Board of Supervisors of Elections v. County Commissioners

Delaplaine, J., delivered the opinion of the Court. The Board of Supervisors of Elections for Dorchester County filed a petition for mandamus to compel the County Commissioners of Dorchester County to pay for voting machines purchased from the Automatic Voting Machine Corporation, of Jamestown, New York. Respondents demurred to the petition, and the Court sustained the demurrer. Petitioners appealed here from the order dismissing their petition.

The petition alleges: (1) On July 12, 1951, petitioners voted to purchase 43 voting machines, and notified re ¹¹⁶ spondents of that action.; (2) on September 25, 1951, petitioners signed a contract to purchase the machines with the understanding that respondents would pay for them, the first installment to be paid on or before March 1, 1952, and a copy of the contract was filed with respondents; (3) the machines were delivered on January 15, 1952, and were distributed throughout Dorchester County with the knowledge of respondents; but on March 6, 1952, respondents notified petitioners that they would not pay for them, although the use of voting machines in all elections in the county, beginning with the primary election in May, 1952, is mandatory; (4) petitioners have the sole power to acquire voting machines, and respondents have the sole power to pay for them; (5) the title to the machines purchased by petitioners lies in the vendor, and because of the default in payment they can be repossessed by the vendor at any time; (6) the law requires a new registration beginning April 7, 1952, but petitioners cannot make arrangements for the registration and the primary election and prepare instructions for the voters, unless they have assurance that respondents will pay for the machines; and therefore there must be prompt relief to enable petitioners to continue their work and to give the voters the opportunity to exercise their right of suffrage. The writ of mandamus is an extraordinary remedy afforded to prevent a failure of justice and to preserve peace, order and good government. State ex rel. McClellan v. Graves, 19 Md. 351, 374 , 81 Am.

Dec. 639 . Mandamus is not available except where the petitioner has a clear legal right to compel performance of a certain positive duty by the respondent and where the law affords no other adequate remedy. Jackson v. Hopkins, 113 Md. 557 , 78 A. 4 ; Hummelshime v. Hirsch, 114 Md. 39 , 79 A. 38 ; Pressman v. Elgin, 187 Md. 446, 451 , 50 A. 2d 560 , 169 A. L. R. 646. It has been held, for instance, that the State Comptroller, invested by the Constitution with power to adjust and settle public accounts, cannot ¹¹⁷ be compelled by mandamus to perform any act which involves the exercise of judgment and discretion.

Green v. Purnell, 12 Md. 329 . But it is well established that the court may compel public officials in a proper case to perform a ministerial duty. A ministerial duty, the performance of which may in a proper case be required by mandamus, is a duty in respect to which nothing is left to discretion and is a definite duty imposed by law and arising under conditions admitted or proved to exist. Magruder v. Swann, 25 Md. 173 ; Hall v. Tabler, 171 Md. 449 , 189 A. 206 .

Thus, where a statute requires the County Commissioners to levy for and pay a certain claim, mandamus will lie to compel them to provide by levy for its payment. County Com’rs of Worcester County v. Melvin, 89 Md. 37 , 42 A. 910 . The instant case calls for construction of two Acts of the Maryland Legislature, Laws 1949, ch. 734, and Laws 1951, ch. 639, amending the Maryland Election Law. Code Supp. 1947, art. 33, sec. 85.

The 1949 Act provides in sub-section (a) that the Boards of Supervisors of Elections of Baltimore City and of the respective counties shall have the power to use voting machines in all elections, general, primary and special. It then provides: “The said Boards, with the approval of, and upon such terms as may be agreed to by, the County Commissioners of their respective counties or the Mayor and City Council of Baltimore City, as the case may be, may purchase, rent, lease or otherwise acquire such number of voting machines as may be required to equip any or all of the polling places in said city or county, as the case may be, and may determine which precincts shall be first equipped