Walker v. Oswald

McSherry, J., delivered the opinion of the Court. By an Act of the General Assembly of Maryland, passed at the January session-of eighteen hundred a'nd eighty-six, chapter two hundred and forty-eight, after making provision as to the mode of procuring and the price 'to be paid for a license authorizing the sale of spirituous, fermented and intoxicating liquors in Washington County, it is enacted as follows: “ Sec. 7. And be it enacted, That upon the first Tuesday after the first Monday of November, eighteen hundred and eighty-six, the voters of said county at the general election then to be held, shall determine by ballot whether or not the provisions of this Act shall go into effect in said county; those favoring the Act will cast their ballots with the words written or printed thereon, 'For the High License Law,’ and those opposing the Act will cast their ballots with the ¹⁴⁹ words written or printed thereon, ‘ Against the High License Law/ and it shall he the duty of the judges of said election to make a full return of the ballots cast as aforesaid, as now provided by law, to the clerk of the Circuit Court for Washington County, who, upon the certified returns, shall immediately make proclamation as to the result of said election.” “Sec. 8. And be it enacted, That if a majority of the voters of said county shall determine by their ballots in favor of the ‘ High License Law/ and the clerk of said Court shall so proclámate to the people of said county, the provisions of this Act shall take effect on the first day of May, eighteen hundred and eighty-seven.” At the general election which was held on the second day of November, 'eighteen hundred and eighty-six, in Washington County, the aggregate number of votes cast for the several candidates for Congress, was eight thousand six hundred and eighty.

The number of votes cast “for the high license law” was four thousand three hundred and fourteen, and the number “against the high license law” was three thousand eight hundred and twenty-five. On the fifth day of November the Clerk of the Circuit Court for that county issued his proclamation setting forth the number of votes cast, both for and against the high license law, and certifying and declaring “that it appears from said returns, now on file in my office, that upon said question a majority of the voters of said county have determined by their ballots in favor of the ‘high license law.’ ” On the second of May following, the appellant, a dealer in spirituous, fermented and intoxicating liquors, in the county named, applied to the Clerk of the Circuit Court for a license authorizing him to sell such liquors, and tendered to the clerk, in payment for the license, the amount fixed by the general license laws of the State, which amount was less than that prescribed by the Act now under consideration. The clerk refused to issue the ¹⁵⁰ license to the appellant unless he would pay the sum named in the Act now in question, and would also comply with the other provisions thereof. Upon such refusal the appellant filed in the Circuit Court for Washington County a petition charging that “in truth and in fact a majority of the voters of said county at said election, have not determined by their ballots in favor of the high license law, and that said clerk has not correctly and truly proclamated the result of said election in accordance with the requirements of said Act of Assembly;” and praying for a writ of fnandamus against the appellee, the Clerk of that Court, requiring him to issue to the appellant the license previously applied for, without a compliance on the part of the appellant with any of the provisions of the Act now before us.

The appellee answered this petition, and a statement was filed showing the number of votes cast at said general election upon this measure and for the congressional candidates; and a pro forma order was passed refusing the writ. From that order this appeal has been taken. It thus appears, and in fact it is conceded, that the number of votes cast in favor of the high license law was not equal to a majority of all the votes cast at the same election for the several candidates for Congress; though the votes actually cast in favor of this law constituted a majority of all the votes polled on that particular subject. The single question, therefore, presented by this appeal is, whether, under these circumstances, the Act became operative and effective; or, stated in other words, did the adoption of the Act depend upon its receiving in its favor a majority of all the votes cast at that election upon some other subject or subjects; or upon its receiving a majority of the votes cast specifically for and against its adoption ?

It has been settled, both in England and in this country, by an almost, if not quite, unbroken current of judicial decisions from the time of Lord Mansfield to the present day, that when an election is held at which a subject-mat ¹⁵¹ ter is to be determined by a majority of the voters entitled to cast ballots thereat, those absenting themselves and those who being present abstain from voting, are considered as acquiescing in the result declared by a majority of those actually voting; even though, in point of fact, but a minority of those entitled to vote, really do vote. Thus in Oldknow vs. Wainwright, 2 Burr., 1017, which was a feigned action to try a right of election to the office of town clerk of Nottingham, the fourth issue was “whether Thomas Seagrave was duly elected by” the Mayor, Aldermen and Common Council; and there was a special verdict, wherein after setting out the constitution of the borough, that the voices were all equal votes, the vacancy of the office of town clerk and a regular summons to elect another, it proceeded as follows: “That the whole number of electors was twenty-five ; and that out of that number, twenty-one assembled on the twenty-sixth of May, pursuant to the said summons; that the Mayor put Thomas Seagrave in nomination, and that no other person was put in nomination; that nine of the twenty-one voted for him, but twelve of them did not vote at all, but eleven of them protested against any election at that time,” &c., Lord Mansfield held : “Whenever electors are present, and don’t vote at all (as they have done here) they virtually acquiesce in the election made by those who do.” Judge Folger in People, ex rel. Furman vs. Clute, 50 N. Y., 461 , delivering the opinion of the Court says: “It is also the theory and practice of our government, that a minority of the whole body of qualified electors may elect to an office when a majority of that body refuse or decline to vote for any one for that office. Those of them who are absent from the polls, in theory and practical results, are assumed to assent to the action of those who go to the polls, and those who go to the polls and do not vote for any candidate for an office are hound by the results of the action of those who do,” &c. ¹⁵² Conceding this to be true with respect to a special election held for the purpose of submitting a single question to the popular vote, it is insisted on the part of the appellant, that a different principle should prevail in a case like this where, at a general election, the measure, though receiving a majority of the votes cast on that subject, failed to receive a majority of the votes cast upon some other subject.

Hence, as we have already stated, the sole ground upon which it is claimed that the Act in question failed to become effective is, that at the general election when the subject was voted on, less than a majority of those who voted for the Congressional candidates cast their ballots “ for the high license lawand not that a majority of those who voted on this subject did not vote in favor of it. This