Dorsey v. Ennis

• Decision Date: 31 October 1934
• Docket Number: 73.
• Citation: 175 A. 192,167 Md. 444
• Parties: DORSEY v. ENNIS ET AL.
• Court: Maryland Court of Appeals

175 A. 192

167 Md. 444

DORSEY v. ENNIS ET AL.

No. 73.

Court of Appeals of Maryland

October 31, 1934

Appeal from Baltimore City Court; Eugene O'Dunne, Judge.

Petition for writ of mandamus by Charles A. Dorsey against Robert B Ennis and others, constituting the Board of Supervisors of Elections of Baltimore City. From an order dismissing the petition, petitioner appeals.

Affirmed.

Appeal from order dismissing petition for mandamus to compel omitting of candidate's name from ballot, if that were only relief sought in petition, would be dismissed as moot where appeal came on for hearing after election.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, PARKE, and SLOAN, JJ.

J. Kemp Bartlett Jr., and Geo. Cochran Doub, both of Baltimore, for appellant.

Willis R. Jones, Deputy Atty. Gen. (Wm. Preston Lane, Jr., Atty Gen., on the brief), for appellees.

OFFUTT Judge.

Charles A. Dorsey and Alex McK. Montell were candidates at a primary election, held on September 12, 1934, for membership on the Republican State Central Committee from the Eleventh ward of Baltimore City.

Montell at that time was, and still is, a member of the board of election supervisors of Baltimore City, and because of his tenure of that office, Dorsey requested him to either withdraw as a candidate, or resign as a member of the board of election supervisors of Baltimore City. He refused to do either and on August 23, 1934, Dorsey filed in the superior court of Baltimore City against the board of election supervisors a petition setting forth the facts stated in which he prayed that court to issue a writ of mandamus against the defendants requiring them to (1) omit Montell's name from the ballot to be used in the primary election, and (2) after September 12, 1934, to certify and declare Dorsey the duly elected member of the Republican State Central Committee from the Eleventh ward of Baltimore City. The defendants answered, admitted the facts stated in the petition, and further said that "membership upon the Republican State Central Committee of Baltimore City is not an office within the meaning of section 8, and show that before your respondent Montell, could be appointed to the office of a member of the Board of Supervisors of Election, it was necessary for him to have the approval of the Republican State Central Committee for Baltimore City under the provisions of section 1 of article 33." A demurrer to the answer was overruled on August 28th, and the case haying been submitted on the petition and answer, the petition was on the same day dismissed. On September 4, 1934, this appeal was taken from that order, and on September 17, 1934, the record was filed in this court.

Since the election has been held, it is apparent that the time has passed for any alteration in the ballot used in it, that the right of the petitioner to have Montell's name omitted from it is moot, and that in respect to that relief the remedy sought would be wholly nugatory and ineffectual. If that were the only relief prayed, the appeal would therefore be dismissed as a matter of course. Thom v. Cook, 113 Md. 85, 77 A. 120; Baldwin v. C. & P. Tel. Co., 156 Md. 556, 144 A. 703. But there remains the prayer that the writ issue to require the board of election supervisors to certify and declare "after September 12, 1934," that Dorsey "is duly elected a member of the Republican State Central Committee from the Eleventh Ward of Baltimore City."

While the contest between Montell and Dorsey was decided at a primary election, because of the nature of the position for which they were candidates, it was as to them also a final election, so that the proceeding is no longer one to prevent Montell from becoming a candidate at an election but one to try the title of Montell to the position for which he and Dorsey were candidates.

The case was argued in this court as though the only question presented was whether Montell, while a member of the board of election supervisors of Baltimore City, was ineligible as a candidate for membership on the Republican State Central Committee from the Eleventh ward of Baltimore City. But since Montell was in fact a candidate at an election which has been held, that inquiry is idle and meaningless and the only question of eligibility which can now be considered is whether he is eligible for membership on the State Central Committee, not whether he is eligible to become a candidate for that position. In other words, the question now is, assuming for the proposition only that Montell received a majority of the votes at the election for the position, whether the board of election supervisors can be required now to issue a certificate of election to Dorsey, his opponent, on the ground that Montell is disqualified.

But before dealing with that question, we must first decide whether it can be considered in this proceeding.

Commonly the right to the writ of mandamus depends upon facts, circumstances, and conditions existing at the time the petition is filed (38 C.J. 581, 602), and, ordinarily, it will not issue to enforce a duty which does not exist at the time the application is made (Id.), and although there is authority for the proposition that it may under exceptional and extraordinary circumstances issue to prevent an anticipated breach of duty (38 C.J. 581), the rule that the duty must exist at the time application for the writ is made seems to be supported by the weight of authority, and is consistent with former decisions of this court (Board of Com'rs of Public Schools v. County Com'rs, 20 Md. 460; Sterling v. McMaster, 82 Md. 167, 33 A. 461). ...