Leonard v. Woolford
| Decision Date | 16 June 1900 |
| Citation | 46 A. 1025,91 Md. 626 |
| Parties | LEONARD v. WOOLFORD. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Dorchester county; Henry Lloyd, Judge.
"To be officially reported."
Action by George W. Woolford against James C. Leonard to contest election for office of county commissioner. From an order directing a recount of the ballots, defendant appeals. Affirmed.
Argued before FOWLER, BOYD, PEARCE, SCHMUCKER, and JONES, JJ.
Robert P. Graham, Phillips L. Goldsborough, and Thos. W. Simmons for appellant. S. T. Milbourne, Clement Sulivane, W. Laird Henry, and A. L. Miles, for appellee.
This is an appeal from the circuit court for Dorchester county in a contested election case, involving the title to the office of county commissioner for that county. At the last general election there held, November 7, 1899, James C. Leonard and George W. Woolford, both citizens of said county eligible to said office, were opposing candidates therefor, and their names were printed as such upon the official ballots used at said election. The board of canvassers, after casting up the votes given at said election for county commissioner according to the returns from the several election districts duly certified to the clerk of the circuit court for the county the number of votes cast for each candidate, and determined and declared that James C. Leonard was duly elected county commissioner for Dorchester county for the term of six years. Woolford, on November 25th following, filed a petition contesting the election of Leonard, on the ground of errors and mistakes in counting the ballots, and asked a recount of all the ballots cast at the election. An amended and a second amended petition were subsequently filed, upon which latter, in connection with the supplemental petition hereinafter mentioned, the case was heard. A demurrer was filed to the second amended petition, which was overruled with leave to answer, and answer was filed accordingly. Thereupon the court passed an order prescribing rules for procedure in the case, and the parties began taking testimony thereunder. This proceeding was interrupted by an order from the house of delegates of Maryland requiring the ballots cast at that election to be sent to Annapolis, to be counted by the elections committee in the contested election case of Pattison v. Andrews for a seat in that body, and, upon the return of the ballots from the elections committee, Woolford filed a supplemental petition, alleging that the ballots which had been rejected by the judges of election in the original count were, in the count by the elections committee, so mingled and confused with the ballots counted by the election judges as to render absolutely necessary a recount of all the ballots cast at said election, in order to determine whether the contestant or the contestee had been duly elected; and on the same day the court passed an order granting the prayer of the petition, and prescribing rules for conducting the recount. In the previous order the court had refused to direct a recount of all the ballots at that stage of the case, but had reserved the right to pass such order at a later day, if proper ground should be shown therefor. A demurrer was filed to the supplemental petition, which was overruled the same day; the court stating the proper motion would have been to rescind the order for a recount, but granting leave to file the demurrer, to be regarded as filed before order passed, and to present the question at final hearing. The contestee thereupon filed a motion to quash the order directing a recount of all the ballots, on the ground that, in passing it, the court exceeded its jurisdiction, and this motion was overruled. A lengthy amended answer was then filed to the second amended petition, the taking of testimony was resumed, and, when completed, was returned with the papers and documents to the court, as required by its order, and on April 7th the court filed a tabular statement and decision showing the result of the contest, as determined by it, to be the election of the contestant by a plurality of 18 votes, and on the same day passed an order declaring George W. Woolford, the contestant, to be duly elected commissioner, and directing and requiring James C. Leonard, the contestee, to pay the costs of the contestant in the cause. From that order, this appeal was taken two days thereafter.
The second amended petition sets out the qualifications for candidacy of the contestant and the contestee for the office of county commissioner at the election of November, 1899 that the returns from that election, as certified by the canvassing board, showed that the contestant had received 3,168 votes for said office, and the contestee 3,203 votes for the same office, or a plurality of 35 votes over the contestant; and that the contestee was accordingly certified as elected over the contestant. The petition further alleged that, notwithstanding this certificate and return, the contestant had received a plurality of all lawful ballots cast at said election, and was duly elected over all competitors, and then proceeded to specify irregularities, errors, and wrongful acts of the judges of election in counting said ballots which caused the result certified. These specifications were as follows, in substance: (1) That a number of ballots were wrongfully counted for the contestee, because improperly and illegally marked, by the voters, with a cross mark outside of the space provided for said mark at the right of the Republican emblem, and without a cross mark in any space provided therefor on the ballots; (2) that a number of other ballots were wrongfully counted for the contestee, because the voter had placed, in the space provided at the right of the Republican emblem, certain marks, other than the cross marks prescribed by law, without making a cross mark in any of the spaces provided in said ballots for such mark; (3) that certain other ballots, marked in every respect according to law, and cast for contestant, were wrongfully rejected by the judges of election, and were not counted by them for the contestant; (4) that these errors, irregularities, and wrongful acts occurred in every election district and precinct in the county, and that, by reason thereof, between 50 and 100 illegal ballots were counted for the contestee, and between 1 and 12 legal ballots cast for the contestant were rejected and were not counted for him, being sufficient in number to change the result of the election; and (5) that the alleged errors and wrongful acts made a recount of the ballots necessary, in order to arrive at a correct conclusion as to the result of the election. The grounds assigned in support of the demurrer were: (1) That the petition was insufficient in law; (2) that the validity, fairness, accuracy, and truth of the canvass of the returns, and declaration of the result of the election, could not be put in issue by vague, general, and indefinite charges, such as those made in the petition; (3) that the contestee ought not to be required to answer any of the specifications of alleged errors or wrongful acts, because the same were altogether vague, general, and indefinite; (4) because, as the returns show upon their face that the contestee received a plurality of all the votes cast, the court was without power and jurisdiction to correct any mistake in the count, in the manner prayed in the petition; and (5) because the petition admitted a recount to be necessary, whereas the court was without jurisdiction to order a recount. The petition thus challenged, however, will be seen to contain, not only a distinct and positive averment that the contestant was duly elected to the office by a plurality of all the lawful votes cast at said election, but other equally distinct and positive specific averments as to certain described ballots wrongfully counted for the contestant, for reasons stated in the petition, and as to certain other ballots, in all respects properly marked, and being lawful and proper ballots, which were cast for the petitioner, and should have been counted for him, but were wrongfully rejected; and the petition distinctly averred that these errors and wrongful acts were sufficient in number to change the result of the election, and that they occurred in every election district and precinct of the county. We cannot doubt that these averments are sufficiently definite and precise to put in issue the fairness and accuracy of the return of the...
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