Board of Canvassers of Election v. Noll

Boyd, C. J., delivered the opinion of the Court. Hart B. Noll and John F. O’Malley were candidates for the office of Clerk of the Circuit Court for Howard County at the election held November 2, 1915. The Board of Canvassers rejected the returns of the First Precinct of the Second Election District of that county, which it is alleged showed a plurality of forty-five votes for Noll, and counted 275 votes for O’Malley, instead of 272 votes, in the Sixth Election District, which resulted in a plurality of forty- ²⁹⁸ seven votes for O’Malley over Noll, instead of a plurality of one for Noll over O’Malley, which it is claimed the returns showed on their face. Noll filed a petition for a mandamus in the Circuit Court for Howard County, “To the end therefore that the said de»fendants may be ordered to reconvene and correct the errors made by them as above set forth,” and asking for a rule against the members of the Board of Canvassers, to show cause why a mandamus should not be issued “to compel the said defendants to correct the errors complained of.” An order was passed and the defendants answered.

A demurrer was filed to the answer, and after a hearing the lower Court passed an order by which the demurrer was sustained; and it provided that: “Upon the facts stated in the petition and admitted in the answer of the defendants, and the admission of counsel, it is further ordered that the writ of mandamus issue forthwith, commanding the defendants to convene as a Board of Canvassers and to issue a subpoena to the Judges and Clerks of Election of the Sixth Election District of Howard County, at the election held on the second of November, 1915, requiring them to attend before said Board of Canvassers and make such corrections in the returns from said Election District as the facts of the case require, such changes not to alter any decision ‘before duly made by them,’ and commanding the Board of Canvassers of Howard County, after such corrections in the returns from said Sixth Election District have been made as aforesaid, to canvass the votes for the Clerk of the Circuit Court for Howard County, in the First Precinct of the Second Election District of said County, as shown by the returns and tally sheets thereof delivered to said Board of Canvassers, and to add up said votes, together with the votes for the Clerk of the Circuit Court for Howard County in all other districts of said County, as shown by the returns and tally sheets of the election held on the second of November, 1915, in said county, ²⁹⁹ and to make abstracts and statements of tbe same, and to transmit sncb last named statements, so to be made by tbe defendants as aforesaid, attested by tbe signature of tbeir Chairman and Secretary, to tbe Clerk of tbe Circuit Court of said County.” Both sides appealed from the order so passed, and at their instance we advanced the case for hearing. The appeal of the petitioner Noll is based on the theory that the order of Court was not in accordance with the prayer of the petition and the admissions in the case — that the Court ought to have granted the prayer to require the defendants to correct the alleged error made by them in counting 275 votes, instead of only 272 votes for O’Malley in the Sixth Election District. The defendants contend that the demurrer ought to have been overruled and the petition dismissed, and that the order for a mandamus is not in accordance with the prayer of the petition. It is likewise contended that the determination of the canvassers in reference to the 275 votes was not subject to review by the Court and that O’Malley, having received 275 votes in the Sixth Election District, had a plurality of two votes over Noll, even if the alleged plurality of 45 votes, claimed in the petition to have been received by Noll in the First Precinct of the Second District, be allowed him, and hence a mandamus would be nugatory. ■ Some other points are made, but we will first consider the two principal questions in the case, as their determination may relieve us of the necessity of discussing some which may be regarded as of more technical character.

A contest over an election to this office must, of course, be made, if at all, before the House of Delegates, as provided by section 12, Article 4 of the Constitution, but that does not affect the power of the Court to require the Board of Canvassers to correct errors, if any, as provided for in section 86 of Article 33 of the Code. The two main questions may be thus briefly stated: 1. Did the Board of Canvassers properly and legally reject the returns from the First Precinct of the Second Election Dis ³⁰⁰ trict ? 2. Did they have the right to count 275, instead of . 272 votes for O’Malley in the Sixth District ? 1.

The canvassers say in their answer that they rejected the returns from that precinct, because when the “ballot box was delivered to and produced before these defendants, it was found that the seals required by law to be put upon the same were broken and destroyed, that the strips of paper containing the signatures of and authentication by the judges and required by la,w to be placed, pasted and sealed over the slits, keyholes, edge of the lid and other parts of the ballot box had been tom, broken and virtually destroyed, so that it was fully manifested that said ballot box had been seriously tampered with and its authentication, and identity as the ballot box of said precinct in large measure destroyed.” Although the canvassers did reject and refuse to count the returns from that precinct, which the petition alleges had given Noll a plurality of 45 votes, and thereby did malee it appear by the statements made by them under sections 82 and 83 of Article 33, that O’Malley had a plurality of 47 votes in the county (including the three votes to be considered below), it was not and could not be seriously urged in this Court that the canvassers had the right to reject those returns. Section 82 provides that, “The Board of Canvassers shall, upon being duly organized, open all the original statements or returns and tally sheets delivered or transmitted to them, and shall canvass and add up the votes and make abstracts or statements thereof in the following manner, as the case may require, namely,” etc. This Court said in Price v. Ashburn, 122 Md. 514 , that “It has been repeatedly held, that the duties of canvassing officers are purely ministerial and under the facts of this ease, the canvassers could only canvass and declare the result as shown by the returns.” Regardless of all other matters, the plain and conclusive answer to any contention that they could reject the returns of a district or precinct for such reason as is given in the answer is that the ballot boxes are not before them as canvassers. They are in no sense a part of the returns before ³⁰¹ them. "We have shown, above what they have before them, and by section 77 the judges of election in the counties are required to deliver to the proper officers the ballot boxes, keys, etc., before 12 oiclock noon of the second day after the election, and by section 78, it is provided that “The Board of Supervisors of Elections, upon receiving a ballot box and the key thereof, shall note the condition of the seal or stamp on each box, and make an entry of the facts touching the same in a book to- be kept by them, together with the name of the officer who delivered the box.

They shall deliver all the ballot boxes so sealed as aforesaid to the clerks of the Circuit Court for their respective counties * * * who shall put them in a secure place to which the public shall in no case have access,” etc. The Board of Canvassers, as such, have no right to have them before them, as they should then be in the custody of the clerk for safe keeping. In the answer it is not even alleged that the Board of Supervisors of Elections had noted any unusual condition about this box, but if they had so noted, the condition of the ballot boxes was, under the statute, of no more concern to the canvassers while acting in that capacity, than was the condition of any election booth which might be returned. In case of a contest the condition of the former often becomes material and pertinent, but not at the canvass by that board. The powers conferred on the Board of Canvassers are wholly different from those conferred on the same individuals when acting as Supervisors of Elections.

It is not easy to understand how the canvassers could have gone so far wrong, as to suppose they had the power to reject those returns by reason of the condition of the ballot box. It is too clear to require further discussion that they had no such power, and they should be counted. 2. But after counting the votes in that precinct, O’Malley would still have a plurality of two over Noll, and an important question, therefore, is whether the canvassers were right in counting 275 votes for him in the Sixth District. It is not denied that one tally sheet and the returns of the ³⁰² four judges and two clerks for that district showed that O’Malley received only 272 votes, but in three blocks of the other tally sheet, there were six marks instead of five.

Those three marks were not counted by the clerks of election, but were by the canvassers — hence the 275 votes, instead of 272. The petition alleges: “That said three votes so erroneously counted for said O’Malley by the said defendants were so counted by the defendants, or rather by two of said defendants, to wit, Philip S. W. Smallwood and Mathew A. Powers, the defendant, Walter S. Black, not concurring therein, upon the plea or pretense that three of the blocks upon one of the tally sheets of said 6th Election District did contain six pencil marks instead of five, although said three blocks were in each ease tallied by the clerk of election as containing five marks each,' and the total of said tally sheet as noted thereupon by the clerk of election showed only two hundred and seventy-two votes to have been cast for said O’Malley, as did also the remaining tally sheet and the statements of the results executed and returned according to law.” The answer alleges: “They respectfully show that the tally kept and made by one of the clerks of said Sixth Election District of the votes cast at said election in said district as required by law and the tally sheet made out by him containing said tally so made and kept by him, and which said tally sheet was returned to the Board of Canvassers as required by law for the purpose of canvassing the votes cast in said district at said election, contained clearly and distinctly and in the judgment of a majority of the Board of Canvassers, beyond the possibility of dispute, 275 tally lines or marks recorded as and representing votes cast at said election in said Sixth District for said O’Malley for said office of Clerk, and that accordingly, the said majority of the Board of Canvassers being convinced that said tally sheet correctly represented and set forth the results ³⁰³ of the election in said district, counted for said O’Malley the number of votes, namely, 275 votes, which appeared thereupon for said O’Malley. * * * That these defendants had to choose between the tally sheet aforesaid which showed that O’Malley had received 275 votes and the other tally sheet from said election district which showed that said O’Malley had received 272 votes; * * * and that in the exercise of their duties and powers, imposed upon them by law, being bound and required to determine which of the two tally sheets truly set forth the correct number of votes received by said O’Malley in said Sixth District in said election, they deemed it right and proper to give effect to the tally sheet, aforesaid, which contained 275 strokes or marks for him, not only because said tally sheet from its appearance commended itself to them as preferable, but because it contained clear, positive, original and contemporaneous entries or records of 275 votes actually cast for said O’Malley and set down upon said tally sheet by the clerk in the discharge of his duties respecting the same, whilst the ballots were being inspected, the results of the marks made by the voters upon them being announced, and the count of the votes and the making of the tallies recording the same going on.” It is impossible to find in the answer any satisfactory reason for the two canvassers adopting 275 as the correct number of votes cast for O’Malley, when the other tally sheet only had 272 “tally lines or marks,” as the answer calls, them, and the four judges and two clerks certified on both tally sheets and in the statements or written returns that 272 votes were cast for O’Malley. If it were true that they “had to choose between” the two tally sheets, as their answer alleges, no good reason is disclosed for selecting the one with 275 marks which had no extrinsic support for the three additional marks, rather than the one with 272, which was confirmed by the certificates of the six election officers, and it is not claimed or suggested that the one with 272 marks did ³⁰⁴ not contain “clear, positive, original and contemporaneous entries or records” of votes actually cast and “set down upon said tally sheet by the clerk,” etc., just as the answer speaks of the other one. Indeed, it is not pretended that they differ in any respect, excepting as to the number of marks, and, as we have seen, the number on the one corresponds with the certificate of the election officials, while the other does not.

There is not the slightest justification in the statute for pursuing such a course. They were not only not required to choose between the two tally sheets, but they had no authority to add three votes to those returned by the judges and clerks, merely because they found three more marks on the one tally sheet. If that were permitted, then a dishonest clerk of election might add some marks in his tallies without it being observed by others, agree with the other clerk as to the correct number, so as to throw him and others present off their guard, and then have them brought to the attention of the canvassers, who could count them if what is set up in this answer authorized those marks to be counted. Possibly some marks might in some way be fraudulently added after the judges and clerks signed the returns, or what may be more probable, a clerk might unintentionally make an extra mark in a tally without noticing it, or in the dim light election officials sometimes have to contend with, he might, in endeavoring to make a mark more distinct, have two instead of the one.

Moreover, as there were five marks in a block (as the petition alleges and the answer does not deny), the presumption would be in favor of the one which consistently had only five, rather than the one which had six marks in three blocks, especially if, as the petition alleges, “said three blocks were in each case tallied by the clerk of election as containing five marks each.” Other suggestions in support of the tally sheet having 272 marks might be stated, but it is not necessary. By section 73 of Article 33 of the Code, at the close of the polls, the judges are required