Capron v. Mandel

• Decision Date: 30 April 1968
• Docket Number: No. 47-A,47-A
• Parties: Mrs. William CAPRON v. Marvin MANDEL et al. dv. . Per Curiam Order
• Court: Maryland Court of Appeals

Page 255

250 Md. 255

241 A.2d 892

Mrs. William CAPRON v. Marvin MANDEL et al.

No. 47-Adv.

Court of Appeals of Maryland.

Per Curiam Order April 30, 1968.

Opinion May 31, 1968.

John Silard, Washington, D. C. (Louise A. Terzian, Rockville, on the brief), for appellant.

Alfred L. Scanlan, Bethesda (Thomas Hunter Lowe, Easton, on the brief), for appellees.

Before HAMMOND, C. J., and HORNEY ^*, MARBURY, BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

ORDER

PER CURIAM.

For reasons to be stated in an opinion to be filed later, it is this 30th day of April, 1968,

Ordered By the Court of Appeals of Maryland that the order of the Circuit Court for Montgomery County dated April 10, 1968, dismissing the bill of complaint be, and it is hereby, affirmed with costs to be paid by the appellant; and it is further

Ordered that the mandate be issued forthwith.

FINAN, Judge.

The appellant filed suit for 'Declaratory and Equity Relief in the court below, as a resident and registered voter of the Democratic Party in Montgomery County, Maryland, the named defendant (appellee) being 'Marvin Mandel, Chairman of the Democratic State Central Committee for Maryland, and the Democratic State Convention.' Mandel filed a motion to dismiss the bill for improper venue and want of an indispensable party, in that the complaint failed to name the 'Democratic State Central Committee for Maryland' as a party defendant. The court overruled these objections from the bench and after an answer was filed by Mandel, proceeded to hear the case on its merits. At the conclusion of the hearing on the merits, the appellant was permitted, over the timely objections of the appellee, to amend her complaint to include the 'Democratic State Central Committee for Maryland,' as a defendant. The lower court in its opinion stated that, 'The defendants before the court are Marvin Mandel, Chairman of the Democratic State Central Committee for Maryland and the Democratic State Central Committee for Maryland.'

The purpose and object of the complaint was to enjoin the Democratic Party of Maryland from holding a scheduled state convention to select and certify delegates to the Democratic National Convention to be held in Chicago, Illinois, some time in August of this year. The gravamen of the complaint is that at the time of the election by the registered voters of the Democratic Party of their State Central Committee in 1966, the Central Committee did not possess the power to effect the election of a nominee for President of the United States, by a State or National Convention through nomination of delegates, and that any such power is derived exclusively from Chapter 392 of the Acts of Maryland 1967, which empowers the previously elected members of the State Central Committee to constitute a State Convention of the Democratic Party. The appellant contends that since the Presidential Primary Law enacted in this State in 1912 was repealed by Chapter 784 Section (b) of the Acts of Maryland 1965, the present method of holding a state political party convention for the purpose of electing delegates to a national convention as set forth in Chapter 392 deprives her of her right to participate, directly or indirectly, in an informed selection of delegates to the National Donvention of the Democratic Party. The main thrust of her challenge is that the procedure provided by Chapter 392 deprives her of the 'due process' and 'equal protection' guaranteed her by the Fourteenth Amendment to the United States Constitution, in that it violates the 'one person one vote' rule pronounced by the United States Supreme Court in Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1966). A more detailed recitation of the facts and contentions set forth by the appellant in her complaint and argument is unnecessary for the reason that this opinion in deciding the liminal jurisdictional issues pertaining to venue and necessary party becomes dispositive of this appeal.

The record does not reveal any comment on the part of the lower court explaining its refusal to grant the appellee's motion to dismiss the complaint for improper venue and want of a necessary party. The court's opinion dealing with the case on its merits is devoted to an erudite historical review of the manner in which political parties in this State over the years have selected delegates to national party conventions.

We are satisfied that the parties to this suit, their counsel who ably argued this case, as well as the lower court, would be gratified if this Court were to come to grips with the intriguing constitutional questions presented by this appeal; however, to do so would manifest a callous indifference to the jurisdictional flaws revealed by the pleadings. It is appropriate to recall the quotation from Justice Holmes, aptly referred to by counsel for the appellees: 'Law is secreted in the interstices of procedure.'

Although the appellee Mandel did not file any cross appeal to the lower court's refusal to grant his motion to dismiss the bill because of improper venue and want of a necessary party, we do not think a cross appeal was necessary to raise on appeal the correctness of the lower court's ruling on the preliminary motion. In Kikas v. County Com'rs of Baltimore County, 200 Md. 360, 89 A.2d 625 (1952), the court, although dealing with a demurrer rather than a motion challenging venue and jurisdiction, stated:

'The defendants could not have appealed immediately from the order overruling the demurrer, but that ruling is made reviewable on appeal from the final decree (Rules Respecting Appeals, 6A). The defendants did not appeal from the final decree because it was in their favor, but if the complainants did not state a proper case in their bill of complaint, and the demurrer should have been sustained, then the case proceeded erroneously to a final decree, no matter in whose favor it was rendered. The correctness of the ruling on the demurrer, therefore, is immediately before us on this appeal.' Id. at 363, 89 A.2d at 626.

VENUE

First, considering venue, the record reveals that the defendant Marvin Mandel, Chairman of the Democratic State Central Committee, did not at the time of this action reside in Montgomery County, nor did he maintain an office there, or regularly conduct business there. Code 1957, Art. 75, § 75(a) (Cum.Supp.1967) provides:

'(a) No person shall be sued out of the county in which he resides until the sheriff or coroner of the county in which he resides shall have returned a non est on a summons issued in such county: * * * and provided further, that any person who resides in one county, but carries on any regular business, or habitually engages in any vocation or employment in another county, may be sued in either county * * *.'

The conclusion is obvious that it was improper to bring Mr. Mandel into Montgomery County for the purpose of suing him as Chairman, Democratic State Central Committee. The privilege of a defendant to be sued only in the county of his residence is a substantial right not to be denied except in strict compliance with the exceptions established by law.

The office of Chairman of the Democratic State Central Committee is not a public office, but rather a party office, a distinction emphasized in 47 Op.Atty.Gen. 69, 71 (1962); 43 Op.Atty.Gen. 162 (1958); and 19 Op.Atty.Gen. 251 (1934).

However, even if Mr. Mandel were to be considered a public official the result would be the same. See, Eck v. State Tax Commission of Maryland, 204 Md. 245, 103 A.2d 850 (1954). In that case an appeal was taken from the action of the Montgomery County Circuit Court dismissing a petition for a writ of mandamus filed against the State Tax Commission of Maryland, in Montgomery County, for improper venue. Henderson, J., speaking for the Court in an affirming opinion, stated:

'They contend that at common law a public officer could be sued in a transitory action wherever found and the rule has not been changed by Section 158, Article 75 of the 1951 Code (now Article 75 Section 75(a)), which they say is inapplicable to public officers.' Id. at 248; 103 A.2d at 852.

'(W)e think the matter is covered by our general venue statute, and that public officers are within its scope.' Id. at 253; 103 A.2d at 855.

The rule requiring an individual, a quasi public official, or a public official, to be sued in the county wherein he resides, or wherein he or the office he may represent carries on its business, is grounded on a rule of convenience. Each of the 23 counties of this State and Baltimore City maintain Circuit Courts and to hold that Mr. Mandel, as State Chairman of the Democratic State Central Committee, residing in Baltimore, could legally be compelled to defend 24 lawsuits, conceivably simultaneously pending, would expose him to an unconscionable burden.

There is nothing in the record to show that Mr. Mandel as Chairman of the Democratic State Central Committee 'carries on regular business' in Montgomery County, Maryland, save for the notices he dispatched from Baltimore to the members of the Democratic State Central Committee residing in Montgomery County informing them of the proposed State Convention to be held in Baltimore on March 29, 1968. There is no evidence that he maintained in Montgomery County any office, telephone listing or bank accounts, as Chairman of the Democratic State Central Committee. We do not think that his activity of sending out notices to members of the Committee in Montgomery County or the telephone calls that he made to them from his office or home in Baltimore City or his attendance at occasional meetings in Montgomery County, constituted the carrying on of regular business or habitual engagement in any vocation as required by Article 75, § 75(a).

In National Bank of Baltimore v. Steele, 143 Md. 484, 122 A. 633 (1923), the appellee, who was a practicing attorney residing and maintaining a professional office in Carroll County, was sued in ...