Muir v. Beauchamp

Jones J., delivered the opinion of the Court. In this case the appellant and the appellee were, at the election which occurred in the fall of 1899, opposing candidates for the office of County Commissioner of Somerset County. The Board of Supervisors of Election for that county, having canvassed and added up the votes as contained in the statements and returns transmitted to them, in turn transmitted to the Clerk of the Circuit Court of the county a statement, duly attested, from which it appeared that the appellee had received twenty-seven hundred and ten (2,710) votes, and that the appellant had received twenty-seven hundred and forty-three (2,743) votes ; and the appellant was, by the said Board, declared duly elected to the office which is the subject of contest here. Thereupon the appellee began in the Circuit Court for Somerset County a contest for the said office by petition filed in that Court on the 13th of November, 1899.

On the 14th of December, 1899, he filed an amended petition. The subsequent proceedings in the case were had with reference to the allegations contained in this amended petition. These allegations were, in substance, that the statement transmitted and attested, as has been mentioned, by the Board of Canvassers was “ false and erroneous ” in setting forth that the appellant had received a greater number of votes than the petitioner (appellee) and was duly elected County Commissioner, &c.; that on the contrary the appellee had received a larger number of votes than the appellant and was elected to said office and should have been declared elected; that the judges of election for each of the “ election districts and voting precincts ” of the county made mistakes against the appellee in counting the ballots, as related to the office of County Commissioner; that if said mistakes were corrected it would be made to appear that the appellee had received a greater number of votes than the appellant and was duly ⁶⁵² elected ; that in each of the election districts .in the county the judges of election counted for the appellant ballots, marked otherwise than with a cross in the appropriate space on the official ballot after the party emblem or name, and not marked with a cross after the name of the appellant and to the right thereof in the blank space provided therefor ;> that ballots so marked amounted to a large number, more than one hundred, and to more than the majority by which the appellant was returned elected ; that many legal ballots that were cast for the appellee in each of the election districts and voting precincts of the county were not counted for him, but were rejected by the judges of election ; that-ballots so rejected and not counted “ aggregated more than fiftythat in one of the districts of the county “ certain ballots were cast by voters duly registered and entitled to vote in said district supposing said ballots to contain the name .of “ the appellee ” as a candidate for said office of County Commissioner and were marked by said voters in the space opposite “ the party emblem- of the party of which the appellee was the candidate ” with the view of casting-their ballots ” for the appellee as such candidate, “ but that in fact the said ballots contained the name of a-candidate for said office in Talbot County;” that said ballots were plac'ed in the hands of the said voters by the proper election officials, as and for official ballots and were cast by said voters as such ballots with a view to voting for “ the appellee ” and thereby fraud was perpetrated upon said voters and upo'n the appellee ; “ that said ballots were not counted for” the appellee by the judges of election in said district and he was thereby deprived of a number of votes to which he was entitled; that more than one hundred .votes were counted by the judges of eléction for the appellant “which contained no cross-mark anywhere iipon said ballots, and such ballots were counted and included in the certificate of said judges from which the statement of the said Board of Canvassers was made up.” • . . According to the prayer of the petition, the Court passed. ⁶⁵³ .an order directing the appellant to answer the same, and he did so answer, and denied the truth of all the allegations in the petition of the appellee upon which the contention of the appellee was founded.

The answer then averred that the appellant had received at the election in question a much larger and the appellee a much less number of legal votes than had been counted and returned for them respectively; that “in the various districts and precincts of” the county “the judges of election made mistakes in the counting of the ballots cast, to the prejudice” of the appellant by not counting for him ballots that were cast for him for the office of County Commissioner, and by counting for the appellee ballots which were not cast for him (the appellee) for said office ; that “ in the various precincts and districts of” the county ballots were counted for the appellee by the judges of election, “ although from the said ballots it was impossible to determine that the choice of the voters, who cast the said ballots ” for the office in question, was the appellee ; that ballots were counted for the appellee which “ were marked otherwise than with a cross in the appropriate space on the official ballot after the emblem or name ” of the party of which the appellee was the candidate, “ and were not marked by a cross after the name of the appellee and to the right thereof in the blank space provided therefor,’ ’ and that if it was a mistake to count ballots of this description as legal ballots, as charged in the petition of the appellee, then the appellant claimed the benefit of such mistakes of this character as would count in his favor; that legal ballots were cast for the appellant which were not counted for him, " but were wrongfully rejected that in the district of the county in which it was charged in the petition of the appellee that ballots were furnished the voters with the names of candidates for Talbot County upon them there were ballots that ought to have been counted for the appellant, if the ballots in the said district of this description referred to in the petition of the appellee should be counted for the appellee, and the appellant claimed the benefit of such ballots in ⁶⁵⁴ his favor ; that ballots were counted for the appellee “ which contained no cross-marks anywhere upon ” the same, and if such ballots were not legal ballots, as charged in the petition of the appellant, then the appellant claimed the benefit of the error in counting and returning said ballots for the appellee. Then the answer charges that in one of the election districts of the county, which is named, no legal election was held by reason of certain corrupt promises made to the voters therein to induce them to vote for the appellee and the local candidates upon the ticket with him, but as no evidence was offered in support of this allegation it needs no more particular mention. The concluding paragraph of the answer is in the nature of a demurrer to the petition. After the filing of the answer evidence was taken and submitted to the Court by both sides, and the proceedings culminated in the order of the Circuit Court set out in the record, which is as follows : “ The above cause having been submitted to the Court after argument, and it appearing from the pleadings and evidence that at the election held in Somerset County on the 7th day of November, 1899, L. Wes- . ley Beauchamp received 2,631 votes for the office of County .Commissioner of Somerset County, and that Joseph Muir received 2,612 votes for said office, it is thereupon adjudged and declared this 10th day of April, 1900, by the Judges of the Circuit Court for Somerset County, that the said L. Wesley Beauchamp was duly elected to said office of County Commissioner of Somerset County at said election ; and it is further ordered and adjudged that the contestee, Joseph Muir, pay the costs of the contestant. ” In reviewing this action of the Circuit Court and determining its propriety we must ascertain from the record what questions are presented for our consideration.

It appears from a copy of the docket entries therein set out that questions were made upon the pleadings preliminary to the filing of - the answer of the appellant. The proceedings, however, which presented these questions were, as it seems, ⁶⁵⁵ purposely omitted from the record which shows that an order was filed by the counsel for appellant directing what proceedings should be included in the record and that all others should be omitted. As the proceedings in question were not named in this order and are not contained in the record they are not only not before us but it is obvious the questions thereby raised below have been waived as therein presented. The appellant’s answer, however, concludes as follows: That the appellant “says that the petition of the said L. Wesley Beauchamp and each and every reason alleged in said petition why the said L. Wesley Beauchamp should be declared elected is altogether insufficient in law, and the said Joseph Muir (appellant) prays that he may have the benefit of this defense as fully as if the same were set up by demurrer.” It does not appear from the record that this clause of the answer was the subject of a distinct ruling by the Court below and we may well suppose the reason to be that the question which seems to have been intended to be thereby presented had already been ruled upon by the Court in the preliminary proceedings which have been referred to.

Without intending to decide that such a question is properly presented in the answer here,