Pope v. Whitridge

Worthington, J., delivered the opinion of the Court. The litigation in this case grew out of a contest over the selection of directors to manage the affairs of the Maryland Society for the Prevention of Cruelty to Animals of Baltimore City, a body corporate. The election for this purpose was held in pursuance of the Act of 1908, Chapter 77, at the headquarters of the society, 612 H. Calvert street, in Baltimore City, on Eriday, April 10th, 1908, at 3 o’clock in the afternoon, and it was to review the proceedings at this election and to have the Court determine, which candidates received a majority of the legal ⁴⁷² votes then and there tendered to'the judges of election that this action was instituted. By the provisions of the above-mentioned Act of Assembly twelve directors 'were to be elected at this election, four to serve for one year, four for two years, and four for three years, and thereafter four directors were to be elected in every year to serve for three years.

This Act was approved March 10th, 1908. Some weeks prior to its passage — that is to say, on February 13th, 1908— an election had been held by the society, and although the original charter of the society provided for a board of but five directors, twelve directors were chosen at that time to serve for the term of one, year. Two tickets were in the field to be voted for at that election, one known as the .“Shearer ticket” and the other as the “Whitridge ticket.” The contest resulted in the election of the candidates on the so-called “Whitridge ticket.” . ... On February 22nd, 1908, a bill was introduced in the Legislature, then in session, by the freinds of the newly elected directors, according to the provisions of which the society was thereafter to be managed by a board of twelve directors, and the term of four of the twelve already elected for .one year was extended to the annual meeting of the society to be held in January, 1910, and the term of four oth-’ ers to the annual meeting to be held in 1911, and thereafter four were to be elected annually to serve for three years.

The friends. of the opposing, or Shearer, faction,- having learned of the introduction of this bill in the Legislature, were able to so amend its provisions as to require instead of extending the term of some of the, directors already elected, a special election for twelve directors to be held on April 10th, 1908, .and as amended the bill passed and became the Act of 1908, Chapter 77, above mentioned. When it became known that a special election was to be held the contest between the opposing factions was renewed. It appéars that about 327 ballots were cast or tendered at this election, of which number 151 straight ballots were cast for the Whitridge candi ⁴⁷³ dates and 131 for the Shearer candidates, with four more ballots cast for a majority of the Shearer candidates, but containing also the names of one or more candidates on the Whitridge ticket. The result therefore was, as to a maJ. jority of the candidates, 151 for the Whitridge ticket and 135 for the Shearer ticket, with some 39 or 40 rejected or disputed ballots, not counted for either side.

On April 25th, 1908, the petition in this case was filed in the Court of Common Pleas of Baltimore City by certain adherents of the Shearer ticket against the appellees, candidates on the Whitridge ticket, and the corporation itself, alleging that the election “took place during great and continued confusion, contention and clamor, and in a densely crowded room at the headquarters of the society, on Horth Calvert street, in Baltimore City;” that the defendants took “unconscionable advantage of their absolute and exclusive control of the books of the society,” and called out the names of persons who were not ■ members of the society whose' proxies were wrongfully and illegally received and counted for the defendants, while the ballots and proxies of many qualified members, which were duly tendered to the judges of election, in favor of the candidates on the Shearer ticket, were unlawfully rejected and not counted 'for that ticket, and in fact that the candidates on the “Shearer ticket” were duly elected directors of said society on said 10th day of April, 1908'; and praying that a mandamus might issue ordering the admission, induction and installation of such directors so elected into office, etc. • On May 13th, 1908, a motion by the defendants to dismiss the plaintiffs’ petition was filed, and on May 19th, 1908, a demurrer to the petition was filed. Subsequently the motion to dismiss was withdrawn, and while the demurrer does not appear to have been directly passed upon by the lower Court, it must be' deemed to have been overruled, as the case proceeded to trial on its merits. On May 23rd, 1908, the answer of the defendants was filed, protesting that the Court had no jurisdiction to try the ⁴⁷⁴ case, denying all the material allegations of the petition, and averring in conclusion that the Court could not lawfully go behind the return and question and annul .the action of the judges of election. A replication was duly filed and the case proceeded to trial before the learned Judge of the lower Court without the aid of a jury.

The trial lasted for several weeks and a great mass of testimony was taken; the record consisting of nearly 600 printed pages and containing forty-one bills of exceptions, fifteen prayers, a motion to exclude the testimony, four special exceptions, and a separate opinion by the learned Judge who sat in the case below. As the result of the trial fourteen ballots which had originally been counted for the Whitridge ticket, were rejected by the Court, and one ballot rejected by the Judges of election was counted for that ticket, thus making the net result as to a majority of the Whitridge candidates 138 votes. The trial Court also rejected six ballots that had been counted for the Shearer ticket by the judges of election, • but allowed that ticket seven votes that had been so rejected; thus making the total vote 136 as to a majority of the Shearer candidates. Thereupon the. lower Court passed the following order: “Ordered this 27th day of October, 1908, that the petition for mandamus in the above entitled cause be and the same is hereby dismissed with costs,” Erom this final order the petitioners have appealed.

Although this appeal is brought here by the petitioners, we shall not confine ourselves to an examination of the exceptions reserved by them alone. Indeed formal bills of exception are not necessary in a mandamus proceeding where the case is tried before the Court without the intervention of a jury. In such a case, the question is not merely whether the rulings to which exceptions have-been formally taken are right or wrong, but whether from the whole record the final order of the lower- Court should be sustained or not.' ⁴⁷⁵ As was said by tbis Court in tbe case of Manger v. Board of Examiners, 90 Md. 659 : “It is the final order granting or refusing a mandamus which an appeal to tbis Court assails, when tbe case bas been tried by tbe Judge alone.” While mandamus is a legal remedy, yet it has become more and more nearly assimilated to a proceeding in equity (Hooper v. Creager, 83 Md. 502 ), and especially is this true where the cause is tried before the Court without the intervention of a jury. We shall therefore consider as well as rulings of tbe Court in favor of tbe appellants, as those against them, wherever such rulings are plainly brought to our attention for review, for while no formal bills of exception are required in such a case as tbis, yet it- is necessary that there be either written objections filed, or proper notations made in tbe record, clearly indicating tbe rulings excepted to on both sides, and tbe ground of such exception, so that -such rulings may be distinctly presented to this Court for its consideration.

Benson v. Atwood, 13 Md. 20 . With these observations upon tbe practice in such cases, we will proceed to consider tbis case upon tbe whole record and to review all tbe rulings of tbe lower Court, so far as fairly presented to us for our consideration. We shall not attempt, however, to discuss separately all tbe different rulings of tbe lower Court, but shall endeavor to declare as briefly - as possible what we regard as tbe rules of law applicable to the several points or questions involved, and then, applying these rules to tbe facts as presented by tbe record, ascertain tbe result. ■ 1. We think tbe lower Court was right in ruling that new members elected after February 13th, and before March 7th, 1908, who paid their dues between March 7th, and April 10th, were entitled to vote.

There is some ambiguity in tbe-language of tbe Act in regard to tbe time limit for tbe payment of tbe dues of such members, but after tbe most careful consideration that we have ⁴⁷⁶ been able to give tbe matter, we are of the opinion that the learned Judge in the Court below construed the law aright. 2. • It follows as of course- that members of the society who were such before February 13th, 1908, and who had not resigned, and whose dues for 1907 or 1908, w^re paid prior' to the • beginning of the special election held on April 10th, 1908,- were entitled to vote at said election-. 3. We think that under the provisions of this Act of 1908, Chapter 77, regulating the special election, members contri? buting annually less than five dollars: were entitled to vote at said election-. • ’The by-laws contain the word “active”--before the word “members” in prescribing who shall be entitled to vote, and only members paying annually -five dollars or more, were considered active members, but the word “active” is omitted from the statute 'although the bill as originally introduced eontainéd that adjective. - - It is clear therefore that the adjective-was purposely stricken out of the bill, upon amendment, and the effect was to permit members who ordinarily- were not considered derive members, to vote at- the special election,' provided for in this act. ■ • • The persons who amended-the bill, were-obviously dissatisfied with the election held on February 13th, and desired that it should be abrogated, and the Legislature must be-pre? sumed to have known of the-object and purpose of the amended bill, and to have" enacted the special provisions governing the special election to he held on April 10th, 1908, so that a larger number of members could give expression of -their preferences for directors, than was allowed by the by-laws of the society. 4. It appears that at the Merchants’ Bank on April 10th, 1908, at about noon, the sum of $300 was handed to Mr. Charles T. Matthews; the treasurer of the society, by Mr. Ingle, the' cashier of the bank, and a list of about twenty-seven names given him of persons who were supposed to be members of the society, and whose proxies the Whitridge ⁴⁷⁷ people held, with the understanding that the dues of such of them as should he allowed to vote at the election should-he .taken out of that sum and the residue returned to the bank. Mr. Matthews took the money, but immediately handed it back to Mr. Ing’le, who took 'charge of it and turned it over to the teller of the bank. .The money was not put to the credit of Mr. Matthews, either as treasurer or in his private capacity.

In fact he kept no account at that bank, either in his own right or as treasurer of the society. The day after the special election, Mr. Douglas H. Thomas, the President of the Merchants’ National Bank, and one of the candidates on the Whitridge ticket, handed Mr. Matthews $55 as the dues- of eight of the twenty-seven persons whose names were on the list above mentioned. The votes of these eight persons had been accepted by the judges of the election and the votes of .the other nineteen had been rer jected. We do not think this transaction amounted either to a valid payment, on April -10th, 1908, of the' dues of the eight persons, or to a lawful tender of payment of their dues.

It was not' a good payment,-because there had been' no acceptance of any specific sum of money by the treasurer on behalf - of the society, and no appropriation of any certain sum to the-dues of any member; and it was not a good tender, because it was made1 to depend on a contingency that could not happen until -the election had actually taken place. • To be effectual, a tender must be absolute and unconditional. As the votes of five of these eight persons were rejected by the lower Court, upon other 'grounds, this ruling affects only the votes of three of such persons, and as the dues of one of these were duly tendered by Miss Briathwaite; it in fact only controls the votes of two, as presented by the plaintiffs’ 14th and 34th bills of exception. - We think the- votes of these two members should not'have been counted. ■ ’5. It appears that the office of the society was' located at 612- N. Calvert street, that Miss Keech was the bookkeeper, in charge of the books there, duly bonded and authorized to ⁴⁷⁸ receive membership dues; that she kept the books of account and drew the checks which were signed by Mr. Matthews, the treasurer, whose private office was located at 117 W. Pratt street. Eor a long period the dues of members had been invariably paid at the office to Miss Keech, who made the proper entries in the books of the society, and deposited the money in the bank to the treasurer’s credit.

A few days before April 1st, 1908, the president of the society telephoned to the office of the society and gave directions that no more dues should be received there, but that they must be paid to Mr. Matthews at’ his private office, 117 W. Pratt street. A day or two after this direction had been given, Miss Bi'aithwaite, a young'lady in the office of Dr. Thomas Shearer, at his request, went to the office of the society, 612 1ST. Oalvert street, and tendered to Miss. Keech $75, as the annual dues for 1907, of each of fifteen persons, members of the society, whose-name were plainly written on the outside of the fifteen envelopes which she carried in her hand, each containing the sum of $5.

Miss Keech refused to accept the money and informed Miss Braithwaite that she had been instructed by the president of the society not to receive any more dues there, and that she should go to the office of Mr.