Van Gorder v. Board of Supervisors of Elections

Prescott, J., delivered the opinion of the Court. Citizens and voters of Baltimore County appeal from an order of the Circuit Court for said county sustaining a demurrer to ⁴³⁹ their amended petition for a writ of mandamus, which sought to compel the members of the Board of Supervisors of Elections (Board) to accept the sum of $1,920 in full payment for costs of the publication of nominating petitions for appellants. Appellants name four points as “questions in controversy,” but they adopt the rather unusual procedure in three of them of referring to several paragraphs of their petition, and then asking if the allegations of these paragraphs be proven, would they “constitute a legal cause of action”? The real question to be determined is whether the allegations of the petition, considered as a whole, are sufficient to withstand appellee’s demurrer.

We shall, therefore, consider them as a whole, and point out why the trial court was correct in his ruling. For the purposes of this case, we shall assume, without deciding, that a mandamus proceeding is a proper one to obtain relief from officials, who are entrusted with discretion in the performance of their duties, but who exercise that discretion in an arbitrary and capricious manner. The amended petition, in substance, alleges: that petitioners are residents and voters of Baltimore County, and “defendants” constitute the Board of Election Supervisors; that on April 30, 1962, petitioners proceeded to the office of the defendants for the purpose of submitting over 10,000 signatures on nominating petitions; that they were treated rudely, and required to undergo certain indignities, but they filed their nominating petitions; that on May 25, 1962, they received telegrams (presumably from the defendants) requesting $9,204 on, or before, May 28 for the publication of the names; that petitioners filed a petition for a writ of mandamus, to compel the defendants to publish the names of the signatures in accordance with the statute; and that Judge Raine passed an order in which he directed the defendants to publish the names by a certain date, and he stated in said order, “nominees [apellants] will be responsible for the reasonable costs of publication consistent with Section 68 of Article 33” of the Code. The petition further alleges: that prior to the filing of their petitions they “did make inquiry and were advised that the cost of publication * * * would not exceed $2,000.00”; that they had spoken to counsel of the Board and he had stated the ⁴⁴⁰ Jeffersonian or County Paper (county papers) would be satisfactory; that two members of the Board threatened to inflict physical injury on petitioners’ counsel; that the Board arbitrarily and capriciously did cause the names to be published in the Sunpapers for $9,204, “with full knowledge that the cost of the same publication could have been secured from the Jeffersonian for $1,680.00 or the County Paper for $1,920.00”; and that the petitioners had tendered $1,920 to the Board in full payment of publication costs, but this sum had been refused.

The petition prayed that the Board be commanded to accept the $1,920 in full payment from appellants for the publication of the nominating petitions. Code (1962 Cum. Supp.), Article 33, § 68 reads, in part, as follows: “Where such [nominating] petitions are filed with the boards of supervisors of elections, said board within thirty days after the filing of such petition shall cause to be published at least once in a newspaper of general circulation throughout the county, or the City of Baltimore, as the case may be, the names of all of the signers of any such petition, together with an explanation of the nature of the petition to which such persons’ names are affixed. The cost of such publication shall be paid by the nominee whose name is thereby entered on the ballot; * * There can be little doubt that the wording of this section vests a certain amount of discretion in the Board in selecting the newspaper in which to publish the names, and the