White v. Laird

Boyd, C. J., delivered the opinion of the Court. The appellant and the appellee, Philip D. Laird, were candidates for nomination for the House of Delegates from Montgomery County on the, Democratic ticket at the primary election held in that county on the 14th of September, 1915. The Board of Canvassers certified that the appellant received 1946 votes and Mr. Laird 1955 votes — three other candidates having more votes than they, and the contest being between them for the fourth place, as that county was entitled to four delegates. The appellant filed a petition with the Supervisors of Elections, asking that the ballots cast be recounted and recanvassed, and on September 24, 1915, the Supervisors, sitting for the purpose of recounting and reviewing said ballots and acting under section 199-B of Article 33 of the Code, proceeded to recount and recanvass the ballots cast at said primary election for the appellant and the appellee, Laird, and they determined that Mr. Laird had a majority of three votes.

The appellant filed a petition for a mandamus to compel the Supervisors of Elections to reject 120 ballots which they counted and to count four which they rejected and to declare the result of the election accordingly. A demurrer was filed to the answer of the Supervisors, and a motion to quash part, and a demurrer to the. other parts of the answer of Philip D. Laird were filed. In the answer of Mr. Laird there was a demurrer to' the petition, qiiestioning the authority of the Court to grant a mandamus upon the case stated in the petition. The lower Court passed an order sustaining the demurrer of Mr. Laird and dismissing the petition.

Erom that order this appeal was taken. ¹²² In the case of Foxwell v. Beck, 117 Md. 1 , it was decided that the primary election law did not provide for a contest over a nomination. That case was decided November 22nd, 1911, and by an Act approved January 10th, 1912, provision was made for an appeal to the Supervisors of Elections, and for a recanvass and recount of the ballots cast. Section 160-Y, Chapter 2 of Laws of 1912, being 199-B of Article 33 of Code (Vol. 3). The two acts of the Supervisors relied on in the petition as the ground for the mandamus are: 1st.

That the Supervisors counted 12Ó ballots (64 of which were marked for Laird and 56 for White) which were not marked with a black lead pencil, but with an indelible pencil; and 2nd. That they rejected four ballots not defective upon their face, three being for petitioner and the other blank as to them. The lower Court based its order on the ground that “the authority conferred by the law upon the Board of Supervisors for conducting and determining such appeals as the one instituted by the present petitioner clearly involves the exercise of judgment and is consequently not a proper subject for revision or regulation in a mandamus proceeding.” The statute (sec. 199-B of Art. 33) gives the right of “appeal from and review of the action and decision of the judges of election in counting ballots and for a recanvass and recount of the ballots cast,” etc., and the Supervisors are “given jurisdiction and power to hear and determine said appeals; to review and correct the action of the judges of election in their respective jurisdiction and to recanvas's, recount and certify said result of said primary election. And for all the purposes of said review, recount, recanvass, etc., the said Supervisors of Elections shall act and be judges of election for counting said ballots, acting as such in the premises within their respective geographical jurisdictions.” It further provides that the Supervisors shall “produce before them the ballot-boxes, returns, tally sheets and paraphernalia of said election and shall proceed forthwith in a summary way without answer, pleading or technicality, and without ¹²³ requiring any evidence to be taken or proof submitted, to review the actions of the judges of elections and recount the ballots in the precincts named in said petition,” etc., and “said review, recount and recanvass shall be had with all possible expedition and dispatch and in preference to all other business under such mode of procedure as the Supervisors of Elections shall prescribe by means of tellers appointed by them on the recommendation of and with equal representation to the opposing candidates.

The said Supervisors to pass upon and decide whether any ballot contested by the tellers for either side shall be rejected or counted.” In section 185 of Article 33 there are provisions governing the judges of elections in reference to the count, and it is provided amongst other things, that “the intention, so far as the same may be ascertained from each ballot itself, shall, in the absence of any unlawful or fraudulent mark or device-thereon or enclosed therewith or on the envelope containing-the same, prevail.” There would seem to be no room to doubt that the Supervisors are called upon and required to exercise judgment and discretion in the discharge of their duties and act in at least what is called a. quasi judicial capacity. Anyone who has had experience in contested elections in Courts knows how difficult it often is to determine whether a particular ballot shall or shall not be counted under existing statutes — sometimes requiring the closest scrutiny of the ballots and marks, and demanding the very best judgment the Court is capable of exercising. Other references to statutes might be made to- show that the duties of the Supervisors are far from being merely ministerial. In order to grant the mandamus the-Court would have been compelled to substitute its judgment for that of the Supervisors, as to whether the 120 ballots should be rejected, or the four ballots counted.

The Supervisors saw and examined them, in the presence of the tellers- and counsel of the parties, and they were required by the-statute “to pass upon and decide whether any ballot con ¹²⁴ tested, by the tellers for either side shall be rejected or .■counted.” It may be well to more specifically state the questions the Supervisors were called upon to decide, as shown by the pleadings. We will first consider the 120 ballots. The petition alleges: “That at said session and during all of said recount and recanvass, your petitioner, by counsel, objected to certain ballots being counted to the number of one hundred .and twenty (120), sixty-four (64) of which were marked for the said Laird, and fifty-six (56) of which were marked for your petitioner, upon the ground that said ballots so protested were not marked as required by law with a black lead pencil, said ballots being marked otherwise legally for the said Laird or for your petitioner with a pencil other than a black lead pencil, as required by law, namely, with indelible ■pencil.” The respondent Laird, in his answer, states that, “there were a number of ballots protested by the tellers both for the ■contestant and this respondent, for various reasons, and that in each case the protest was heard and determined by the Board of Election Supervisors, as by law they were required to do, and said ballots so contested were counted or rejected in accordance with the findings of said board in each particular case. He admits that in some instances the reason given for the protest on the part of the tellers for the said I. Eurr White, contestant, was that said ballots had been marked by an indelible pencil, but this respondent does not admit that the marking of said ballots was so done or that that was a material or proper reason for the rejection of said ballots, but this respondent does not know the number of ballots contested for this reason, nor how many of them were cast for either of the parties to said contest, nor does he ■esteem it a material fact, as the Board of Supervisors had by law, in each instance, the right and power to decide as to whether or not such votes should be counted and did in fact, upon each of said protests, decide the questions so presented to them.” ¹²⁵ The Supervisors in their answer “admit that counsel for petitioner objected to certain ballots being counted (the exact number of which is unknown) upon the ground That said ballots were marked with an indelible pencil and not with a black lead pencil as required by law.’ These respondents deny that said ballots were counted contrary to law and in derogation of the rights of the petitioner, but aver that on inspection and passing upon said ballots the respondents, the said Board of Supervisors of Elections, determined them to be properly marked and voted, and that the marks appearing on said ballots were not distinguishable from black pencil marks, as was their duty so to determine.

These respondents further deny that the pencils used by the voters in marking said protested ballots were of a character different from that required to be, or in plain violation of the purpose and intent of the law, but aver and charge that no vote was counted for any of the contesting candidates, after whose name a cross-mark made with a black pencil did not appear.” Section 185 of Article 33 provides that after the voter obtains his ballot, “he, the voter, shall thereupon retire to one of the booths provided for the purpose, taking with him said blank ballot, and shall there with blade pencil¿ and in the manner required by law, prepare such official ballot for voting.” At the end of that section there are these provisions: “If in Baltimore City or in any-county more names are marked for any office than there are persons to be voted for, such ballots shall not be counted for such candidates or delegates, or other persons to be voted for, as the case may be; but the whole ballot shall not for that reason be rejected for candidates for other offices or positions, if any, and a ballot marked by any other than a blade lead pencil shall not be counted. No vote shall be counted in any such county* for any person, after whose name a cross-mark made with a blade pencil does not appear on the ballot when voted.” It will thus be seen that the voter is directed to mark his ballot when he retires to the booth "with blade pencil,” and ¹²⁶ if he has previously prepared his ballot the statute does not in that part of the section say with what kind of pencil it shall be marked. While it does later say “a ballot marked by any other than a black lead pencil shall not be counted,” it in the very next sentence states “No vote shall be counted in any such county for any person after whose name a cross-mark made with a black pencil does not appear on the ballot when voted.” If any distinction between the two was intended, it might be argued that in the counties only a “black pencil” was intended to be required,” but when the statute itself used the term “black pencil” twice, and in so many words directs the voter to> mark his ballot with a “black pencil ’’ can it be possible that votes (in this .case to the number of 120, according to the appellant-) are to. be rejected because they are not marked with a “black lead pencil ’’ although they were marked with a “black pencil” ? Is the voter required to have a chemical or some kind of analysis made, to ascertain whether his “black pencil” is a “black lead pencil,” in order to be sure of his vote ?

Is he to inquire of the election officials whether the pencils they have provided, and are in the booths, are “black lead pencils”,? Inasmuch as , the General Election Laws provide that the voter shall mark his ballot with an “indelible pencil,” and it is well known that there is little, if any, lead in what we ordinarily call “lead pencils,” and it is not shown that there are not indelible pencils which (at least unless moistened) make as black marks as the ordinary pencils in use, it might have a tendency to cause the average voter to believe that the primary election law of Maryland is a snare and delusion, rather than a method of obtaining honest nominations, if Courts must hold ballots to be invalid for such reasons. But as, in our judgment, it is not for us to determine the question in this case, we leave the above inquiries and suggestions without further comment or answer. All we need now say is that it was under the circumstances clearly and unquestionably a matter for the judgment and determination ¹²⁷ of the Board of Supervisors, aud their conclusion thereon was not subject to review by the