Soper v. Jones

Bond, C. J., delivered the opinion of the Court. The appellant, as a citizen and taxpayer of Baltimore City, and registered voter in the Fourth Congressional District, filed a bill in equity to restrain the Secretary of state from certifying to the board of supervisors of elections of the city the name of Ross Thalheimer, for printing on the ballot as that of a candidate for the United States Congress from the Fourth District, at the election of November 3rd, 1936, and to restrain the board from printing the name on the ballot. A demurrer to the bill by Thalheimer, intervening on his own behalf, was sustained, and the bill dismissed. After argument on the appeal, this court concluded that the decree must be affirmed, and so ordered on October 16th, 1936, deferring the filing of a reasoned opinion to avoid delay so near the ⁶⁴⁵ time of election.

The reasons which led to the conclusion are now stated. The candidate, Ross Thalheimer, was not nominated at a party convention or primary election, but produced for the Secretary of State a purported certificate of nomination signed by 2,393 names, to comply with the requirement in the Code, art. 33, sec. 51, of a certificate signed by at least 1,500 names of voters in the district to procure nomination and inclusion on the ballot. It is complained that the certificate fails to comply with the statute, because oaths specified to be taken before justices of the peace appear on this certificate to have been taken before a notary public, and because fewer than 1,500 of the signatures attached conform to the statutory requirements. A question of jurisdiction in the court of equity to interfere, on these allegations, was first raised and decided below.

That the court of equity has no jurisdiction to decide election contests, and generally, to interfere in political controversies, has been decided in a number of cases in this state as well as elsewhere. Hardesty v. Taft, 23 Md. 512 ; Hamilton v. Carroll, 82 Md. 326 , 33 A. 648 ; Annapolis v. Gadd, 97 Md. 734 , 57 A. 941 ; Thom v. Cook, 113 Md. 85 , 77 A. 120 . But a contention that no controversy that affects elections may be heard and decided by the court would be at odds with other decisions. In Carr v. Hyattsville, 115 Md. 545 , 81 A. 8 , jurisdiction was entertained of a bill to invalidate a referendum election on an act for local improvements because the ballots used were not worded exactly as prescribed.

In Graf v. Hiser, 144 Md. 418 , 125 A. 151 , it was held that an injunction should have issued to restrain any proceeding with the creation of a special taxing district because a referendum election under a statute authorizing it was not properly held, with the result that the statute had not become effective. And in Sun Cab Co. v. Cloud, 162 Md. 419 , 159 A. 922 , the holding of a referendum election was restrained on the ground that signatures attached to a petition for it were not in compliance with the constitutional requirements. ⁶⁴⁶ In the case last cited, a distinction was drawn between interferences by the courts with the political conduct of elections, and taking jurisdiction of a question whether persons assuming to avail themselves of the election machinery set up for private initiative are persons entitled under the law to do so. And the question in the present case seems analogous to that of which the court assumed jurisdiction. Private persons presenting a petition to have a name placed on the ballot by the prescribed method of signed certificates are alleged to be not such persons as may avail themselves of that method.

There is no other tribunal which can afford the preventive remedy if this is true. The writ of quo warranto, found adequate in decisions in other states, is not one used in Maryland. Hawkins v. State, 81 Md. 306, 311 , 32 A. 278 . Exceptions to the rule that equity will not interfere with elections are widely recognized, although there are differences of view impossible to reconcile on principle.

See 78 Univ. of Pa. Law Rev. 645; Pomeroy, Equity Jurisprudence (4th Ed.) secs. 1753 and 1755; Notes, 33 A. L. R. 1376, and 70 A. L. R. 733. But for the purposes of this case the precedent in Sun Cab Co. v. Cloud, supra, appears to settle the question sufficiently. See McCreary, Elections (4th Ed.) sec. 388.

The court .is of opinion ¡that the provision in section 3 of article 68 of the Code, empowering notaries to administer oaths in all matters and cases of a civil nature in which a justice of the peace may administer an oath, applies to validate the oaths to ¡tire names on this certificate. It is comprehensive in its terms, with the apparent intention of removing any restriction of administration of oaths to justices only, and it is generally understood to give notaries the power in all cases. We can think of no object in excepting these particular oaths from the general rule. The Election Law, Code, art. 33, sec. 51,