Hummelshime v. Hirsch

Thomas, J., delivered the opinion of the Court. By the Act of 1910, Chapter 306, a new Charter was enacted for the City of Cumberland. Section 97 of this Charter provides that candidates- for Mayor and City Council shall -be nominated at a primary election “to be held on the second Tuesday preceding the general municipal election,” and that “any person desiring to become a candidate for Mayor or City Council shall, at least ten days prior to said primary election, file, or there shall be filed for him, a statement of such candidacy” under oath, giving his place of residence in said city, stating that he is a qualified voter therein, that he is qualified, to hold and is a candidate for a nomination for the office, and that he requests his name to be printed upon the primary ballot, “and shall at the same time file therewith the petition of at least one hundred qualified voters, requesting such candidacy,” and stating that they know the candidate to be a man of good moral character and'qualified, in their judgment, for the duties of such office. This section further provides that “the two candidates receiving the highest number of votes for Mayor shall be the candidates, and the only candidates, whose names shall be placed upon the ballot for Mayor at the following general municipal election, eight candidates receiving the highest number of votes, or ⁴² all such candidates, if less than eight, shall be the candidates, and the only candidates, whose names shall be placed upon the ballot for councilmen at such municipal election.” By section 98 the Board of Election Supervisors of Allegany County are required to order an election to be held on the sixteenth day of May, 1910, and it provides that the manner of holding such election shall be governed by the laws of the State of Maryland regulating general elections, and that the Mayor and Councilmen elected at said election “shall hold office from the first Monday in June, 1910, until the first Monday in April, 1912, and until their successors shall have been duly elected and qualified.” On the 7th of June, 1910, the appellee, Joseph Hirsch, filed in the Circuit Court for Allegany County a petition for a mandamus against the appellant, in which he alleged that he was, and had been for many years, a citizen of and a voter and tax payer in the City of Cumberland, and as such was interested in having the affairs of said city “managed In an orderly and lawful manner, and by officers duly qualified to manage the same;” that by the terms of the Charter of Cumberland “Each Councilmen of said city must be the bona fide owner of property to the value of $500.00, and be assessed for the same on the tax books of said city at the time of his election, and for two years next prior thereto, the taxes on which shall not be in arrears;” that at the election held on May 16th, 1910, the appellant, Theodore A. K. Hummelshime, “was returned as having been elected a member of said Mayor and City Council, to wit, as a Councilman, and is now assuming to act and is acting as such Councilman;” that at the time of said election the appellant was assessed on the tax books of the city with property of the value of $500.00, but “that at the time of said election the taxes so assessed against” the appellant'“were in arrears and unpaid, and remained so in arrears and unpaid for some days thereafter, and that by reason thereof said Hummelshime was not qualified at the time of his election, and is nor now qualified ⁴³ to act as Councilman, of the City of Cumberland.” The petition further alleges “that the newly elected body of Mayor and City Council convened for organization on the morning of June 6th, 1910,” and that the petitioner, by his counsel, on that day “appeared before said body and the said Theodore K. Hummelshime—and stated that he wished to protest against said Hummelshime’s acting as Councilman, for the reason that he was disqualified at the time of his election;” that said body as a whole declined to hear any statement in reference to the matter “at that time and place, and said Hummelshime then and there stated that he had been duly elected and that he intended to and would act as Councilman.” The petition then charges that by reason of the fact that the appellant was disqualified at the time of his election, the election of the appellant was void, and that it was his “duty to refrain from entering upon the discharge of the powers, privileges and functions of said office,” and that it is now his duty to vacate said office, but that the appellant, wholly disregarding his duty in the premises, refuses to vacate said office, and continues to exercise the functions thereof, and the petitioner prays that a writ of mandamus may issue commanding the appellant to vacate the office of Councilman and to cease from, exercising the functions thereof.

On the 11th of June, 1910, the appellee, J. Semmes Devecmon, was made a party plaintiff in the case, and on the same day the Court passed an order requiring the appellant to show cause why the writ should not issue. The appellant demurred to the petition, and the demurrer having been overruled, he filed his answer, in which he admits the facts alleged in the petition but denies that he was disqualified at the time of the election, and says that at the time of the election he was a bona fide owner of property to the value of $500.00, and was assessed for the same on the tax books of the city at the time of his election and for two years prior thereto; “that, on the said sixteenth day of May before the hour of three o’clock in the afternoon, he, the ⁴⁴ said Hummelshime, went to the office of Anthony Minke,,the tax collector for said city; to pay any and all taxes which he at that time owed to the .City of Cumberland for the fiscal year 1909-1010; that it was the custom and the duty of the said Minke to be at his office, which was then and is provided for him at the Water Works Building, on Green street, in the said city, from about the hour of nine o’clock in the morning until five in the afternoon, except for about an hour from twelve o’clock on, to receive the taxes from the taxpayers of the City of Cumberland and to give receipts therefor, which duty'and custom was well known to this respondent at that time and for a long period of time prior thereto; that the said Minke was not at his office of tax collector, as aforesaid, nor at the Water Works of the City of Cumberland, which is near thereto, and the said Hummelshime'could not find him and did not know where he was, though the said 'Hummelshime inquired of city employees' near said office who informed him that they did not know where the said Minke was and that, from their knowledge, he had not been around his office during that day, except once very early in the morning, but they believed he could be. found somewhere on the streets in the business portion of the town, and there was no one at said office to receive said taxes which your respondent was ready and anxious to'pay and to give him a receipt for the same, and your respondent did not know and could not find out where the said Minke was, so that said taxes could be paid, although he diligently endeavored to find said Minke for the prirpose aforesaid; * * that he, the said Hummelshime, owed the City of Cumberland no taxes other than those for the year 1909-1910 on the said sixteenth day of May, 1910 ; * * * that on the 23rd day of May, 1910, he paid to'the tax collector of the City of Cumberland all taxes which had been ■ assessed against him on the books of said city; that, on the second day of June, 1910, he qualified and took his oath of office before the Clerk of the Circuit Court for Allegany County, at which time he was the ⁴⁵ bona fide owner of property to the value of five hundred dollars and had been assessed for the same on the tax books of the said city at the time of his election and for two years next prior thereto, the taxes on which were not in arrears; that, on the sixth day of June he entered into his office of Councilman, at which time he was the bona fide owner of property to the value of five hundred dollars and was assessed for the same on the tax books of the City of Cumberland at the time of his election and for two years next prior thereto, the taxes on which were not in arrears, and that, by feason of his said election and having the qualifications of Councilman and having taken his oath of office at the time aforesaid, and having entered into his duties, as aforesaid, and still retaining all the qualifications necessary for him to have, and acting as City Councilman of Cumberland, which he now is, he is legally acting as such City Councilman and performing the duties thereof.” By the fifth paragraph of his answer the appellant alleges that the appellee, Joseph Hirsch, “has filed In the Circuit Court for Allegany County a petition for a recount of the ballots cast at the election held on May 16, in the City of Cumberland, as aforesaid, in which petition for recount the said Joseph Hirsch did allege that he, and not the said Hummelshime, was elected as a member of said Council, and that the said Hirsch had received a greater number of votes for said office than the said Ilummelshime, which said petition for said recount of the ballots is now on file with the Clerk of the Circuit Court for Allegany County, and said case arising from said petition is'now pending in this Court, and that the petition for this mandamus does not lie for the reason that the issuing of the same would cause great confusion in the management of the government of the City of Cumberland.” The answer further charges as a reason why the writ should not issue, that the petition “was filed by the said Joseph Hirsch from reasons of spite, hatred, malice and ill will on his part,” and that the appellee, Devecmon, joined ⁴⁶ in the petition at the request of said Hirsch; that the petition was 'filed for the purpose of embarrassing the appellant in the conduct of his office, and not from any “motive of public spirit or of doing a good and proper action in the interest of the voters and taxpayers of the City of Cumberland.” The petitioners demurred to the answer, and this appeal is from the orders of the Court below overruling the demurrer to the petition, sustaining the demurrer to the answer and directing the writ to issue. The several questions presented by these demurrers are: 1. Is mandamus the proper remedy to oust a municipal officer from an office to which he was not legally elected ? 2.

Does it lie at the suit of a citizen and taxpayer who makes no claim to the office ? 3. Does the provision of section 100 of the Charter, to wit, “the taxes on which shall not be in arrears,” relate to the time of the election of a city councilman or to the time of his qualifying? 4. If the provision of section 100 refers to the time of his election, does an effort on the part of a candidate to pay his taxes at three o’clock on election day, and payment of the same several days after the election, relieve him of the disqualification ? 5. Is it a sufficient answer to the petition of citizens and taxpayers for a mandamus to oust a municipal officer from an office to which he was not legally elected, to say that there is pending in Court an election contest between him and one of the petitioners, or that one of the petitioners was moved to file the petition by malice and ill-will, and that the petition was filed for the purpose of embarrassing the respondent in the conduct of his office ? 1.

The writ of mandamus is an extraordinary remedy, and is never to be resorted to except where the petitioner or relator has a clear legal light to the performance of a particular act or duty by the respondent, and where the law affords no other adequate remedy. In High on Extraordinary ⁴⁷ Legal Rem., section 10 (2nd ed.), it is said: “The test to be applied, therefore, in determining upon the right to relief by mandamusis to inquire whether the party aggrieved has a clean legal right, and whether he has any other adequate remedy, since the writ only belongs to those who have legal rights to enforce, and who find themselves without any appropriate legal remedy.” Or as stated by Mr. Poe: “In order to justify the intervention of the Court and the issuing of this writ, there must be a specific legal right, as well as the want of a specific and adequate legal remedy, and it must be necessary for the purpose of compelling the performance of an act which has either been refused or where circumstances sufficiently indicate an intention to refuse it. It is, accordingly, a proceeding at law, where the purpose of the applicant is not to recover damages for a wrong done, nor to enjoin a party from committing a threatened wrong, but to compel the performance of a positive act, in cases where such remedy is alone adequate to meet the justice of the particular case.” 2 Poe’s P. & P., sec. 709 (3rd ed.); see also Brown v. Bragunier, 79 Md. 234 . The distinction between a writ of mandamus and a writ of injunction is that the office of the former is to compel the performance of an act, while the latter is a restraining or preventive remedy.

This distinction is clearly illustrated and defined in the case of Legg v. Annapolis, 42 Md. 203 . In that case the Mayor, Counsellor ‘ and Aldermen of the City of Annapolis filed a petition against James Legg and others, alleging that in the exereise of the powers conferred upon them they had appointed a police foree which was then in the dischax’ge of its duties; that the Governor had appointed the appellants “under the title of The Board of Police Oommissionex’s of Aixnapolis City,” claiming the idght to do so under a law which had never been passed or approved as required by the Constitution, and praying for a writ.of mandamus commanding the appellants “to surcease and desist from exercising, or assuming to exercise, in any manner, any power or authority or ⁴⁸ jurisdiction under said' pretended Act” and further commanding them to abstain from interfering, etc., with the police department established by the petitioners. Judge Aevey,-in discussing the question whether mandamus was the proper remedy, said: “This is the usual prayer for an injunction, in a bill in equity, to restrain an unlawful interference with rights; but we are not aware of any precedent for the use of the writ of mandamus to accomplish such ■ a purpose. Mandamus is a writ commanding the performance of some act or duty, therein specified, in the performance of which the applicant for the writ is interested, or by the nonperformance of which he is aggrieved or injured.

Reg. v. Bishop of Chichester, 2 El. & El. 209. But as simply a preventive remedy it has never been used, so far as we have been able to discover. The nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced to quevent disorder from a failure of justice, and defect of police.

Its use is therefore confined to those occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.” _ In the case at bar the prayer of the petitioner is for a writ commanding the appellant to vacate the office of city councilman, etc., and is like the prayer in Triesler v. Wilson, 89 Md. 116 . So far, then, as the nature of the relief sought is concerned, requiring, as it does, the performance of an act, the writ of mandamus is clearly the appropriate remedy, and, in considering the first question presented by the record, it only remains to be determined whether there is another adequate remedy. It is said in 23 Am. & Eng. Ency. of Law, 630 (2nd ed.), upon authority of the long list of English and American cases cited in the note, that “At common law, and the absence of statutes changing the rule and providing other remedies, quo warranto, or the statutory substitute therefor, is the appropriate and exclusive remedy to try the title to a public officej and to oust a usurper.” In such cases, except where ⁴⁹ otherwise provided by statute, the sole issue tried, is the respondent^ title to the office, and the relator's or petitioner's title is not involved, further than is necessary to show a sufficient interest to maintain the proceedings, and cannot be determined.

If the proceedings are instituted by one claiming the office, the only result accomplished is the ouster of the respondent, and the petitioner must then resort to a mandamus to effectively establish his right to the office.” 23 Am. & Eng. Ency. of Law, 336 (2nd ed.). That such is the office and scope of quo warranto proceedings was distinctly recognized in Harwood v. Marshall, 9 Md. 83 . In this State, however, the rule is that the title of the respondent to an office may be tried in a mandamus proceeding where the petitioner claims title to the office, and is seeking not only to oust the respondent but to obain possession of the office.

Harwood v. Marshall, supra; Triesler v. Wilson, supra. In the latter case Judge Pearce said: “The petitioners here seek not only the removal of the respondents, but the possession of their offices; and since the decision in Harwood v. Marshall, 9 Md. 99 , it is settled that mandamus is the only proceeding in which the judgment could remove the occupant and install the petitioners.” See also 19 Am. & Eng. Ency. of Law (2nd ed.), pages 767-769. In a note to. 9 Ann. Ch. 20 Alex.

Brit. St., in force in Maryland, 695, Mr. Alexander says that it is the settled municipal law in England, “that if a man is bona fide in office, his title is not to be tried by mandamus, but by quo waircmto. Quo warranto, therefore, in that country, is the proper proceeding to test the title of a party who has been elected, while mandamus is the proper remedy to enforce an election or admis.sion into a