Hill v. Mayor of Colmar Manor

Brune, C. J., delivered the opinion of the Court. The appellants, Harry W. Hill and Olin L. Merchant, filed a petition in the Circuit Court for Prince George’s County for a writ of mandamus to require the Mayor and Town Council of Colmar Manor (1) to count write-in votes cast for them, respectively, for the offices of Mayor and Councilman for the Third Ward, (2) to declare the installation of others in those offices to be void, (3) to install the appellant Hill as Mayor and the appellant Merchant as Councilman ⁴⁸ for the Third Ward, and (4) to produce records and perform other acts more or less incidental to the foregoing action. The Mayor and Town Council of Colmar Manor, a municipal corporation (usually referred to below as “Colmar Manor” or the “Town”), the appellants’ rivals as candidates for Mayor and Councilman and the Board of Election Supervisors of Colmar Manor were named as respondents. They filed a demurrer and an answer to the petition.

Their demurrer was sustained and the petition was dismissed. The appeal is from the order of dismissal. The question at issue is whether or not the write-in votes for the appellants should have been counted. The answer depends upon the construction of the charter of Colmar Manor.

The Town was incorporated by Chapter 178 of the Acts of 1927, and its charter, as amended, constitutes Sections 373 to 415, inclusive, of the Code of Public Local Laws of Prince George’s County (Everstine, 1953 Edition). For brevity, those sections of the Prince George’s County Code which are included in the Charter of Colmar Manor will be referred to by their respective numbers in that Code, but as parts of the Charter of Colmar Manor. Section 380 of the Charter of Colmar Manor (as amended by Chapter 37 of the Acts of 1933, and not since amended) provides that “A person shall be deemed a candidate for the office of Mayor or Councilman and his name as such candidate be placed on the ballots prepared by the Board of Election Supervisors provided such person” possesses certain qualifications referred to below “when such person shall have at least fifteen days * * * prior to the date of * * * election, filed with the Board of Election Supervisors a petition, signed by at least ten qualified voters of said town, setting forth (a) the name and address of the candidate, (b) the ward from which he seeks election, (c) the facts showing that he is eligible to the office of Mayor or Councilman, and (d) that he desires his name placed on the ballot as a candidate.” This Section further provides that within five days after the time for filing has expired, the Board shall “cause to be posted ⁴⁹ in such manner as shall give general publicity the names of the candidates and the positions to which they aspire.” The qualifications which Section 380 requires relate to age, residence and the ownership of property in the Town. The petition alleges in rather general terms that the appellants meet these requirements.

Since the demurrer admits such allegations and since the case was decided on the demurrer, no more need now be said on this subject. For reasons which are not disclosed on the record the appellants did not follow the procedure prescribed by Section 380 to have their names printed on the ballots. All of the votes which they received were write-ins; and according to the petition, each of the appellants received more votes by this method than did their respective opponents whose names were printed on the ballots. Blank lines were provided for writing in the names of candidates whose names were not printed on the ballots and boxes were placed at the end of such lines for “X” marks.

The petition alleges and the demurrer admits (though the answer denies) that for more than twenty years prior to the 1955 election “the right of the voters of Colmar Manor to vote by writing in the name of the candidate of their choice has been recognized and upheld.” The report of the Board of Election Supervisors of the Town showing the result of the vote as above stated was presented at a special meeting of the Mayor and Town Council held on July 21, 1955. By a vote of 3 to 2 (Messrs. Torvestad and Rian being 2 of the 3 who constituted the majority), a resolution was adopted declaring Messrs. Torvestad and Rian to have been duly elected as Mayor and as Councilman from the Third Ward, respectively.

The write-in votes were rejected. The appellees contend that they were properly rejected, and the Circuit Court sustained their contention on the basis of its interpretation of the cases of Jackson v. Norris, 173 Md. 579 , 195 A. 576 , and Board of Supervisors of Elections of Baltimore City v. Blunt, 200 Md. 120 , 88 A. 2d 474 , though the Court conceded that the petitioners’ argument based upon an analogy to the case of handover Hills v. Brandt, 199 Md. 105 , 85 A. 2d 449 , was not without force. ⁵⁰ The question in this case is solely one of statutory construction. In Jackson v. Norris, supra, which contains an interesting history of the development of the ballot in this State, it was held that under Sections 1 and 5 of Article I of the Constitution of Maryland (relating to the elective franchise) voting machines for use in elections in Baltimore City had to provide means for a voter to write in the name of a candidate of his choice whose name was not printed on the ballot. In delivering the opinion of the Court, Judge Parke said (at 173 Md. 603 -604, 195 A. 588 ) : “The conclusion of the court that it is the constitutional right of an elector to cast his ballot for whom he pleases, and that it is necessary for him to be given the means and the reasonable opportunity to write or insert in the ballot the names of his choice, is subject to this limitation, that the right is not applicable to primary elections, nor to municipal elections other than those of the City of Baltimore.

This exception must be made, since the provisions of article 1, section 5 of the Constitution have been held to apply solely to the right to vote at federal and state elections, and municipal elections in the City of Baltimore.” The historical review contained in Jackson v. Norris, supra, shows that a provision for write-in votes which had appeared in the first general ballot law (Chapter 538 of the Acts of 1890) merely preserved a pre-existing right and that such a provision continued in the Code until it was eliminated by Chapter 581 of the Acts of 1924. An opinion of the Attorney General rendered in 1926 stated that the purpose of the 1924 Act was to shorten the ballot by eliminating the blank spaces. A second Act was passed in 1931 to eliminate a provision for counting written-in votes, which had apparently been overlooked at the time of the 1924 repeal of the provision authorizing writing in the names of candidates. This bit of history is important for its bearing on the holding in the Blunt Case.

Before turning to that case it may be well to emphasize that the quoted passage from Jackson v. Norris with which ⁵¹ we are concerned in the instant case dealt with the constitutional rights of voters to write in the names of candidates of their choice. In Supervisors v. Blunt, supra, the question was whether or not an opportunity to write in the name of a candidate had to be afforded in a presidential primary election. After quoting with approval the passage from Jackson v. Norris, above quoted, this Court stated that the question was solely one of statutory construction, and held that the write-in privilege did not exist. In reaching this conclusion, the Court rejected the contentions of the appellees which rested largely upon the following statutory provisions, all of which are contained in Article 33 of the Code and which are referred to by their numbers in the 1951 Edition, with their numbers in the 1947 Supplement to the 1939 Edition being given in parentheses: (a) Section 68 (62), under the sub-title “Elections”, — the sentence reading: “Nothing in this Article contained shall prevent any voter from writing on his ballot and marking in the proper place the name of any person other than those already printed for whom he may desire to vote for any office, and such votes shall be counted the same as if the name of such person had been printed upon the ballot and marked by the voter.” (b) Section 212 (205), under the sub-title “Miscellaneous Provisions”, which defines the word “election” as including “elections had within any county or city for the purpose of enabling voters to choose some public officer or officers under the laws of this State or of the United States.” (c) Section 64 (b) (formerly 58 (b)), under the sub-title “Nominations and Primaries” (which under 64 (a) (formerly 58 (a)) applies to “Every candidate for the nomination for a State office, that is to say, an office filled by the vote of all the registered voters of the State”), providing in part that: “* * * said primary election shall be held and ⁵² conducted and determined in the manner and form provided by this Article for general elections and subject to all regulations, requirements and provisions as prescribed by this Article for general elections, in so far as the same is or may be applicable to said primary elections, except as may be herein otherwise provided.” It may be noted in passing that under Section 56 (5) (formerly 50 (5)), ballots for presidential primaries are to be prepared and are to be marked and cast in the same manner as prescribed for gubernatorial primary elections.

Several other provisions of Article 33 were also involved in the Blunt Case. Among them were provisions contained in the “Instructions” to absentee voters in statewide and in Baltimore City municipal elections. Under the statewide election instructions write-in votes were not and are not permitted in primary elections; under the instructions applicable to Baltimore municipal elections they were and are permitted. See Code (1951), Article 33, Sec. 144, par.

(g) of “Instructions” (formerly 136, par. (g)) and Sec. 224 (c) (7) (formerly 217, par. (g)). The opinion of this Court in the Blunt Case, which was written by Judge Henderson, points out that the sentence from Section 68 of Article 33 quoted above had been restored by the Codifier in the 1939 Edition of the Code, despite its deletion by Chapter 581 of the Acts of 1924, in order to conform with the decision in Jackson v. Norris, supra, and that this sentence had been re-enacted without change in a compilation or rearrangement of the election laws, with such amendments as the Legislature thought desirable, by Chapter 934 of the Acts of 1945.

The opinion, after quoting the passage from Jackson v. Norris already set forth herein, states that this sentence from Section 68 (formerly 62) “could not be construed to accomplish a purpose directly opposed to the limitation * * * expressed” in Jackson v. Norris. The mere restoration of this sentence to the laws relating to general elections did not give it an effect contrary to the limitation stated in the opinion which brought about its re ⁵³ instatement. If that had been all that was involved in the case the opinion could have stopped at that point. It did not, however, stop there, but went on to consider the applicability to primary elections of the language of the restored provision itself and whether the incorporation by reference clause of Section 64 (b) was sufficient to adopt the write-in provisions of the general election law as a part of the law relating to primary elections.

Approaching the matter from this point of view, we find that the result of the Blunt Case is due to the language of Section 68 itself indicating its inapplicability to primary elections, to the exceptions in the incorporation by reference clause of Section 64 (b) of Article 33 which are based upon the past or present inapplicability of provisions relating to general elections, and to the expressed view that write-in votes are “inconsistent with the whole theory of primary elections.” In this case we may start with the premise that the reinstatement of the write-in sentence of Section 68 of Article 33 was no more effective to achieve a result opposite to a limitation stated in Jackson v.