Graham v. Wellington
| Decision Date | 12 November 1913 |
| Citation | 89 A. 232,121 Md. 656 |
| Parties | GRAHAM, Secretary of State, v. WELLINGTON et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Anne Arundel County; Jas. R. Brashears Judge.
Mandamus proceedings by George L. Wellington and others against Robert P. Graham, Secretary of State of Maryland. From an order directing the writ to issue, defendant appeals. Reversed, and petition dismissed.
Edgar Allan Poe, Atty. Gen., for appellant.
George R. Gaither and Charles J. Bonaparte, both of Baltimore, for appellees.
This is an appeal from an order of the lower court, directing a mandamus to issue against the appellant, the Secretary of State of the state of Maryland, requiring him to certify to the boards of supervisors of elections of Baltimore city and of the counties the nominations of the three appellees by the Progressive party for the offices of United States Senator Comptroller, and Clerk of the Court of Appeals, respectively. The certificates of nomination were not filed with the secretary until October 11th, but the agreed statement of facts made by the attorneys shows that the certificates were intended to be filed by him on October 10, 1913, but the chairman of the Progressive party believing that they should be placed in the hands of the secretary personally, called up by telephone the personal office in Baltimore city of the appellant, and received from a subordinate in that office the message that he was not within the state, and would not return until October 11th, which was correct. No further attempt was made to deliver the certificates until the morning of the 11th, when they were delivered to the secretary in person, and were the same day mailed to the secretary's office in Annapolis. The nominations were made by the members of the state central committee of that body, who were authorized, by the delegates elected at a primary election in convention assembled by a resolution unanimously passed, to fill any vacancy which might or did exist in respect to the nominations of said party for the three offices; the members of the committee having also been elected at the said primary election. There were no candidates at the primary election for those nominations, and they were made by the committee, under the provisions of the statute authorizing vacancies to be filled which may exist by reason of there being no candidates for said offices at the primary election, as the rules and regulations of the governing bodies of the respective parties may or shall provide. The certificates of nominations are not before us, but no objection was made to them for any reason other than the time they were filed. The Secretary of State, upon the advice of the Attorney General, refused to certify the nominations to the supervisors because they were not filed as required by section 47 of article 33 of the Code. In referring to the several sections of this article, we will mean the Code of 1912, which must be borne in mind, as many of the sections are numbered differently in that Code from what they were in the original acts, and from those in the pamphlet issued by the Secretary of State.
Section 47 is as follows: "Except in cases provided for by section 51 and cases of special election to fill vacancies in office caused by death, resignation or otherwise, such certificates of nomination shall be filed respectively with the Secretary of State not less than twenty-five days, and with the board of supervisors of elections, not less than fifteen days, before the day of election." As the day of the election was November 4th, it will be observed that the 10th day of October was not less than 25 days before that time, unless either the 10th of October or November 4th be counted, even if it be conceded that what was done on the 10th of October was sufficient to permit the Secretary of State to treat the certificates as filed that day.
But we cannot concur in the view that what was done by the chairman on that day, as set out in the petition and stipulation of the attorneys, was a compliance with the requirement of the statute. It does not require such a certificate to be filed with the Secretary of the state personally, but it contemplates it being filed in his official office, which is at Annapolis, although, of course, we do not mean to say that if one be delivered to the Secretary of State in person in Baltimore, or at some place other than his office in Annapolis, and he accepts it, that would not be sufficient. These certificates should have been sent to or delivered at the office of the Secretary of State in Annapolis (where his official office is), and the absence of the secretary from his office, or from the state, would not have prevented them from being filed within the meaning of the statute. Presumably some one would be there during office hours to receive them for the Secretary of State, and it is not shown or suggested that the office of the secretary was closed by reason of his absence from the state throughout that day, or that there was no one there who could have received them. If such conditions ever exist, and a certificate of nomination cannot for that reason be filed in time, a wholly different question from the one now before us will be presented. Being of the opinion that what was done by the chairman on October 10th was not sufficient to excuse him for not filing the certificates before October 11th, which was undoubtedly not within the time fixed by the statute, it is not necessary to determine whether filing it on October 10th would have been in time. It will not be amiss, however, to call attention to the terms of the statute, which are, " not less than twenty-five days *** before the day of election."
While the general rule, in the computation of time, is to include one day and exclude the other, and not to include or exclude both, there are many decisions which hold that if a statute indicates that there are to be so many clear days, or requiring so many days at least, both are to be excluded. We will only refer to what was said in Walsh, Trustee, v. Boyle, 30 Md. 266, 267, and without saying more on that subject, we will consider the effect of not filing the certificates until October 11th, which is the earliest day we can treat them as filed.
In determining the effect of a failure to comply with the terms of statutes regulating elections, the preparation of ballots, and who can be placed on them, as well as other matters connected with elections, the intention of the Legislature must be sought for, and when ascertained followed. "This intention may be manifested either by express declaration, or by a consideration of the general scope and policy of the act," as was said by Judge Burke in Carr v. Hyattsville, 115 Md. 545, 81 A. 8.
Courts should undoubtedly hesitate to declare elections invalid merely because some of the requirements of the statute in reference to preliminary matters have not been literally complied with, unless they be declared by the Legislature to be essential to the validity of the election, or be of such character as the court can see they were so intended. But we are not now called upon to determine whether placing on the official ballots the names of those whose certificates of nomination were not filed by the time fixed by the statute could invalidate an election in other respects regular, and we do not want to be understood as intimating that such would be the result, but the real question before us is whether the Secretary of State, with whom the statute required certificates of nominations for such offices as these to be filed not less than 25 days before the day of the election, can be required to certify to the supervisors of elections the names and descriptions of those persons specified in those certificates, although the certificates were not filed with him by the time fixed by the statute.
Section 48 of article 33 requires the Secretary of State to certify to the supervisors of elections of each county and of Baltimore city the nominees for such offices as those before us, not less than 18 days before the election. Sections 47 and 48 of article 33 were in the original act (Laws 1896, c. 202), being there numbered sections 42 and 43, and are still just as they were originally passed in 1896, excepting in that act section 42 provided that the certificates of nomination should be filed, "respectively, with the Secretary of State, not less than twenty days, and with the boards of supervisors of elections not less than ten days before the day of election." By the act of 1900 (c. 366) that section was amended so as to provide that those to be filed with the Secretary of State should be filed not less than 25 days, but still left 10 days as the time for them to be filed with supervisors of elections. Then by chapter 133 of the Laws of 1902 the section was amended to read as it now does. Those amendments show that the Legislature did not consider the time originally fixed sufficient. No change has been made in what was originally section 43 (now 48) since it was passed in 1896, and the fact that such amendments were made is a strong indication that the Legislature intended to require the certificates to be filed not less than the number of days respectively mentioned before the day of election. If 24 or 20 days would, in its judgment, answer, the Legislature could have had no reason for amending the original provisions, which it did at its second session, after the original act was passed.
Section 43 of article 33 () authorizes nominations to be made otherwise than by a convention or primary election, usually spoken of as independent nominations, or those by petition, upon compliance with its requirements. If what is now ...
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