Tawney v. Board of Supervisors of Elections

Marbury, C. J., delivered the opinion of the Court. On March 12, 1951, appellant filed with the appellees, the Board of Supervisors of Elections of Baltimore City, a certificate of nomination as an independent candidate for the office of City Comptroller of Baltimore City. This certificate was filed under the provisions of Section 39 of Article 33 of the Annotated Code. By the terms of that article, when the nomination is for an office to be filled by an election to be participated in by the voters of the City of Baltimore, the number of signatures required on a nominating petition is not less than 1,500. ¹²² The appellant claims that at the time he filed his certificate, he thought there were 1,952 signatures upon it, but when these signatures were counted by appellees about four weeks later, there were only 1,796 signatures.

The certificate was admittedly in proper form under the provisions of Section 39, and the only question raised by the appellees with respect to it was that they could identify only 1,269 names as those of registered voters of Baltimore City. Appellant attempted to check the 527 names which were not identified by the appellees, and was able to find 70 of these which appeared to be the signatures of registered voters. He claims he did not have time to go further, and, on April 14, 1951, the appellees rejected his certificate of nomination because it was still 161 names short of the requisite 1,500, according to the information in their office. The appellant thereupon filed his petition for mandamus in the Superior Court of Baltimore City, to require the appellees to include his name on the ballot in the election to be held on May 8, 1951.

The appellees answered this petition, asserting that their investigation of the qualifications of the signers of the certificate was in keeping with their duties, and that their rejection of the certificate, because of the lack of the signatures of sufficient qualified persons, was not unlawful or arbitrary. After a hearing, including the taking of testimony, the court stated that so far as it appeared from the evidence, making all allowances, the certificate was 160 names short of the required number of registered voters, and, for that reason, the petition was dismissed. An appeal was taken here, and we advanced the case and heard it on April 26, 1951. After hearing, on the same day, we passed a per curiam order reversing the order of the lower court and directing that the mandamus issue as prayed.

The reasons for our action are now given. Section 39 of Article 33 has been a part of the election laws of the State at least since the Act of 1896, Chapter 202, in which it was Section 38. The certificate provided ¹²³ by that section, for nominations to be made otherwise than by a convention or primary election, has to be signed by voters “residing in the political division in and for which the officer is to be elected”, and, as we have already stated, in the case of an office to be filled by an election to be participated in by the voters of the City of Baltimore, the number of such signatures must be not less than 1,500. By Section 62 of Article 33, it is now provided that it shall be the duty of the Boards of Supervisors of Elections to provide ballots or voting machines on which they are to print the names of every candidate whose name has been certified to or filed with them in the manner provided for in the elections article.

This was originally Section 49 of the Act of 1896. In the case of Wells v. Munroe, 86 Md. 443 , 38 A. 987, 988 , decided per curiam October 20, 1897, and the opinion filed December 1, 1897, the question was whether a nominee for clerk of the Circuit Court for Anne Arundel County should be placed upon the ballot. The Supervisors of Elections refused to do so, contending there was no vacancy. The nomination was not made under Section 39 (then 38), but the court decided that the appellant’s name should be placed upon the ballot under Section 62 (then 49), saying: “It is manifest it was not the purpose to invest the Supervisors with any discretion as to what names should be placed upon the official ballot. * * * Where the nominations come to the Supervisors, from the proper sources, certified in the proper manner, as the law provides, it is their plain duty to place the names certified to on the ballots; and all ballots shall contain every such name.” In Sterling v. Jones, 87 Md. 141 , 39 A. 424, 425 , which was decided October 30, 1897, the Supervisors of Elections of Somerset County had received a certificate of nomination for county offices signed by more than 200 voters of the county, which was the number then required.

Subsequently, 70 of these parties signed a withdrawal paper. Thereupon the majority of the Supervisors held that this withdrawal left the nomination ¹²⁴ certificate without 200 signatures, and declined to place the names of the persons so nominated on the ballot. The circuit court for the county directed a mandamus to issue, compelling the names to be placed upon the ballot, and, on appeal, this order was affirmed by this court. Chief Judge McSherry, who wrote the opinion, stated: “The Act of 1896 contemplates no such proceeding as is here relied on.

When the nomination certificate is filed, if it conforms to the requirements of the statute the plain and obvious duty of the Supervisors under sections U9 and 50 of the same Act of 1896, is ‘to cause to be printed on the ballot the name of every candidate whose name has been certified to or filed with’ them; and there is no provision whatever authorizing them to receive, consider or act on any withdrawal paper, except a withdrawal by a candidate who has been actually nominated. Certainly there is no authority for the Supervisors, at the request of any one, to erase names from such a certificate. The practice followed in this case, if tolerated by the statute, or by any fair construction of the statute, would open the way to flagrant frauds upon the rights of candidates, and would convert the Supervisors into a tribunal clothed with Judicial functions, and this the Act of Assembly never designed to make them.” (Emphasis supplied.) And then, with respect to the argument of the majority of the Supervisors : “The contention is at war with the whole policy of the law, which entrusts to these ministerial officers no discretion; but imposes upon them an imperative duty to place on the ballot the names of - the persons nominated in any one of the three modes designated in the Act of 1896.” . In the case of Duvall v. Swann, 94 Md. 608 , 51 A. 617, 619 , decided in 1901, a citizen, taxpayer and qualified voter of Prince George’s County, who was also a duly nominated candidate of the Republican Party for the office of county commissioner, filed a petition for a writ of mandamus to compel the Supervisors of Elections of the county not to place upon the ballots the names of ¹²⁵ certain persons who had filed for office as “Reform Republicans”.

It was alleged that the certificate contained only 179 voters who signed in the manner required by law, but the Supervisors counted in addition certain signatures of persons who did not append thereto their places of business, and thus made up the total of 200 then required, and placed the names upon the ballot. The trial court refused to issue the writ, and, on appeal, this court affirmed that order. It was stated in the opinion that it would be obviously futile to reverse it in any event because the election had already been held, but, nevertheless, the court went into the facts of the case and said: “When the certificate of nomination which is the subject of this controversy was presented to the appellees for their official action thereon if it was a purely ministerial duty they had to perform and they were without any discretion in the premises there was but one thing they could do, which was to place the names of the persons nominated in the certificate upon the official ballot; and this as the petition alleges they purposed to do.” The court then went on to say that the petition worked its own refutation, because if the Supervisors had discretion, then that discretion could not be controlled by mandamus. The court did not decide in that case whether the Supervisors had discretion or not in the matter, but specifically declined to pass upon these questions because the case was moot.

In the case of Thom v. Cook, 113 Md. 85 , 77 A. 120, 122 , a bill in equity was filed to prevent the Supervisors from printing on the official ballot the names of certain persons who had been certified as nominees of the “People’s Party” for the House of Delegates, and for certain county offices. The certificate of nomination of these parties contained the names of 300 or 400 persons, but it was alleged that less than 200 were persons who had not joined in the nomination of more than one nominee for each of said offices, but that on the contrary, nearly all of them had joined in nominating candidates in the Democratic primaries. The court below dismissed the ¹²⁶ bill. When the case reached this court, it was held to be moot, but the court quoted Wells v. Monroe, supra, and Sterling v. Jones, supra, to the effect that the Supervisors had no discretion, but it was their plain duty to put the names certified to them on the ballots, and, after quoting part of what we have heretofore quoted from Chief Judge McSherry’s opinion in the last mentioned case, the court, speaking through Chief Judge Boyd, said: “It is not difficult to imagine what may be the result in some instances if they ” (the Supervisors) “ have the power to refuse to put names on the ballot, because under their construction of the provisions of the statute they are not entitled to be placed on it.” In Soper v. Jones, 171 Md. 643 , 187 A. 833, 835 , a citizen, taxpayer and registered voter of 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 a candidate for the United States Congress for that district.

The bill was dismissed and this was affirmed on appeal. The candidate whose name was sought to be kept from the ballot was not nominated by party convention, but had filed with the Secretary of State a certificate of nomination signed by 2,393 names. It was held that although Section 51 of Article 33 (now Section 39) required that the signers should be voters residing in the congressional district, 1,347 out of the 2,393 were not registered at the addresses