Walker v. Oswald

Decision Date16 December 1887
Citation11 A. 711,68 Md. 146
PartiesWALKER v. OSWALD, CLERK OF CIRCUIT COURT.
CourtMaryland Court of Appeals

Appeal from circuit court, Washington county.

Mandamus. Petition filed by William W. Walker appellant, claiming that George B. Oswald, clerk of the circuit court of Washington county, has not correctly proclaimed the result of the election at which the so-called "high-license law" was submitted to the voters of the county, and praying for a writ of mandamus against the appellee. The facts sufficiently appear in the opinion.

Edward Stake, for appellant.

M L. Keedy and F. F. McComas, for appellee.

MCSHERRY J.

By an act of the general assembly of Maryland, passed at the January session of 1886, c. 248, 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 words written or printed thereon, 'Against the high-license law;' and it shall be 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 proclaim 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, 1886, in Washington county, the aggregate number of votes cast for the several candidates for congress was 8,680. The number of votes cast "for the high-license law" was 4,314, and the number "against the high-license law" was 3,825. 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 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 proclaimed the result of said election in accordance with the requirements of said act of assembly," and praying for a writ of mandamus 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 the 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 or 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-matter 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 v. Wainwright, 2 Burrows, 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...

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