Rasin v. Leaverton

• Decision Date: 29 October 1942
• Docket Number: 80,81.
• Citation: 28 A.2d 612,181 Md. 91
• Parties: RASIN v. LEAVERTON et al., Board of Supervisors of Elections. LEAVERTON et al., Board of Supervisors of Elections v. RASIN et al.
• Court: Maryland Court of Appeals

28 A.2d 612

181 Md. 91

RASIN v. LEAVERTON et al., Board of Supervisors of Elections.

LEAVERTON et al., Board of Supervisors of Elections v. RASIN et al.

Nos. 80, 81.

Court of Appeals of Maryland

October 29, 1942

Appeal from Circuit Court, Kent County; J. Owen Knotts and William R. Horney, Judges.

Proceedings by A. Parks Rasin, Jr., for a writ of mandamus to compel Howard S. Leaverton and others, constituting the Board of Supervisors of Elections for Kent County, to place petitioner's name on election ballots as a candidate for the office of state's attorney, and by A. Parks Rasin Jr., and others for a writ of mandamus to compel the board to place petitioners' names on the ballots as nominees of the Republican State Central Committee for various local offices. From an order dismissing the first petition petitioner appeals, and from an order granting the writ in the second case, the board appeals.

Affirmed except as to named petitioner in the second case.

Simon E. Sobeloff, of Baltimore, for Rasin and others.

Edward A. Smith, of Baltimore, for Leaverton and others.

Before BOND, C.J., and SLOAN, DELAPLAINE, MARBURY, and GARSON, JJ

BOND Chief Judge.

To avoid delay in the decision of questions in these cases which need to be settled before the election on November 3d of this year, the orders appealed from were affirmed by orders of this court passed as soon as the court reached its conclusions, and the statement of reasons for those conclusions was deferred until an opinion at length could be prepared. The opinion now follows.

The two cases, argued as one, arose from controversies over the placing of names of candidates for election upon the ballots in Kent County. The lower court denied the petition of Mr Rasin for the writ of mandamus to compel the Board of Supervisors of Elections for the county to place his name on the ballot as a candidate for the office of State's Attorney, because he was found to lack the constitutional qualification of two years' residence in the county. 'No person shall be eligible to the office of State's Attorney', reads section 10 of Article V of the Constitution, 'who has not resided for at least two years in the county * * * in which he may be elected.' And from the dismissal of his petition Mr. Rasin appeals in the first case. In the second case the lower court ordered the writ issued to compel placing on the ballots the names of candidates nominated by the Republican State Central Committee for the various local offices, under Article 33, section 94 of the Code, after a previous effort at nomination had failed because of the use of a defective form of certificate.

The Board appeals in that case.

The facts respecting Mr. Rasin's residence are that he had been born in the county, and in the year 1932 had gone to Baltimore City, and lived there, primarily to earn money to educate himself, and to receive his education. In 1936 his name was stricken from the registration books in the county, and in 1938 and 1940 he registered and voted in the city. Necessarily in registering he took an oath that he was a resident of Baltimore City. Code, Art. 33, § 19. During all this time he visited Kent County with frequency, and his intention, he states, was to retain his residence there; in Kent County he paid taxes, kept clothing and other possessions, and had the title to his automobile issued. He was admitted to the bar of the State in March of 1941, and he opened an office in Chestertown, Kent County, in August, 1941, and lived there subsequently. In July of 1942, he obtained a removal certificate from the Supervisors of Elections of Baltimore City for registration in Kent County. Code, Art. 33, § 54.

There is no escaping the fact that the petitioner lived in Baltimore City during nine years before August, 1941, and meanwhile had at most an intention to return to the county only at some indefinite future time. He cherished the idea that he would retain his connection with the county, but he seems not to have continued his residence there. Lancaster v. Herbert, 74 Md. 334, 340, 22 A. 139. The requirement in the Constitution of residence for political or voting purposes is one of a place of fixed, present domicile. Howard v. Skinner, 87 Md. 556, 559, 40 A. 379, 40 L.R.A. 753; Thomas v. Warner, 83 Md. 14, 20, 34 A. 830; Wagner v. Scurlock, 166 Md. 284, 291, 170 A. 539. Uninterrupted dwelling in the city for nine years would alone seem much more than a temporary sojourn there, or a temporary absence from home. It was not, within the ordinary meaning of the constitutional phrase, residing in the county. And his registering and voting in Baltimore City, while not in itself conclusive evidence of residence there (Wagner v. Scurlock, supra), is at least strongly persuasive and confirmatory, especially as the registrant must have taken an oath that he was in fact a resident. The oath is not a meaningless form. Harrison v. Harrison, 117 Md. 607, 613, 84 A. 57; Wagner v. Scurlock, supra. For these reasons this court has concurred with the trial court in the conclusion that the petitioner would not, at the time of the election, possess the qualification of having resided for at least two years in the county.

He construes the constitutional requirement to be, however, not that he must have resided in the county two years prior to the time of election, but that he must have resided in the county so long prior to the time of taking office, that the eligibility specified is an eligibility to hold office rather than to be elected to it, and that consequently he may be elected now and defer entering upon the office until his residence in the county has been prolonged to two years. This contention finds support in decisions in some jurisdictions. 88 A.L.R. 813. But it has not been the construction adopted in Maryland. In the early General Court case of Hatcheson v. Tilden, 4 Har. & McH. 279, a constitutional requirement that 'no person to be eligible to the office of Sheriff for a county, but an inhabitant of the said county * * * having real and personal property in the State above the value of 1,000 pounds current money,' Const. 1776, XLII, was held to mean that he must have it when the votes are cast. At that time the voting continued over three days, and the candidate who was given the largest number of votes obtained the property only by the third day; and it was held that he was required to have it at the time he was voted for, and that 'the plaintiff can only be entitled to such votes as were given after he received the necessary qualifications, all votes in his favor previous being illegal and void.' That case was referred to as an authority as lately as 1910, in Hummelshime v. Hirsch, 114 Md. 39, 55, 79 A. 38. Hummelshime had received a majority of votes at an election of members of the City Council of Cumberland, but was, contrary to a requirement in the city charter, in arrears in payment of his taxes until late on the day of the election, and Hirsch applied for the writ of mandamus to try his title to office. It was held that the candidate was disqualified, the court considering that the obvious...