Wilkinson v. McGill

Marbury, C. J., delivered the opinion of the Court. The General Assembly of Maryland, by Chapter 13 of the Acts of the Special Session of 1947, made provision for the creation of a sanitary district in Allegany County, to be under the supervision of a body to be known as La Vale Sanitary Commission. The Act is long, and there is no occasion in this opinion to discuss its provisions, other than to say that authority is given to the Commission to provide water supply, sewerage and drainage systems within election district No. 29 of the County. It provides for the issuance of bonds and the levying of taxes therefor.

The Commission is to consist of three persons residing in election district No. 29, to be appointed by the Board of County Commissioners of Allegany County. Each of these commissioners is to receive a salary. It is also enacted that the provisions of the Act shall not take effect, until it has first been submitted to the qualified voters of the contemplated district, and ³⁹⁰ approved by a majority of those voting. The election is to take place within 90 days after the passage of the bill, which was approved November 10, 1947.

The Board of Election Supervisors of the county is authorized to determine the time, place or places, and the manner for the submission of the question, and for ascertaining the re- . suits. In holding such election or elections, the General Election Law of the State, Code Supp. 1947, art. 33, is to apply whenever applicable. This Act was declared to be an emergency act and was passed by three fifths of all the members elected to each of the two houses and was to take effect from the date of its passage. As Article XVI of the Constitution does not apply to such public local laws, Dinneen v. Rider, 152 Md. 343 , 136 A. 754 , the effective date of the Act, therefore, subject to the referendum provided for in it, was November 10, 1947.

The Board of Supervisors of Elections of Allegany County held a special election on January 22, 1948, in which, according to the testimony, 692 registered voters participated. The majority for the bill was 16; 354 voting for it, and 338 against it. On February 10, 1948, the appellees, consisting of 38 voters, residents and taxpayers of Election District No. 29, suing for themselves as well as for all others who might come in and contribute, filed their bill of complaint in the Circuit Court for Allegany County, alleging, among other things, that the Act was not properly submitted to the qualified voters, because a registration was held by the Board of Election Supervisors on December 20, 1947 at the Court House in Cumberland, without any proper notice, that such registration was conducted by the clerk and not by the Board, that the books were open for only five hours, and as a result, 28 (the evidence shows 26) people registered illegally and that the election was illegally held in a bowling alley, in violation of Section 9 of Chapter 934 of the Acts of 1945.. The court was asked to declare that the Act had not been lawfully adopted, that the election was null and void, that the Act was not in effect, and to restrain the County Commissioners from ³⁹¹ appointing the Sanitary Commission, and from exercising any authority or power under the Act.

The Tax Collector was also made a party defendant. Thirty-nine other residents and taxpayers of the district asked leave to intervene as defendants and thereafter filed an answer. The County Commissioners and Tax Collector also filed an answer, and a cross bill in which they asked for a declaratory judgment to the effect that Chapter 13 is constitutionally valid, that the election held was a valid election, or if the latter is not the case, that Chapter 13 should be resubmitted at another and valid election. To this cross bill the defendants filed a demurrer.

Testimony was taken and the Chancellor came to the conclusion that the Act was valid and constitutional, but that the election of January 22, 1948, was not valid and therefore, the statute is not in force. The court also sustained the demurrer to the cross bill, because the Board of Election Supervisors of Allegany County, which was authorized to call the election under the Act, was not made a party. The court enjoined the official defendants from exercising any authority and power under the provisions of the Act. From this decree all the defendants, both official and personal, appealed.

The additional contention was made in the bill of complaint and in the lower court that Chapter 13 of the Acts of 1947, Special Session, was unconstitutional and void because it was claimed that its title was imperfect, and did not comply with Section 29 of Article 3 of the Constitution. No appeal was taken by the appellees, because they were successful below on other points, but we have examined this question and have come to the conclusion that the chancellor was correct in his decision that the Act was valid. The only questions before us on this appeal are those respecting the election, and the supplemental question, to be decided if we hold the election void, as did the lower court, whether a new election can be held. The reasons for the contention that the election is void are two-fold: First, that part of it was held in a bowling alley under ³⁹² the circumstances hereafter related, and in contravention of the election laws of the State; and second, that there was an illegal registration of 26 people of whom 23 voted; and that as the majority in favor of the Act was only 16, these illegal votes, if cast in favor of the Act, carried the election, whereas, if they had not voted, it is probable that the election would have been decided the other way.

These two contentions will be considered in their order. The testimony showed that the polling place in the 29th Election District of Allegany County had been for a number of years, at the residence of a Mrs. Lancaster. Notices of the election were published in the Cumberland News and in the Cumberland Evening Times by the election supervisors on December 17 and 22 and January 7, 14 and 20. The first notice stated that the polling place of the second precinct in District No. 29 would be the residence of Mrs. Lancaster, but the subsequent notices said that this polling place would be Jack Poisal’s Bowling Alley in Allegany Grove.

After the first notice was posted, and about three weeks before the election, Mrs. Lancaster called the Board, and said that the election could not be held in her house, as had been heretofore the custom. As a result, the clerk and some of the election officials attempted to find a new polling place. The only available place they could find was the bowling alley, in which there was no bowling from midnight until after seven o’clock in the evening. The bowling alley was used for the election, which was held from seven in the morning until seven in the evening on January 22.

On that morning, Mrs. Lancaster put a notice on her home which remained there all day, that voting was to be at Poisal’s Bowling Alley. It is not shown that any voter was deceived by the change thus made, and it is apparent that if anyone went to Mrs. Lancaster’s house to vote, the notice posted there would indicate where the voting was being held. The appellees contend, however, that the use made of the bowling alley as a polling place violated two provisions of the General Election Laws of the State. ³⁹³ One of these is Section 9 of Article 33, Code (1947 Supp.), which provides that “in no case shall a * * * election be held in any building or part of any building used or occupied as a * * * bowling alley.” The other is Section 10 of Article 33, Code (1947 Supp.), which provides that the Board of Supervisors shall give ten days notice of the time and place of all elections in each precinct by advertisement and by hand bills. It is obvious such violations did occur, and the question before us is whether they render the election void.

There is a clearly recognized difference between the interpretation given to provisions of the election laws before election and the construction of these same provisions after election. The election officials are required to do what the law tells them to do and this can be enforced by appropriate court action, Munsell v. Hennegan, 182 Md. 15, 27 , 31 A. 2d 640 , 146 A. L. R. 660, but when an election has been held and it is not shown that the failure of the officials to observe the requirements of the law has interfered with the fair expression of the will of the voters, courts have generally held that the result of the election will not be disturbed. The reason for this is that unimportant mistakes made by election officials should not be allowed to thwart the will of the people freely expressed at the ballot box; or as better expressed by this Court, speaking through Judge Alvey, in the case of State v. County Commissioners of Baltimore County, 29 Md. 516 , at page 522, “* * *. That it should be in the power and election of subordinate ministerial or executive officers, by refusing to obey the law, to defeat and nullify it, is a proposition too startling to be favorably entertained in a court of justice.” There have been a number of cases in this Court in which irregularities have been asserted to render elections void and the Court has uniformly adopted the construction above set out where the irregularities did not affect the result.

In the case of Smith v. Hackett, 129 Md. 73 , 98 A. 140, 142 , the polling place for a precinct in Dorchester County was in an adjacent precinct, al ³⁹⁴ though just across the street. The Court said no discretion or authority was vested in the Board of Supervisors to go beyond the outlines of a precinct to secure a polling place. Their duty was to find one within the area and this duty could have been enforced by judicial processes upon a showing that it was about to be disregarded. However, the issue was not raised until after the election, when the voters of the precinct had resorted to the only voting place provided for them, and the question was whether their votes should b'e rejected because of the failure of duty on the part of the election officials.

The Court decided that this would not be done, saying: “In the absence of any proven injury to any interest involved from the mere fact that the polling room for the precinct was at the location mentioned, we can find in that circumstance no just cause for invalidating the entire vote of the precinct and depriving the candidates for whom it was cast of its legitimate effect. This would be far too serious a result to recognize as a proper and necessary consequence of the particular breach of administrative duty under consideration.” In the case of Seyboldt v. M. & C. C. Mt. Ranier, 130 Md. 69 , 99 A. 960, 962 , one of the objections to the validity of an act which had to be approved at an election was that insufficient notice of the election had been given. The Court said there was no non-compliance with any “mandatory statutory requirement.” It is not necessary to go beyond our own decisions, but it may be noticed that in a number of other jurisdictions similar conclusions have been reached.

See State v. Salt Lake City, 35 Utah 25 , 99 P. 255 , 18 Ann. Cas. 1130 (defective notice); City of El Dorado v. Jacobs, 174 Ark. 98 , 294 S. W. 411 (changed polling place); City of Albuquerque v. Water Supply Co., 24 N. Mex. 368, 174 P. 217 , 5 A. L. R. 519 (notice); Taylor v. Taylor, 10 Minn. 107 , Gil. 81 (notice); Sykes v. Pandora, etc., District, Tex. Civ. App., 14 S. W. 2d 124 (notice); Loop v. McCracken, 151 Wash. 19 , 274 P. 793 (general irregularities); Gilligan v. Special Road, etc., District, 74 Fla. 320 , 77 So. 84 ³⁹⁵ (general irregularities); People v. Graham, 267 Ill. 426 , 108 N. E. 699 , Ann. Cas. 1916C, 391 (location of polling place), citing cases from New Jersey, New York, Nebraska, New Hampshire, Texas, Kansas and Mississippi; State v. Hackmann, 304 Mo. 478 , 264 S. W. 389 ; Lamb v. Palmer, 79 Okl. 68 , 191 P. 184 ; Womack v. Nettles, 155 La. 359 , 99 So. 290—all as to location of polling places. The general subject of the effect of irregularities in an election is discussed in McQuillin’s Municipal Corporations, 2nd Ed. Revised, Vol. 5, Par. 2361, where it is said “* * * mere irregularities which do not prevent a full and free expression of opinion of the will of the electors, and change the result, will not invalidate the election.

This rule has been applied to irregularities in notices; * * * in the time and place of the election * * *. The reason is that the courts are anxious rather to sustain than to defeat the popular will.” These principles do not apply to a situation where there is a preemptory requirement designed to safeguard the integrity of elections, the neglect of which presents an apparent opportunity for fraud. An illustration of this is the recent case of Hammond v. Love, 187 Md. 138 , 49 A. 2d 75 , in which we held that ballots, which were not properly initialed should not be counted. Our conclusion on this phase of the case is that as to the failure to give the required notice, as to the change in the place of holding the election after the first notice was given, and as to the holding of the election in a bowling alley, none of them are shown to have affected the ultimate result, and, as mere irregularities, they should not be allowed to set aside what the voters have decided.

The second question presented presents more difficulty. A registration was held in the Court House in Cumberland for the purpose of permitting the qualified voters who had recently become residents of Election District No. 29 to change their precinct registration so that they might vote at the special election. This was on December 20, 1947. There was no advertisement of it in the newspapers as required by Section 10 of Article 33 of ³⁹⁶ the Code.

The registration was not conducted by the members of the Board, who were not present, but by their clerk, who registered 26 persons. The only notice the public had of this so-called supplemental registration was a newspaper article in the Cumberland News on December 18 which stated that Charles B. Wherritt, Chairman of the Water Committee of the La Vale Civic Association, which was sponsoring the measure to be voted on, said that the Allegany County Board of Election Supervisors had agreed to open the office in the court house basement on Saturday, December 20 from one until six P. M. There was also a similar article in the Cumberland Evening Times on December 18, also quoting Mr. Wherritt. In both articles, Mr. Wherritt is quoted as saying that “The arrangements were made after a number of La Vale residents had made inquiries regarding voting restrictions.” It is admitted by all parties that there was no authority in the Board or in the clerk to hold such a registration, that the 26 names