Yerkes v. Board of Supervisors of Elections

Pattison, J., delivered the opinion of the Court. In this case Clinton J. Yerkes, a Democratic candidate for sheriff at the primary election held on Friday, September 9th, 1921, in Cecil County, was, by the official count, returned defeated by one J. Wesley McAllister, also a candidate for sheriff of the same party. On the 15th day of September of that year, Yerkes submitted to the Honorable Lewin W. Wiokes, Associate Judge of the Second Judicial Circuit of Maryland, of which Cecil County is a component part, a petition addressed to the appellees, “David Gr. Black, Robert B. Foard and Victor R. Bennett, constituting the Board of Supervisors of Elections for Cecil County,” in which it is alleged or stated that the petitioner thereby appealed from the “action and decision of said judges of election in declaring that J. Wesley McAllister received the highest number of votes cast in said election for the office of sheriff * * * at said primary election,” and requested that said Board should “review said actions and decisions of said judges of said primary election as to votes and ballots cast at said primary election for the candidates for the nomination of sheriff,” and to that end prayed the Board to pass an order “directing all ballot-boxes, returns, tally sheets and other paraphernalia of said election to be produced before it” and to review the action of said judges.

The petition concluded with the offer to give bond to the State of Maryland, in an amount to be fixed by the Circuit Court for Cecil County, to pay the reasonable costs of said appeal, recount, review and recanvass. On the same day Judge Wiokes passed the following order: ⁴⁵⁷ “Ordered this 15th day of September, 1921, by the Circuit Court for Cecil County that Clinton J. Yerkes, contestant in the above entitled case, give bond in the sum of $500.00, with approved security, to pay the reasonable costs of said appeal, recount, review and re-canvass in the above mentioned case. “It is further ordered that a copy of said petition and this order be served on the supervisors of elections by September 20th, 1921.” On the said 15th day of September, 1921, a bond was submitted to and approved by Judge Wickes., pursuant to his order previously passed, and a copy of said petition, with the heading thereto “In the Circuit Court for Cecil County— Ro. 2 Petitions! — September Term-, 1921,” was thereupon served upon Black, Foard and Bennett, Supervisors of Elections for Cecil County, by the sheriff of that county. In response to the petition of the appellant, September 21st, 1921, was fixed by said Supervisors as the day upon which they would sit to recount and recanvass said ballots, and that fact was communicated to the appellant, hut on that day counsel for J. Wesley McAllister appeared before the hoard and objected to the recount, because, as stated in the petition for a mandamus subsequently filed, the petition filed by the petitioner was not properly filed in that the case had been filed in the Circuit Court and not before- said Board, and upon that contention the Board of Supervisors refused the recount and recanvass requested by the petitioner. Thereafter, on September 24th, 1921, the appellant filed, in the Circuit Court for- Cecil County, a petition asking that the writ of mandamus be directed to said Black, Foard and Bennett, Supervisors of Elections for Cecil County, commanding them “to order all ballot boxes, returns, tally sheets and other paraphernalia of said election to be produced before them, and further commanding them to review the actions of the judges of said election held on said 9th day of September, 1921, in so far as the same related to the nomination for the office of sheriff of said Democratic party, and ⁴⁵⁸ recount and recanvass the said ballots for said nomination for said office in the election districts and precincts of Cecil County cast in said primary election for each of the candidates for the Democratic nomination for said office of sheriff.” The petition alleged the facts that we have stated, together with the further fact that “the petition which was submitted to the judge, and upion which the order aforesaid was written, was upon the same day, namely, the 15th day of September, 1921, handed to the Cleric of the Circuit Court for Cecil County, and immediately thereafter, on the 16 th day of September, 1921, copies of said petition were placed in the hands of the Sheriff for Cecil County, to be delivered to the Board of Supervisors of Elections for that county, and were by said Sheriff served upon said Board of Supervisors of Elections on the 16th day of September, 1921”; though the day upon which the copy was served upon them is not shown by the Sheriff’s return.

The petition further' alleged that “the reason stated by counsel for the said J. Wesley McAllister upon which said Board acted, namely: that said petition had been filed in the Circuit Court for Cecil County, and not before said Board, was entirely without foundation in law or fact, the fact being, that within seven days from the date of said primary election-said petition, * * properly addressed to said Board, as will appear by reference to copy of same filed herewith, was regularly and duly served and delivered to said Board by the Sheriff of Cecil County, acting for and on behalf of and at the direction of your petitioner.” The petition was answered by the appellees on September 26th, 1921, and, among other things, it is therein alleged that “the petitioner never filed with the Board a petition for a recount and recanvass of the votes cast in said primary election with respect to nomination for said office of sheriff of Cecil County * * *, and, furthermore, that no petition or proceeding of any sort whatsoever with respect to a recount and recanvass of said votes cast in said primary election for the office of sheirff * * * was in any manner whatsoever filed ⁴⁵⁹ with or referred to the Board within seven days after said primary election of September 9th, 1921/ and in their answer the appellees denied “that the said copy of said petition and order * * * was served by the Sheriff * * * upon the defendant Board of Supervisors of Elections, on the 16th day of September, 1921, as alleged in said * * * petition,” but the answer avers “that on Saturday, September 17 th, 1921, more than, seven days after the date of said primary election,” the Sheriff of Cecil County left with each of the members of the said Board of Supervisors “a paper' purporting to be a copy of the petition which had been filed in the office of the Cleric of the Circuit Court for Cecil County by banding” to each of them said alleged copy “without ever reading it or calling his attention in any manner whatsoever to what it contained or to what it related”; that “the whole of said pro1eeedings alleged to be a service of said petition, for whatever it might be worth, took place more than seven days after said primary election of September 9th, 1921, and, therefore, were not in compliance with, but were in disregard and violation of, the provisions of section 199B,” art. 33 of the Code. A demurrer filed to the answer was overruled and the petition dismissed by the court, and it was from the action of the court in dismissing the petition that this appeal was taken. This appeal raises two questions, first, were the filing by the appellant in the office of the Clerk of the Circuit Court for Cecil County of the petition addressed to the Supervisors, and the proceedings that followed, in compliance with the requirements of the act in respect to the procedure thereunder; and second, if so, did the appellant, within the meaning of the act, “petition the Board of 'Supervisors of Election” “within seven days after the date of the primary election.” See. 199B, art. 33 of the Code provides: “Within seven days after the day of any primary election any candidate for a nomination or for delegate to any convention or for executive or member of any committee or position who has been defeated on ⁴⁶⁰ the face of the returns may petition the Supervisors of Elections of Baltimore City or of any county of the State for an appeal from and review of the action and decision of the judges of election in counting the ballots and for a recanvass and recount of the ballots cast in any or all of the precincts of said county or city or ward or legislative district or political division therein * * * . “The supervisors of elections of Baltimore City and of the several counties of the State are hereby given jurisdiction and power to hear and determine said appeals; to review and correct the action of the judges of election in their respective jurisdictions and to re-canvass, 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. “Upon the filing of said petition as aforesaid, accompanied by affidavits made by officers of election or by watchers, challengers or by other persons setting forth acts of fraud, mistake, error or irregularity in making said count or returns by the judges of election, or setting