Robertson v. Dorsey

Markell, J., delivered the opinion of the Court. This is an appeal from a judgment, entered September 30, 1949, for respondent for costs, dismissing on de ²⁷³ murrer a petition for mandamus to require respondent “to vacate the office of minority member of the Board of Election Supervisors of Baltimore City” and to declare that office “vacant until such time as the Republican State Central Committee for Baltimore City submits a list from which a valid appointment is made”. On October 29, 1949 this appeal was taken. Petitioner (so he alleges) is a citizen, voter and taxpayer of Baltimore, files his petition on behalf of himself and all other citizens similarly situated, and is a member of the Republican State Central Committee for Baltimore City.

The Committee consists of forty-two members, a majority of whom constitute a quorum. Pursuant to Art. 33, sec. 1(d), Code, 1947 Supp., the Governor on January 14, 1949 requested the Committee to designate at least four eligible candidates for the office of “minority member” of the Board. On January 31, 1949, without any meeting of the Committee, the Governor received a communication, signed by twenty-seven members and the Chairman (not a member) of the Committee, purporting to be a designation by the Committee of four eligible candidates, [including respondent]. On February 2 and February 21, 1949 petitioner, and on February 22, 1949 another member of the Committee, stated to the Governor that no meeting of the Committee had been held.

On February 21, 1949, seven of the twenty-seven signers of the communication of January 31, 1949 “withdrew their names”, which fact the Governor knew. On February 24, 1949 the Governor “designated” respondent “as his selection for minority member” of the Board. Respondent “took his oath of office on June 6, 1949 and is presently exercising the duties of said office”. Petitioner charges that the action of the Governor is invalid and respondent is “illegally performing the duties of minority member” of the Board.

Under Art. 33, sec. 2, 1947 Supp., Supervisors of Elections “hold office for two years and until their successors are appointed and qualified, unless sooner removed * * * by the Governor * * It is not stated in ²⁷⁴ the petition, but it was said — and not disputed — at the argument that respondent was appointed and qualified as Supervisor in 1947 and held office as such at the time he received the subsequent appointment which petitioner charges is invalid. If the action of the lower court were reviewable on the merits, we might be confronted with questions, among others, whether, in a case in which neither the Governor nor the Republican Committee are parties, (a) an office can be declared vacant until the Republican Committee does something it has neglected to do, (6) especially