Summerson v. Schilling

Boyd, J., delivered the opinion of the Court. The appellant filed a petition in which he prayed for a writ of mandamus against Messrs. Schilling, Thomas, McGraw and Krebs, Judges of Election of the 9th Precinct of the 10th Ward of Baltimore City, “ commanding them to give unto your petitioner proper assistance to enable him to mark his ballot at the ensuing general election to be held on the 5th day of November, 1901, or at any other election to be held during the ensuing year.” The defendants answered and amongst other things stated that Judges of Election had no authority under the Act of 1901, ch. 2, or under any pre-existing law, to give assistance to the petitioner in marking his ballot. The appellant then obtained leave to file an amended petition in which he made defendants the Judges of Election and the two ballot clerks for that precinct.

In that he asked for a mandamus against the Judges of Election commanding them to take his ⁶⁰⁵ affidavit that he cannot read or write, “ at the ensuing general election to be held on November 5 th, 1901, or at any other election to be held during the ensuing year,” and against the two ballot clerks commanding them to mark upon the ballot of the petitioner the names of the candidates for whom he shall desire to vote. The petitioner demurred to the several answers and on the 25th of November, 1901, the Court overruled the demurrers. Thereupon the petitioner moved the Court to remove the case to a Court of equity which motion was overruled and the petition dismissed. The petitioner then appealed “ from the order overruling the demurrers of the plaintiff, denying his motion to have the case transferred to a Court of equity, and dismissing the petition.” Much that we have said in the case of Summerson v. Schilling et al., Board of Registry, etc., is applicable to this case.

The theory upon which appellant proceeded was that sec. 62 of Art. 33, as amended by the Act of 1901, ch. 2, is unconstitutional and void, and hence did not repeal that section as enacted by the Act of 1896, which provided that “ any voter who declares under oath to the Judges of Election that he cannot read or write, or that by reason of physical disability he is unable to mark his ballot, and who shall have stated such inability at the time of registering, and is so entered in the registers, shall receive the assistance of the clerks in preparing the same in the manner following, etc. The Act of 1901 provides that voters who are not disabled by blindness or physical disability shall not be entitled to receive assistance. If the Act of 1901, had never been passed, it is manifest that the Judges of Election could not be compelled by mandamtis to give the petitioner “ proper assistance to enable him to mark his ballot,” as the law prior to that Act authorized the clerks, and not the judges, to give the assistance. That was doubtless the reason the petition was amended and there can be no question that the writ as prayed for in the original petition could not have been issued, whatever construction be placed on the Act of 1901. But the same difficulty that existed in the case against the ⁶⁰⁶ Board of Registry exists here.

This petition was dismissed on the 25th of November, 1901—twenty days after the election. It is manifest that quoad that election it would have been nugatory to have issued a mandamus. But it is said that the petition applies to the election of