Sudler v. Lankford

Robinson, C. J., delivered the opinion of the Court. The Board of Supervisors of Election for Somerset County is composed of two Democrats and one Republican. The Republican supervisor presented the name of a Republican for ballot clerk in each of the election districts of said ■county, all of whom were rejected by the two Democratic supervisors. The Republican supervisor then submitted the names of three persons for Republican ballot clerk in each district, from whom the Democratic supervisors should select one from each district.

The Democratic supervisors refused to select from these names, but appointed a Republican ballot clerk in each election district of their own selection, and who was not one of the three names submitted to them by the Republican supervisor. This is an application for a mandamus to compel the two Democratic supervisors to select one of the three persons submitted by the Republican supervisor as ballot clerks for each election district of the county. It is contended on behalf of the Democratic supervisors, that inasmuch as they constitute a majority of the board, they have the right by reason of that majority to appoint any person as Republican ballot clerk whom they may see proper to appoint, provided the person so appointed is a Republican and a resident of the election district. The’ appellee claims that in the event of all the supervisors not being able to agree as to the appointment of a Republican ballot clerk, he, as Republican supervisor, has ¹⁴⁶ the right to submit the names of three eligible Republicans for ballot clerk, and that the Democratic supervisors are obliged by the terms of the statute to select one of the three names thus submitted.

The question turns entirely upon the construction of the Act of 1890, chapter 538, section 152, and the Act of 1892; chapter 701. This latter Act provides that the Governor shall biennially appoint, with the consent of the Senate, in each county, three supervisors of election, two of whom shall always be selected from the two leading political parties of the State, one from each of. said parties. Under this Act the practice has been to appoint two Democrats and one Republican supervisor. The Act then provides, that it shall be the duty of these supervisors to appoint three persons for each election district of the county, who are residents and voters of such election districts, as judges of election, and in making these appointments they are to select at least one of said judges for each district from among those of the leading political parties different from themselves or a majority of themslves.

In other words, if the majority of the Board of Supervisors are Democrats, they must appoint one judge who - is a Republican. And this is all the law requires as to the appointment of judges of election. Now, it is well settled that where appointments are to be made by any public board, and no method is specifically pointed out for the exercise of the power the majority rule governs. And therefore judges of election for the counties may be under the statute appointed by a majority vote.

When, however, the law comes to provide for the appointment of ballot clerks and other officers of election, a different mode of appointment is prescribed. The Act does not say simply that they shall be appointed by the Board of Supervisors, as it did in the appointment of judges of election, but provides in express terms that the 'ballot clerks or other officials shall be appointed as provided by section 152, chapter 538, Act of 1890. Now this section ¹⁴⁷ provides that the Board of Supervisors shall appoint two ballot clerks for each election district; each one of the supervisors shall have a vote upon the proposed selection or nomination of any election clerk, and if in any instance, in consequence of such vote, the board cannot agree upon such appointment, then the names of three persons who are eligible shall be submitted for selection for election clerks by the supervisor or supervisors belonging to the leading political party entitled to be represented by such election, clerk, and out of each three names the other supervisor or supervisors representing the other leading party of the State shall select the name of such election clerk, who,, when so selected, shall be appointed election clerk if otherwise eligible, and shall serve, unless excused by said Board of Supervisors of Election, so that there shall be two ballot, clerks for each voting place. The statute