Price v. Ashburn
| Decision Date | 15 January 1914 |
| Citation | 89 A. 410,122 Md. 514 |
| Parties | PRICE et al., Sup'rs of Elections, v. ASHBURN. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Worcester County; Jno. R. Pattison Robley D. Jones, and Henry L. D. Stanford, Judges.
"To be officially reported."
Mandamus by Quince Ashburn against J. Samuel Price and others Supervisors of Election for Worcester County, acting as Canvassers of Election, to compel them to canvass the votes cast for State Senator in the Eighth Election District of the county at the November 4, 1913, election and to declare the result. From an order sustaining petitioner's demurrer to respondents' answer and directing the issuance of the writ, respondents appeal. Affirmed.
Argued before BRISCOE, BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ.
Alonzo L. Miles, of Salisbury, and George M. Upshur, of Snow Hill (John W. Staton, of Snow Hill, on the brief), for appellants. William L. Marbury, of Baltimore (Melvin & Handy, of Snow Hill, on the brief), for appellee.
This is an appeal from an order of the circuit court for Worcester county, dated the 2d day of December, 1913, sustaining the petitioner's demurrer to the respondents' answer, in a mandamus proceeding, and ordering the writ to issue directing the appellants, the respondents below, as a board of canvassers of election for Worcester county, to forthwith convene, and to canvass the votes cast for state senator in the Eighth election district of that county, held on November 4, 1913, and to declare the result.
The order passed by the court in the case, and appealed against, is as follows: "In the above case it is ordered this 2d day of December, 1913, by the circuit court for Worcester county, that the demurrer of the petitioner to the respondents' answer filed herein be, and the same is hereby, sustained; and, upon the fact stated in the relator's petition and admitted in the respondents' answer, it is further ordered that the writ of mandamus issue forthwith commanding the respondents to convene and to canvass the votes for state senator in the Eighth election district of said county as shown by the original statements or returns and tally sheets thereof mentioned in the petition and answer, and to add up the votes, together with the votes, for state senator in all other districts of the county, as shown by the original statements or returns and tally sheets of the election held on November 4, 1913, in the county, and to make abstracts or statements of the same, and to transmit the last-named statements, so to be made by the respondents attested by the signature of their chairman and secretary, to the clerk of the circuit court for that county."
The petition avers that the appellee, a citizen and voter duly qualified of Worcester county, Md., was a candidate for the office of state senator for that county, at an election held on the 4th day of November, 1913; that the election was duly held in the Eighth election district of that county on that date, and all the requirements of the election law of the state were complied with by the judges and clerks in the holding of the election, as will appear by the returns and certificates made and returned as the law required; that two of the judges and one of the clerks of the Eighth election district refused to sign the returns and certificates at the close of the election in that district upon certain grounds, and for certain reasons, stated in a return made by them; and that copies of such written statement were sent up with the returns to the board of canvassers as required by law, and were received by them; and that the board of canvassers refused to canvass the returns as thus certified and sent to them. It further avers that the petitioner was voted for at the election for the office of state senator of Worcester county, and received a large majority of the votes cast in the district, and that by casting out and rejecting the vote of the district the result of the entire vote of the county was so changed as to defeat him for the office of senator; whereas, if the vote of this district had been counted, he would have been elected. The petition then avers that, under the law and the facts as stated, it was the duty of the board of canvassers to reconvene, canvass the returns, and declare the result of the votes cast in that district for state senator, and prayed for a rule upon the canvassing board, the defendants, to show cause why a writ of mandamus should not be granted.
The board of canvassers answered the petition on the 18th of November, 1913, and in its answer they set out at length the several facts relied upon in reply, and the reasons given for not canvassing the returns. The answer, however, nowhere denies or controverts the averments of fact, set out by the petition, but substantially admits them as true as alleged. 26 Cyc. 453. By the second paragraph of the answer, it is averred that after the election held in the Eighth election district of Worcester county, Md., on the 4th day of November, 1913, two of the judges and one of the clerks of the election district declined and refused to sign the returns of the election in the election district, and stated their reasons therefor in writing, a copy whereof, signed by themselves, was inclosed with each return; and two of the judges and one of the clerks of the election district declined and refused to sign the set of tallies of said election in the election district and stated their reasons therefor in writing, a copy whereof, signed by themselves, was inclosed with said tally sheets; and that the original statements or returns and the tally sheets were duly delivered to these respondents organized and sitting as a board of canvassers, on the Thursday next following the election, and that, upon opening all the envelopes containing the returns and tally sheets, these respondents found that the returns and tally sheets were not signed by two of the judges and one of the clerks of the election, and inclosed with each of the returns and each of the tally sheets was a paper signed by the two judges and the one clerk, giving their reasons for not signing the returns and tally sheets, which written statement of reasons was sealed by these respondents and is in their custody, and a copy of the returns is filed as Exhibit No. 1. It is as follows: The first, third, fourth, and fifth paragraphs of the answer, in view of the conclusion we have reached, become immaterial, and need not be stated. By the sixth paragraph of the answer it is further averred that at a meeting of the board of canvassers the following resolution was on motion adopted by a majority vote of the board: "Resolved: That the board of canvassers of Worcester county, Maryland, do refuse to canvass the returns and tally sheets of the Eighth election district of Worcester county, of the election held on the fourth day of November, 1913, in the county, because the same are not in conformity with the law, are illegal and invalid, and that the same be and are hereby rejected." By the seventh paragraph of the answer, it is stated that by the term "refuse to canvass," used in the resolution, these respondents meant that they refused to add up and include in the certificate of election the alleged returns from the Eighth election district, and that as a matter of fact they did examine and consider the statements from the district and rejected the district because of irregularities in the alleged returns, in that they were not signed by two of the judges and one of the clerks of the district and because they were therefore not in conformity with law.
The appellee demurred to this answer, and on this state of pleadings the case was heard. The court below sustained the demurrer, and directed the writ to issue.
The right to a speedy hearing and decision of the case in this court upon the transmission of the record, or on the original papers, is specially provided for by the statute. By section 86 of article 33 of the Code, it is provided that there shall be the same right of appeal as in other mandamus cases, but such appeal shall be taken within five days from the date of the decision complained of, and shall be heard and decided by the Court of Appeals as soon after the transmission of the record as possible, and the testimony taken in such cases shall be sent up to the Court of Appeals as part of the record. But apart from this statute, section 44 of article 5 of the Code also provides that from every judgment or order granting or refusing a peremptory mandamus in any case hereafter brought involving the title or right to a public office either party shall have a right to appeal, and on such appeal the clerk of the court shall forthwith transmit the original papers, including the judgment or order to the Court of Appeals, and said court shall immediately hear...
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