Murdoch v. Strange

Page, J., delivered the opinion of the Court. ' By the Charter of the City of Annapolis, the Mayor and City Council have power “to provide for the appointment and define the duties” of various officers, including that of Market Master. By Art. 29, sec. 1 of the City Code, it is enacted, that the Market Master shall “be chosen by ballot,” on the second Mondáy of July in each and every year, to serve until the second Monday in April next ensuing, or, “in case of failure on .the part of the corporation then to elect, until another election shall take place thereafter.” On the 20th July, 1903, the Mayor, Counsellor and Alder ¹⁰⁵ men, constituting the City Council, and numbering in all eight members, met, and by resolution, regularly offered and adopted, agreed to proceed at once to elect officers of the city corporation. The appellant and the appellee were thereupon put in nomination for Market Master; and upon a vote by ballot being taken, R. H. Strange received four votes, J. H. Murdoch received three votes, and there was one blank ballot. The Mayor thereupon declared there was no election.

On July 23rd, 1903, and again on 30th July, the same persons were balloted for, with like results; that is, at each of the ballotings, Murdoch received three votes, Strange four, and there was one blank ballot, and on each occasion the Mayor declared there had been no election. The main question raised by these proceedings is presented by the contention of the appellant that by the proof taken and set forth in the record, there exists a usage and practice of the Corporation of Annapolis whereby a blank ballot shall not be counted for any of the persons voted for in the appointment of the city officials by the corporate electors; but shall be counted as a ballot in estimating the total number of votes cast and in determining whether any person voted for has received a majority. If it be admitted, for the sake of the argument, that a rule or by-law of a corporation may be established by proof of custom long maintained and acquiesced in by its members, yet it is clear, (Miller v. Eschbach, 43 Md. 6 ), that inasmuch as the M. & C. C. of Annapolis are a municipal corporation established for political purposes and possessing no powers except sugh as have been expressly, or by necessary implication, given by the law creating it, no by-law or rule can be established by custom, which is beyond its authority to adopt by resolution or ordinance. Admitting, therefore, further, for the sake of the argument, that the custom contended for by the appellant has been fully established (which however we do not decide), there arises the pertinent inquiry, how far the corporate authorities of the city of Annapolis have power to adopt as a rule of procedure, in the election of its officers, a rule whereby a blank ballot is to “be ¹⁰⁶ counted as a ballot in estimating the total number of votes cast;” or in other words, may it under its conceded power of establishing a rule of procedure, declare by resolution, or in any other manner, not only that a blank ballot, shall be counted, but also that it shall be counted as a vote of dissent.

We are not inquiring, just now, whether such a rule would be reasonable; but whether it is in conformity to the proper exercise of the power granted by the charter. By the 17th section of that instrument, the power to the Council is, “to provide for the appointment” of Market Master and certain other officers. It may be clear, that the particular method of the appointment is left to the judgment and discretion of the corporation; that is, whether the method of appointment should be by resolution of the Council, or by a a viva voce vote, or by ballot. However the Council may decide, in this respect, the method itself and the several steps by which the final choice is to be determined, must be in harmony with the fundamental principles, recognized and understood by the common law to be applicable.

For instance, if the Council provided by its ordinance, as it has done here, that the appointment shall be by ballot, the Council could not establish a rule, by custom or otherwise, whereby a minority of the votes cast would be effective to elect, or whereby a number less than a quorum could transact the business. It seems to be clear, as was said in Trowbridge v. Newark, 46 N. J. L. 144, that a power to provide for the appointment, granted to a municipal corporation, merely authorizes the “Common Council to pass ordinances prescribing a mode and manner of manifesting their will, whether to do so, by ballot or resolution or ordinance, or by mere motion adopted viva voce.” The municipal body may make such rules, as conform to or are not in conflict zvith the essentials of law making; but such rules must not be in derogation of the law of the land, whether common law or statutory. Cooley Const. Lim.

(6 ed.), 187; Heiskell v. Mayor, &c., 65 Md. 149 ; 1 Dillon on Munci. Corp., sec. 319 (4 ed). Or to state the proposition with reference to the particular facts of this case, if the method ¹⁰⁷ of appointing the Market Master be fixed by the ordinance of the Council to be by ballot, then all the common law rules that apply to that method of acting must be observed; and no rule can be established by custom or otherwise, that will substantially affect the determination of the majority, otherwise than according to the principles of the common law. The power conferred upon the City Council by sec. 17 of the Charter, was therefore completely exercised by the passage of sec. 1 of Art. 29 of City Code, in respect to the method of the selection of Market Master, whereby it was provided that he should be chosen by ballot.

How the ballots shall be counted’, and the majorities determined, where matters fixed by the principles of the common law. In Heiskell v. Mayor (supra), it was stated in substance, that where the Charter is silent, the common law fixes the majority as the legal body, and for the Municipal Council to undertake to make a greater number, is to attempt to change the common law; and by a parity of reasoning, it would seem to be equally clear, that when a municipal body without special authority from the Charter or from some legislative enactment, under the pretence of making a rule of procedure, undertakes to affix to the ballots cast, or to any one of them, or to a blank ballot, a significance, other than that given or allowed by the principles of the common law, whereby the final result of the balloting is or may be entirely changed, it is in fact neither more nor less, than an attempt to change the common law; and such an undertaking would be illegal and void. The matter then amounts to this, is it in accordance with the principles of the common law, that the blank ballot in a case like this, should be counted in estimating the total number of votes cast, and therefrom determining, whether any person voted for has received a majority. The “blank ballot,” referred to in these proceedings, was a blank piece of paper, having on it no words or marks of any kind whereby the meaning and intent of the person who deposited it, may be ascertained.

To denominate such a paper a ballot, would seem to miscall it. It is in fact nothing; it can ¹⁰⁸ not be expressive of any intention; no rule or method of interpretation can relieve it of its dumbness. It no more indicates a preference for one of the candidates, than for another. If there is but one candidate, there is nothing to indicate assent to the one; nor where there are two or more candidates, as a vote of assent or dissent, as to either candidate.

In the case of Yulee v. Mallory, 1 Bart. Election cases, 608, the report of the committee referred to the “blank ballots as beyond doubt nullities,” and in Stockton's case, they were regarded only because of a rule of the .State Legislatures that cognizance should be taken of such ballots. It is true, that in some jurisdictions, it has been held, that “a blank vote cannot be in a technical sense a ballot, but is nevertheless an act of negation — affirmative in showing that another voter acted, and negative in determining the majority,” Lawrence v. Ingersoll, 88 Tenn. 88 . In this case C. J. Turney dissented; holding that “a blank vote was only an expression of indifference; ” and in this opinion he is supported by much authority, and it seems to us by principle.

A ballot is a form of expression for a candidate to be voted for. If the paper falls short of expressing such a wish, it is defective; certainly, if it expresses nothing, it lacks all of the essential elements of a ballot. If it contains the name of a man, who is known to the voter to be ineligible the ballot cannot be counted, because the object of ballot then would be not to elect, but to prevent an election. People v. Clute, 50 N. Y. 463 ; Reg. v. Coaks, 3 Ellis & Blackburn, 249.

It is not easy to perceive how a blank ballot can be given any significance. If it expresses nothing and therefore cannot be counted for or against either of the candidates voted for, how can it serve to indicate assent to the person receiving a plurality of the other votes cast, or of dissent ? How can a blank piece of paper, be construed to express an intent of any kind ? If it be regarded as an expression of dissent, it may be asked to what does he dissent ?

Is it to the holding of the election ? And if this may be so, how can the person who deposits it, by a mere arbitrary interpretation of the ¹⁰⁹ act of placing a blank piece of paper in a ballot-box, be permitted to defeat the votes of electors, who are endeavoring to perform an important public duty. “As all electors have the same right, it follows, that each of them is bound to exercise his particular right, in such manner, as to allow to every other elector, the free and full exercise of the same right on his part; which would not be the case if one elector had the power by means of a blank, to defeat the vote of another for a particular candidate, without himself voting for anybody.” Cushing's Law of Legislative Assemblies, (1874), sec. 114. There are some cases when an effective action of the legislative body requires a majority of all the members, or of all the members present. In such a condition of legal requirement, the question of the significance of a blank ballot cannot arise; for there must always be at least the concurrence, of a fixed number of votes.

In Yulee v. Mallory, it required a majority of all the members to elect. In People v. Conklin, 7 Hun. 188 , the statute rendered indispensable a majority of the trustees present. The Court said in that case referring to the blank ballot “if a presumption is to be entertained on the subject it is just as reasonable that it should be indulged in the defendant’s as in the relator’s favor.” In Swartz v. Wickersham, 66 Pa. St. 134, a majority of the whole number of directors present must concur.

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