Fitzgerald v. Quinn

Boyd, C. J., delivered the opinion of the Court. A first question in this case is whether the statutes of the-state allow a review by the circuit court of a county of a decision by the hoard of supervisors of elections on a recount and recanvass, under section 217 of article 33 of the Code, of votes cast in a primary election. Upon a petition to the board of supervisors of elections for-Somerset County for a recount and recanvass of ballots cast in a primary election, certain ballots were rejected, and it is-alleged that the appellee here would have been nominated for ⁵⁴⁵ state senator if those ballots had been counted, but as a result of the rejection was declared defeated for the nomination. In a petition by him to the circuit court for a writ of mandamus to compel the supervisors to count the rejected ballots, it was alleged that all the ballots at two polling* paces had been rejected because some only had been improperly initialed by or for the judges of election.

The answer of the supervisors conceded the ground of rejection in wrongful initialing of ballots, but denied that ballots other than those improperly initialed had been rejected, and alleged that, on the contrary, each individual ballot had been considered, examined, and acted upon, and that those rejected had been rejected for the improper initialing. A demurrer was filed to this answer, and duly argued; and, by an order passed upon the case presented on the face of the petition without denial in the answer, as the circuit court found, it was held that the rejection of the entire lot of ballots cast at the two polling places was an improper, arbitrary proceeding, and the court issued its writ ordering that the supervisors recount and recanvass the whole. The order appears to have taken it as settled upon the allegation of the petition, without denial in the answer, that there had been a rejection of the whole for supposed defects in some ballots. But, as has been stated, the answer, as this court r eads it, denied rejection of ballots other than those found wrongly initialed, and the only fact conceded and so settled for the court u^on the face of the papers was this one fact, that ballots initialed in the supposed wrongful manner had been rejected.

And if that is true, this is the only fact upon which-the judgment might be asked on the papers alone. Rejection cf more ballots than those initialed as described was a controverted fact, to be settled only by proof, which has not been taken. Moore v. Bay, 149 Md. 286, 289 . The question now presented for decision, therefore, is whether the trial court should have disregarded as insufficient the answer so explaining the rejection of ballots, and have ordered the supervisors to count ballots initialed in the manner complained of.

By Code, art. 33, secs. 200 and 75, it is provided that, in ⁵⁴⁶ a primary election, as well as in a general election, the judge of election holding the ballots at a polling place, having first written in ink the voter’s name and number upon the coupon attached, shall deliver a ballot to each voter, “after having likewise written in ink his own name or initials upon the back thereof, and the two clerks of election shall at the same time enter the name of the voter upon their poll books.” And by section 80 it is provided that “any ballots which do not have endorsed thereon the name or initial of the judge who héld the ballots” shall be rejected on the subsequent counting to determine the results of the election. It is alleged in the petition, and conceded by the answer, that in a Democratic primary election held on September 8th, 1930, in Somerset County, ballots cast in Smith’s