviewed, and the majority of the Court through Chief Justice Waite, states the question there presented as follows : “ The first question presented for our determination in this case is, whether the ‘ Township Aid Act’ of Missouri is repugnant to Art. XI, sec. 14, of the Constitution of that State, inasmuch as it authorizes subscriptions by townships to the capital stock of railroad companies wherever two-thirds of the qualified voters of the township voting at an election called for that purpose shall vote in favor of the subscription, 'while the Constitution prohibits such a subscription, ‘ unless two-thirds of the qualified voters of the * * * town, at a regular or special election to be held therein, shall assent thereto.”

The Court quotes with approval the construction placed by the same tribunal in 16 Wall., upon the clause “a majority of the legal voters of a township,” and adds, “this-we understand to be the established rule as to the effect of elections, in the absence of any statutory regulation to the contrary. All qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares. Any other rule would he productive of the greatest inconvenience, and ought not to be adopted, unless the legislative will to that effect is clearly expressed.”

(Decided 16th December, 1887.)

Other cases to the same effect might be cited, hut it is not deemed necessary to do so.

Being of the opinion, for the reasons assigned and upon the authorities quoted, that the two sections construed together clearly mean that the Act was to become operative and effective if it received, as it did, at the general election referred to, the approval of a majority of the voters of the county voting on that subject, we will affirm the order appealed from.

Order affirmed.