Price v. Ashburn

Briscoe, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Worcester County, dated the 2nd day of December, 1913, sustaining the petitioner’s demurrer to the respondents answer, in a mandamus proceeding and ordering the writ to issue, directing the appellants, the respondents helow, as a Board of Canvassers of Election for Worcester County to ⁵¹⁶ forthwith, convene, and to canvass the votes cast for State Senator in the Eighth Election District of that county, held on November 4th, 1913, and to declare the result. The order passed by the Court in the case, and appealed from, is as follows: “In the above case it is ordered this 2nd day of December, 1913, by the Circuit Court for Worcester County that the demurrer of the petitioner to the respondents’ answer filed herein he, and the same is hereby, sustained; and, upon the fact stated in the relator’s petition and admitted in the respondents’ answer, it is further ordered that the writ of mandamus issue forthwith commanding the respondents to convene and canvass the votes for State Senator in the 8th Election District of said county as shown by the original statements or returns and tally sheets'thereof mentioned in the petition and answer, and to add up the votes, together with the votes for State Senator in all other districts of the county, as shown by the original statements or returns and tally sheets of the election held on November 4th, 1913, in the county, and to make abstracts or statements of the same, and to transmit the last named statements, so to he'made by the respondents attested by the signature of their chairman and secretary, to the Clerk of the Circuit Court for said county.” The petition avers, that the appellee, a, citizen and voter, duly qualified of Worcester County, Maryland, was a candidate for the office of State Senator for that county, at an election held on the 4th day of .November, 1913; that the election was duly held in the Eighth Election District of that county on that date, and all the requirements of the election law of the State were complied with by the judges and clerks in the holding of the election, as will appear by the returns and certificates made and returned as the law required; that two of the judges, and one of the clerks of the Eighth Election District refused to sign the returns, and certificates at the close of the election in that district, upon certain grounds, and ⁵¹⁷ for certain reasons, stated in a return made by them and that copies of such written statement were sent up with the returns to the Board of Canvassers as required by law, and were received by them. And that the Board of Canvassers refused to canvass the returns as thus certified and sent to them.

It further avers, that the petitioner was voted for at the election for the office of State Senator of Worcester County, and received a large majority of the votes cast in the district, and that by casting out and rejecting the vote of the district, the result of the entire vote of the county was so changed, as to defeat him for the office of Senator, whereas if the vote of this district had been counted, he would have been elected. The petition, then avers, that under the law, and the facts as stated, it was the duty of the Board of Canvassers' to reconvene, canvass the returns, and declare the result of the votes cast in that district for State Senator, and prayed for a rule upon the Canvassing Board, the defendants, to show cause why a writ of mandamus should not be granted. The Board of Canvassers answered the petition on the 18th of Roverdber, 1913, and in its answer they set out at length the several facts relied upon in reply, and the reasons given for not canvassing the returns. The answer, however, nowhere denies or controverts the averments of fact, set out by the petition, hut substantially admits them as true as alleged. 26 Cyc. 453.

By the second paragraph of the answer, it is averred, that after the election held in the Eighth Election District of Worcester County, Maryland, on the fourth day of Rovember, 1913, two of the judges and one of the clerks of the election district declined and refused to sign the returns of the election in the election district, and stated their reasons therefor in writing, a copy whereof, signed by themselves was enclosed with each return; and two- of the judges and one of the clerks of the election district declined and refused to sign thq set of tallies of said election in the election district, and stated their reasons therefor in wilting, a copy whereof. ⁵¹⁸ signed by themselves was enclosed with said tally sheets; and that the original statements or returns and the tally sheets were duly delivered to these respondents, organized and sitting as a Board of Canvassers, on the Thursday next following the election, and that upon opening all the envelopes containing the returns and tally sheets, these respondents found that the returns and tally sheets were not signed by two of the judges and one of the clerks of the election, and enclosed with each of the returns, and each of the tally sheets, was a paper signed by the two judges and the one clerk, giving their reasons for not signing the returns and tally sheets, which written statements of reasons was sealed by these respondents, and is in their custody, and a copy of the returns is filed as Exhibit No. 1. It is as follows: “Stockton, Md:, Nov. 5, 1913. We, the undersigned Judges and Clerk of the Eighth Election Dis. of Worcester Co., refuse to sign the returns of said district for the reason that from what came to our notice we believe there was illegal voting done at this polling place Nov, 4th, 1913.” The first, third, fourth and fifth paragraphs of the answer in view of the conclusion we have reached, become immaterial, and need not be stated. By the sixth paragraph of the answer it is further averred that at a meeting of the Board of Canvassers the following resolution was, on motion, adopted by a majority vote of the board: “Resolved, That the Board of Canvassers of Worcester County, Maryland, do refuse to canvass the returns and tally sheets of the Eighth Election District of Worcester County, of the election held on the fourth day of November, 1913, in the county, because the same are not in conformity with the law, are illegal and invalid, and that the same be and are hereby rejected.” By the seventh paragraph of the answer, it is stated, that by the term “refuse to canvass” used in the resolution these ⁵¹⁹ respondents meant that they refused to add up and include in the certificate of election the alleged returns from the eighth election district and that as a matter of fact they did examine and consider the statements from the district and rejected the district because of irregularities in the alleged returns in that they were not signed by two of the judges and one of the clerks of the district and becanse they were therefore not in conformity with law. _ The appellee demurred to this answer, and on this state of pleadings the case was heard.

The Court below sustained the demurrer, aud directed the writ to' issue. The right to a speedy hearing and decision of the case, in this Court upon the transmission of the record, or on the original papers is specially provided for by the Statute. By section 86 of Article 33 of the Code, it is provided that there shall he the same right of appeal as in other mandamus eases, hut such appeal shall he taken within five days from the date of the decision complained of, and shall be heard and decided by the Court of Appeals, as soon after the transmission of the record as possible, and the testimony taken in such cases shall he sent up to the Court of Appeals as part of the record. But apart from this statute, section 44 of Article 5 of the Code, also provides, that from every judgment or order granting or refusing a peremptory mandamus iu any case hereafter brought involving the title or right to a public office cither party shall have a right to appeal, and on "such appeal, the clerk of the Court shall forthwith transmit the original papers, including the judgment or order to the Court, of Appeals, and said Court, shall immediately hear and determine the case.

It is manifest, we think, that this ease involves the right to a certificate of election to a public office, and was entitled to an immediate hearing and determination by this Court, according to the provisions of the statute cited and referred to above. It was done in Creager v. Hooper, 83 Md. 490 , ⁵²⁰ and Covington v. Buffett, 90 Md. 578 , and these cases are directly in point and are controlling here. . The case was therefore heard by us on the 19th of December, 1913. It was fully argued by counsel on both sides and our conclusions upon the questions involved, were thereafter announced in a per curiam opinion.

We will now briefly state the reasons upon which that decision was based. The contention that the writ was improperly directed to> be issued after demurrer to the answer and without proof to support the allegations of the petition, cannot prevail. A demurrer to an answer in a petition for mandamus has been recognized in this State as a proper and regular practice and procedure since the case of Eichelberger v. Sifford, 27 Md. 320 . The question was directly determined in Hardcastle v. R. R. Co., 32 Md. 32 , and has since been followed and sanctioned by this Court: Barney v. State, 12 Md. 480 ; County Commrs. v. Banks, 80 Md. 322 ; Hooper v. New, 85 Md. 586 ; Frederick County v. Fout, 110 Md. 170 .

In Beasley v. Ridout, 94 Md. 649 ; Sudler v. Lankford, 82 Md. 148 , and Legg v. Annapolis, 42 Md. 222 , relied upon by the appellant, there was no answer whatever, or an insufficient answer, and the Court properly held that the proceedings were not conducted as prescribed by Article 60 of the Code, so as to properly present the question». Hooper v. New, supra, disposes of any question as 1o the propriety of the procedure in this case and is applicable here. We said in that case, “an answer was filed; and to that answer a demurrer was interposed. The demurrer admitted all the facts set up in the answer, and raised purely and simply a question of law, and that question was whether conceding every fact averred in the answer to be true, a valid legal ground was shown against the issual of the writ.

The answer is still in the case. The sustaining of the demurrer did not strike out the answer as a successful