Moore v. Bay

• Decision Date: 10 December 1925
• Docket Number: 39.
• Citation: 131 A. 459,149 Md. 286
• Parties: MOORE ET AL. v. BAY ET AL.
• Court: Maryland Court of Appeals

131 A. 459

149 Md. 286

MOORE ET AL. v. BAY ET AL.

No. 39.

Court of Appeals of Maryland

December 10, 1925

Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.

"To be officially reported."

Petition for writ of mandamus by James H. Bay and another against Joseph H. Moore and others, members of the Board of Supervisors of the Election of the Mayor and City Council of Havre de Grace, to compel a hearing and determination of questions presented by petition attacking election as a nullity. From an order directing writ to issue, defendants appeal. Order reversed, and petition dismissed.

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

Edwin H. W. Harlan, of Bel Air, and Frederick Lee Cobourn, of Havre de Grace, for appellants.

A Freeborn Brown, of Havre de Grace, and Shirley Carter, of Baltimore, for appellees.

PARKE J.

On May 4, 1925, a municipal election was held in Havre de Grace for the selection of its mayor and three members of the city council. There was a contest, and 918 votes were cast. The canvass and report of the municipal supervisors of election certified that George T. Pennington had been elected mayor and Harry Lawder, Jr., Jacob Davis, and Harry Atkinson had been elected councilmen; and these successful candidates accordingly qualified and assumed the discharge of their official duties on May 18th. The majorities of those elected ranged from 57 to 95 votes. Two of the defeated candidates for the city council, James H. Bay and Edgar M. Geathers, who possessed all the qualifications of voters and of nominees for the city council, determined to contest the election of the mayor and three councilmen, and, for that purpose, filed on May 25th with Joseph H. Moore, Robert Seneca, and Frank Poughkeepsie, constituting the board of supervisors of election of the mayor and city council of Havre de Grace, a petition which assailed the municipal election as void and of no effect, and prayed that the board hear and determine the grounds of this attack.

The first reason assigned was the general one that "about 170 persons voted" who were not legally qualified to vote because they did not have "all of the 5 qualifications required by and provided in the charter," which were an age of more than 21 years, a residence in Havre de Grace of not less than one year next preceding a municipal election, an assessment on the tax books of the city, on the 1st day of January next preceding the election, of at least $200 worth of real or personal property, the payment one month before the day of the election of the municipal taxes levied for the preceding year on not less than this amount, and a registration among the registered voters of the city. The other and particular reasons specified were that "about 170 persons voted," who had not paid, at least 30 days before the day of the election, the city taxes on their property assessed to them, or who did not own, and every one of whom was not assessed on or before January 1, 1925, on the municipal books with real and personal property in the minimum amount of $200, or whose names were fraudulently and deceitfully entered on the tax levy book of the city as having seasonably paid the current taxes to the treasurer of the city, through which fraud and deceit the mayor and city council failed to strike their names off of the list of qualified registered voters, and the said "about 170 persons" were thereby enabled unlawfully to vote at the election. No intimation is given who made these entries or who was responsible for them.

On the day of the receipt of this petition the board of supervisors of election notified the protestants that the hearing in a municipal election contest must be conducted in accordance with the rules and regulations prescribed by ordinance of the mayor and city council, and that, inasmuch as no ordinance of the kind had been passed, the board would request the city council to pass the ordinance, and, when it was passed, the board would arrange for a hearing.

This reply was not satisfactory, and, on June 5th, the appellees James H. Bay and Edgar M. Geathers filed a petition against the appellant the board of supervisors of election of the mayor and city council of Havre de Grace for the issuance of a writ of mandamus forthwith to compel a hearing and determination of the questions presented by the petition, which attacked the election as a nullity upon the grounds above stated. This petition was answered, and the answer was demurred to, and the demurrer was overruled. In its order directing the writ to issue, the court specified the notice to be given to the successful candidates and the contestants, fixed the day, time, and place of the hearing, and limited the period within which the contest should be conducted, both in the event of an appeal and of no appeal from its order.

No testimony was taken. The answer of the respondents did not deny the averments of fact in the petition. The uncontroverted allegations of the petition and the facts set forth in the answer present a question of law which will determine the propriety of the issuance of the writ of mandamus in this case. Price v. Ashburn, 122 Md. 520, 89 A. 410; Good v. Commissioners, 137 Md. 198, 112 A. 294, 13 A. L. R. 1164; Hooper v. Farnen, 85 Md. 587, 37 A. 430.

The material facts have been set forth, and on these facts a reversal is sought on the main grounds: (a) That the board could not hear and determine the proposed contest because the statute conferred "jurisdiction to hear and determine, under such rules and regulations as the mayor and city council may by ordinance prescribe, all contested city elections," and no such ordinance had ever been passed although the provision originated in the Acts of 1902, chapter 127; (b) that the petition did not present an election contest within the meaning of the charter; (c) that the qualifications of the voters on the registration list were solely for the city clerk as the officer of registration and for the mayor and city councilmen as a board of revision and review, with a right of appeal therefrom to the circuit court for Harford county; and, finally, (d) that, if the board of election supervisors did have jurisdiction of the matter set forth in the petition, the court's order for the mandamus was defective, because it sought not only to compel a hearing and determination of the contest, but also to control the discretion of the board in the method of the exercise of the power.

It is our conclusion that the effect to be given the registration list will control the decision in this case, and we shall therefore proceed to consider the provisions of the municipal charter bearing on that question.

In pursuance of the statutory requirement, the supervisors of election furnished the city clerk with registration books, which it is the duty of the clerk to protect and keep safe. A municipal election is held biennially on the first Monday of May. On the second Monday and Tuesday in April of the year in which the municipal election is held the city clerk sits at the council chambers between the hours of 9 o'clock a. m., and 7 o'clock p. m., for the purpose of registering the legally qualified voters of the city.

It is the function of the clerk to enter in alphabetical order upon the registry book the name of every person appearing before him at the times specified and requesting to be registered, provided that, in his capacity as register, the clerk shall be first satisfied by the applicant's oath, or otherwise, that he is a male citizen of the United States above the age of 21 years, who has resided in the city of Havre de Grace not less than one year preceding a municipal election, who was, on the 1st day of January next preceding the election, assessed on the tax books of the city with at least $200 worth of real or personal property, and who has paid the tax levied for the preceding year on not less than the aforesaid amount one month before the day of the election; but, if the applicant is an active member of the local fire department, he is exempt from taxation to the extent of $1,000, yet is not thereby deprived of the franchise to vote in city elections, if he has all the other requirements of a qualified voter. Acts of 1920, c. 634, pp. 1229, 1230.

The clerk is given the power to administer the oath; and, if convinced of the eligibility of the applicant, by the proof must enroll his name upon the registry. But his action is not final, because after the registration is closed the mayor and city council sit on the following Monday as a revisory board, whose duty it is to strike from the...