Duvall v. Swann

Jones, J., delivered the opinion of the Court. This case came before the Court below upon a petition for mandamus filed by the appellant in which he alleged that he was a citizen, taxpayer and qualified voter of Prince George’s ⁶¹⁴ County, in the State of Maryland, and was a duly nominated candidate of the Republican party for the office of County Commissioner of said county at the general election occurring in the year 1901; that the appellees compose the Board of Supervisors of Election for said county; that on the 26th day of October, 1901, one of the said supervisors produced at a meeting held by the board on that day, what purported to be a certificate of nomination, otherwise than by a convention or primary election, of candidates to be placed upon the official ballot to be voted for at the election held on the 5th of November, 1901, and stated that the said certificate had been delivered to him at his place of residence on the night of the 25th of October, 1901; that said purporting certificate of nomination was never filed in the office of the said Board of Supervisors of Election before the forenoon of the 26th of October, 1901, at about ten o’clock ; that said certificate was not so filed “ten days before the general election for the year 1901”—the day for holding said election being the 5th of November of .that year ; that therefore the said Board of Supervisors “had no right or power to treat the said pretended certificate of nomination if “otherwise in proper form, as a valid certificate of nomination nor to print the names of the persons purporting to be nominated by said certificate upon the official ballot to be used at the then approaching election of the 5th of November, 1901; that said certificate was “signed in the manner required by law, by at the most not more than 179 of the voters of Prince George’s County” as appears upon the face thereof; that said Board of Supervisors had voted to place the names of the person^ nominated by said certificate upon the aforesaid official ballot, “claiming * * that they can lawfully count in order to make up the 20Q voters required by law, the signatures of certain persons” to said certificate “who do not append to their respective signatures their respective places of business as required by law;” that the printing of the names placed in nomination by the said certificate upon the official ballot would add to the cost of printing the ballot and entail loss and expense upon the ⁶¹⁵ “petitioner in common with the other taxpayers of the said countythat printing the names upon the official ballot would “tend to confuse and mislead the voters” and “increase unjustifiably and without warrant of law the trouble which it will give to each of the voters of said county in marking their ballots, and will increase the danger of all of said ballots, being improperly marked and therefore rendered void that the party designation selected by the signers of the aforesaid certificate was “Reform Republican” and the said Board of Supervisors had resolved to print such designation on the official ballot after the names of the persons purporting to be nominated by the said certificate; that the petitioner as the duly nominated candidate of the Republican party had had his nomination cértified to the Board of Supervisors and his name would be printed upon the official ballot as such candidate ; that the party designation adopted by the signers of the said certificate “is so nearly similar to that of "the Republican party of which” the petitioner was a candidate that there was “a peculiar dangér that the printing upon the official ballot of the names” of the persons nominated upon the aforesaid certificate as “Reform Republican” would mislead the voters and would especially abridge, interfere with and encroach upon the rights of the “petitioner and other candidates of the Republican party in said county that the object of many of the persons who signed the said certificate was to confuse the voters ; that many of these persons were avowed supporters not of the persons nominated by the said. certificate, but of the regularly nominated candidates of the Democratic party ; that said persons, some of whom are named and are alleged to have relations, political, personal and professional with candidates on the Democratic ticket, did not intend to support or vote for the persons nominated by the said cerifícate and did not so intend at the time they signed the same; that the only purpose of preparing and filing said certificate was to confuse the voters and to secure a majority for a political party opposed to the petitioner; and that the said '“pretended” certificate of nomination was a fraud, had been obtained by fraud, ⁶¹⁶ and the only object and purpose thereof was “tó perpetrate a fraud upon the duly qualified and legal, registered voters of Prince George’s County.” The petition then alleges that by reason of the facts set out the said certificate of nomination is void and of no effect and prays that a writ of mandamus may issue “ commanding” the appellees “the Board of Supervisors of Prince George’s County * * to treat said pretended certificate of nomination as insufficient, ineffective and void, and to omit the names of all persons so nominated by said pretended certificate of nomina1 tion from the official ballot to be used at the next general election held in this State on November 5th, 1901.” The certificate of nomination referred to in the petition was filed under secs. 38 and" 42 of Art. 33, title, Elections of the Code. A demurrer was entered to the petition by the appellees which was sustained - and the petition dismissed. The petitioner brings this appeal for reversal of this action of the trial Court.

If this' Court should find that there was error in the judgment of the lower Court when rendered, the futility of reversing the judgment and ordering the writ of mandamus now is obvious. The petitioner could thus be' afforded no'redress for what he complains of, either in his capacity of taxpayer and voter, or as a candidate for office at the late election. All of the expenses from ■ the burden of which the petitioner as taxpayer asks td be protected have long since been incurred and most probably paid, and relief in this regard is beyond the reach of a writ of mandamus. In his capacity of candidate for office at the late election the writ, if issued now, would be quite as ineffective and useless.

If he was successful at the election, then he has not sustained the injury which it was the design to avoid in making application for the mandamus. If he was unsuccessful he must necessarily now be remitted to other remedies for proper and effective redress. Nor, if we assume that the petitioner has, as a citizen and voter, a standing in Court in this proceeding, to subserve a public interest by pursuing the remedy here invoked, could any such interest be subserved by the issuing of the writ in ⁶¹⁷ present conditions.- In every aspect, therefore, in which the case is presented to the Court upon this appeal the ordering of the writ would be entirely nugatory. This of itself is a sufficient reason for not disturbing the judgment of the Court below refusing the writ.

This was distinctly ruled by this Court in the case of Wells et al. v. Hyattsville, 77 Md. 125 , where although this Court found that the action which it was there sought to compel the public officials, against whom the' proceeding was directed, to- take, was the action they ought to have taken and that the action they actually took and which was complained of, was illegal and void, it affirmed the judgment of the lower Court upon the ground that to order the writ then would be nugatory—the Court closing the opinion, which was delivered by the present Chief Justice, as follows, “the order dismissing the petition will be affirmed, only because it is now too late to direct amandamus to issue.” This' case followed and applied the previous ruling of this Court in the case of State ex rel., O' Neill v. Register et al., 59 Md. 283 , where it was said (p. 289): “It (the writ) is never granted when it will be nugatory. It' will always be refused by the Court if it be manifest that it must be vain and fruitless, and can have no beneficial effect.” But aside from this could the application for a mandamus in this case have been properly