Fitzgerald v. Quinn

• Decision Date: 15 October 1930
• Docket Number: 101.
• Citation: 151 A. 660,159 Md. 543
• Parties: FITZGERALD ET AL., BOARD OF SUPERVISORS OF ELECTIONS, v. QUINN.
• Court: Maryland Court of Appeals

151 A. 660

159 Md. 543

FITZGERALD ET AL., BOARD OF SUPERVISORS OF ELECTIONS, v. QUINN.

No. 101.

Court of Appeals of Maryland

October 15, 1930

Rehearing Denied Oct. 24, 1930.

Appeal from Circuit Court, Somerset County; Jno. R. Pattison, Joseph L. Bailey, and Robert F. Duer, Judges.

Application in the circuit court by Lorie C. Quinn, Jr., for a writ of mandamus to compel Albert G. Fitzgerald and others constituting the Board of Supervisors of Election for Somerset County to recount and recanvass the ballots cast at a primary election. Order made, and writ issued, and the Supervisors appeal.

Reversed.

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

Randolph Barton, Jr., and Eugene A. Edgett, both of Baltimore, for appellants.

Isaac Lobe Straus, of Baltimore, and J. Owen Knotts, of Denton (Harry C. Dashiell, of Princess Anne, on the brief), for appellee.

BOND C.J.

A first question in this case is whether the statutes of the state allow a review by the circuit court of a county of a decision by the board of supervisors of elections on a recount and recanvass, under section 217 of article 33 of the Code, of votes cast in a primary election.

Upon a petition to the board of supervisors of elections for Somerset county for a recount and recanvass of ballots cast in a primary election, certain ballots were rejected, and it is alleged that the appellee here would have been nominated for state senator if those ballots had been counted, but, as a result of the rejection, was declared defeated for the nomination. In a petition by him to the circuit court for a writ of mandamus to compel the supervisors to count the rejected ballots, it was alleged that all the ballots at two polling places had been rejected because some only had been improperly initialed by or for the judges of election. The answer of the supervisors conceded the ground of rejection in wrongful initialing of ballots, but denied that ballots other than those improperly initialed had been rejected, and alleged that on the contrary each individual ballot had been considered, examined, and acted upon, and that those rejected had been rejected for the improper initialing. A demurrer was filed to this answer, and duly argued; and, by an order passed upon the case presented on the face of the petition without denial in the answer, as the circuit court found, it was held that the rejection of the entire lot of ballots cast at the two polling places was an improper arbitrary proceeding, and the court issued its writ ordering that the supervisors recount and recanvass the whole. The order appears to have taken it as settled upon the allegation of the petition, without denial in the answer, that there had been a rejection of the whole for supposed defects in some ballots. But, as has been stated, the answer, as this court reads it, denied rejection of ballots other than those found wrongly initialed, and the only fact conceded and so settled for the court upon the face of the papers, was this one fact that ballots initialed in the supposed wrongful manner had been rejected. And, if that is true, this is the only fact upon which the judgment might be asked on the papers alone. Rejection of more ballots than those initialed as described was a controverted fact, to be settled only by proof, which has not been taken. Moore v. Bay, 149 Md. 286, 289 131 A. 459. The question now presented for decision, therefore, is whether the trial court should have disregarded as insufficient the answer so explaining the rejection of ballots, and have ordered the supervisors to count ballots initialed in the manner complained of.

By the Code, article 33, §§ 200 and 75, it is provided that in a primary...