Moore v. Bay

Parke, J., delivered the opinion of the Court. On May 4th, 1925, a municipal election was held in Havre de Grace for the selection of its mayor and three members of the city council. There was. a contest, and nine hundred and eighteen votes were cast. The canvass and report of the municipal supervisors of election certified that George T. Pennington had been elected mayor, and Harry Lawder, Jr., Jacob Davis, and Harry Atkinson had been elected councilmen; anl these successful candidates accordingly qualified and assumed the discharge of their official duties on May 18th.

The majorities of those elected ranged from fifty-seven to ninety-five votes. Two of the defeated candidates for the city council, James H. Bay and Edgar M. Geathers, who possessed all the qualifications of voters and of nominees for the city council, determined to contest the election of the mayor and three councilmen, and for that purpose filed on May 25th with Joseph IT. Moore, Robert Seneca and Frank Poughkeepsie, constituting the board of supervisors of election of the Mayor and City Council of Havre de Grace, a petition, which assailed the municipal election as void and of no effect, and prayed that the board hear and determine the grounds of this attack. ²⁸⁸ The first reason -assigned was the general one that “about one hundred and seventy persons voted” who were not legally qualified to Vote because they did not have “all of the five-qualifications required by and provided in the charter,” which were an age of more than twenty-one years; a residence in Havre de Grace of not less than one year next preceding- a municipal election; an assessment on the tax boohs of the-city, on the first day of January next preceding the election,, of at least two hundred dollars worth of real or personal property; the payment one month before the day of the-election of the municipal taxes levied for the preceding year on not less than this amount, and a registration among the registered voters of the city. The other and particular reasons specified were that “about one hundred and seventy persons voted,” who had not paid, at least thirty days before the day of the election, the city taxes on their property assessed to them; or who did not own, .and every one of' whom was not assessed on or before January 1st, 1925, on. the municipal books with real and personal property in the minimum amount of two hundred dollars; or whose names were fraudulently and deceitfully entered on the tax levy book of the city as having seasonably paid the current taxes to the treasurer of the cjity, through which fraud and deceit the mayor and city council failed to strike their names off of the list of qualified registered voters, and the said “about one hundred and seventy persons” were thereby enabled unlawfully to vote at the election.

Ho intimation is given who made these entries or who was responsible for them. On the day' of the receipt of this petition the board of supervisors of election notified the protestants that the hearing in a municipal election contest must be conducted in. accordance with the rules and regulations prescribed by ordinance of the mayor and, city council and that, inasmuch as no ordinance of the kind had been passed, -the board would, request the city council to pass the ordinance, and when it was passed, the board -Vould arrange for a hearing. This reply was not satisfactory and, on June 5th, the ²⁸⁹ appellees, James H. Bay and Edgar M. Geathers, filed a petition against the appellant, the board of supervisors of election of the Mayor and City Council of Havre de Grace, for the issuance of a writ of mandamus forthwith to compel a hearing and determination of the questions presented by the petition, which attacked the election as a nullity upon the grounds above stated. This petition was answered, and the answer was demurred to, and the demurrer was overruled.

In its order directing the writ to issue, the court specified the notice to be given to the successful candidates and the contestants, fixed the day, time and place of the hearing, and limited the period within which the contest should be conducted, both in the event of an appeal, and of no appeal, from its order. Ho testimony was taken. The answer of the respondents did not deny the averments of fact in the petition. The uncontroverted allegations of the petition and the facts set forth in the answer present a question of law, which will determine the propriety of the issuance of the writ of mandamus in this case.

Price v. Ashburn, 122 Md. 520 ; Good v. Commissioners, 137 Md. 198 ; Hooper v. Farnen, 85 Md. 587 . The material facts have been set forth, and on these facts a reversal is sought on the main grounds (a) that the board could not hear and determine the proposed contest because the statute conferred “juridiction to hear and determine, under such rules and regulations as the mayor and city council may by ordinance prescribe, all contested city elections,” and no such ordinance had ever been passed, although the provision originated in the Acts of 1902, chapter 127; (b) that the petition did not present an election contest within the meaning of the charter; (c) that the qualifications of the voters on the registration list were solely for the city clerk as the officer of registration and for the mayor and city councilmen as a board of revision and review, with a right of appeal therefrom to the Circuit Court for Harford County; ²⁹⁰ and, finally, (d) that, if the board of election supervisors did have jurisdiction of the matter set forth in the petition, the court’s order for the mandamus was defective because it sought not only to compel a hearing and determination of the contest, but also to control the discretion of the board in the method of the exercise of the power. It is our conclusion that the effect to be given the registration list will control the decision in this case, and we shall, therefore, proceed to consider the provisions of the municipal charter bearing on that question. In pursuance of the statutory requirement the supervisors of election furnished the city clerk with registration books, which it is the duty of, the clerk to protect and keep safe.

A municipal election is held biennially on the first Monday of May. On the second Monday and Tuesday in April of the year in which the municipal election is held the city clerk sits at the council chambers between the hours of nine o’clock a. m., and seven o’clock, p. m., for the purpose of registering the legally qualified voters of the city. It is the function of the clerk to enter in alphabetical order upon the registry book the name of every person appearing before him at the times specified and requesting to be registered, provided that, in his capacity as register, the clerk shall be first satisfied by the applicant’s oath, or otherwise, that he is a male citizen of the United States above the age of twenty-one years who has resided in the' City of Havre de G-race not less than one year preceding a municipal election, who was on the first day of January next preceding the election assessed on the tax books of the city with at least two hundred dollars worth of real or personal property, and who has paid the tax; levied for the preceding year on not 'less than the aforesaid amount one month before the day of election, but if the applicant is an active member of the local fire department, he is exempt from taxation to the extent of one thousand dollars, yet is not thereby deprived of the- franchise to vote in city elections, if he has all the ²⁹¹ other requirements of a qualified voter. Acts of 1920, ch. 634, pp. 1229, 1230.

The clerk is given the power to administer1 the oath; and, if convinced of the eligibility of the applicant, by the proof, must enroll his name upon the registry. But his action is not final, because after the registration is closed the mayor and city council sit on the following Monday as a revisory board, whose duty it is to strike from the registration book or lists the names of all persons who are dead, or who have removed from the city, or who are not assessed with sufficient real or personal property, or who have not paid the tax levied for the preceding year on not less than the requisite amount within one month before the election, or who are otherwise disqualified as voters. Within one week after this sitting as a revisory board, the mayor and city council publish by handbills to be set up at the city hall, and in at least two other public places in the city, a list of namesi that have been stricken from, and that have been added to, the registration books. If any person should feel himself aggrieved by the action of the clerk in registering, or refusing to register, the name of any person, or by the action of the Mayor and Oity Council in striking out, or refusing to strike out, the name of any person, a hearing is granted before the city council, which is given power to determine the matter, subject to an appeal to the Circuit Court for Harford County.

In addition to these safeguards, the law compels the clerk to give public notice of the time and place of the sitting for the registration of voters, and of the time and place of the sitting of the city council for the review of the registration lists, for at least two weeks prior to the earlier sitting, by handbills and by advertisement inserted in two newspapers, if so many be published in Havre de Grace. The statute constitutes the clerk the custodian of the registry books, which must be kept in a safe provided by the municipality, and compels him to furnish to any person, who applies, an accurate copy of the list of registered voters at the price of one ²⁹² cent for every, one of the names. The clerk and his deputy, acting as officers' of registration, are made subject, except as by the law otherwise provided, to all the penalties which are denounced against officers of registration under the general election laws of Maryland. The voters, who so remain on the registration books on the day of the election, and those only, constitute the “qualified voters of said city,, and as such shall be entitled to vote” at any next ensuing election, because the statute explicitly provides that only those are qualified voters “whose names shall appear upon the list of registered voters of said city” in the manner here set forth.

And the method provided for the determination of those who are embraced within the class of qualified voters at any election is the delivery by the clerk to the judges of election of the registration books when necessary for use in an election. Acts of 1916, chapter 680, secs. 279, 287, 288, 289. By an amendment in 1924, the General Assembly enacted that “the Mayor and 'City Council shall provide for an entire new registration in the year 1926 and every seven years thereafter, but no entire new registration shall be made by the Mayor and City Council or the clerk thereto in the year 1924, or at any other time than as herein expressly set forth.” Acts of 1924, ch. 78, sec. 288, p. 159. This is a legislative recognition