Thom v. Cook

• Decision Date: 31 March 1910
• Citation: 77 A. 120,113 Md. 85
• Parties: THOM et al. v. COOK et al.
• Court: Maryland Court of Appeals

77 A. 120

113 Md. 85

THOM et al.

v. COOK et al.

Court of Appeals of Maryland.

March 31, 1910.

Appeal from Circuit Court, Queen Anne's County, in Equity; James A. Pearce, Philemon B. Hopper, and Wm. H. Adkins, Judges.

Bill by De Courcy W. Thorn and others against John R. Cook and others. Decree of dismissal, and complainants appeal. Dismissed.

Argued before BOYD, C. J., and BRISCOE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER, JJ.

John Pierce Bruns and Archibald H. Taylor, for appellants.

Alonzo L. Miles, for appellees.

BOYD, C. J. This is an appeal from a decree dismissing a bill in equity which sought to enjoin the appellees from printing upon the official ballot, to be used at the election to be held on November 2, 1909, the names of certain persons who had been certified to them as nominees of what was called the "People's Party" for the House of Delegates, and for sheriff and county commissioners of Queen Anne's county. The bill was filed by De Courcy W. Thorn, a candidate of the "Independent Citizens' Party" for the House of Delegates, who sued in his own behalf, as such candidate, and as a citizen, voter, and taxpayer of that county, and J. Louis Evans who sued in his own behalf as a citizen, voter, and taxpayer—both suing on behalf of the other candidates of said party, and also of all citizens, voters, and taxpayers who were entitled to vote and whose property might be affected by the election.

The defendants (appellees) constitute the board of supervisors of elections of that county. The bill alleges that on or about the 16th day of October, 1909, an alleged certificate of nomination of candidates for the abovementioned offices, purporting to be under the provisions of chapter 202 of the Acts of 1896, was filed with the defendants, as said board of supervisors. The ground relied on in the bill is that out of 300 or 400 persons who signed the certificate, less than 200 were persons who had not joined in the nomination of more than one nominee for each of said offices to be filled at said election, but that on the contrary nearly all of them had previously, directly, and personally joined in nominating candidates of the Democratic party for each and all of said offices to be filled at said election, by participating in the Democratic primaries held for that purpose, under what is known as the "Crawford County System." The bill then specifically alleges that the certificate of nomination is illegal and void, because contrary to the acts of the General Assembly of Maryland, to wit, section 44 of chapter 202 of the Acts of 1896. It doubtless meant section 44 of article 33 of the Code, which was section 40 of the above act. The portion of it especially relied on is that "no person shall join in nominating more than one nominee for each office to be filled."

We were earnestly urged by the appellants to construe that section, regardless of what disposition we might make of the case, but we do not deem it proper under the circumstances to do so. It is now purely and distinctly a moot question. The election was held on the 2d day of November, 1909, and this appeal was not even taken until December 10, 1909—over a month after the election was held, and seven weeks after the decree was passed. The persons nominated by the certificate are not parties to the cause, and no rights could be determined by us which could be enforced in these proceedings.

In Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293, the Supreme Court of the United States said: "The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law, which cannot affect the matter at issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of the lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal."

In Jones v. Montague, 194 U. S. 147, 24 Sup. Ct. 611, 48 L. Ed. 913, where there was a petition for a writ of prohibition, the court said: "But * * * the thing sought to be prohibited has been done, and cannot be undone by any order of court. The canvass has been made, certificates of election have been issued, the House of Representatives (which is the sole judge of the qualifications of its members) has admitted the parties holding the certificates to seats in that body, and any adjudication which this court might make would be only an ineffectual decision of the question whether or not these petitioners were wronged by what has been fully accomplished. Under those circumstances there is nothing but a moot case remaining, and the motion to dismiss must be sustained."

In Selden v. Montague, 104 U. S. 153, 24 Sup. Ct. 613, 48 L. Ed 915, where there was an application for an injunction, the same course was adopted. See, also, Syfer v. Spence, 103 Md. 66, 63 Atl. 256, where it was said: "There is therefore no substantial question in this case to be passed upon, and a decree to restrain the board would be nugatory. The appeal will be dismissed." Other cases in equity might be cited but we deem it unnecessary.

In Duvall v. Swann, 94 Md. 608, 51 Atl. 617, which was an application for a mandamus against supervisors of elections to require them to treat a certificate of nomination as insufficient and void, and to omit the names of all persons nominated by it from the official ballot, this court was asked to give its construction of the provisions of the election laws, which authorize and regulate nominations of this kind, but Judge Jones, speaking for the court, said: "The names of the persons who were placed in nomination to be voted for at the late election by the certificate of nomination in question were printed upon the official ballot, and the persons were presumably voted for at the election with what results as to themselves or effect upon others whose names were also on the ballot to be voted, the court is not informed. If the court should here indicate its opinion...