Truitt v. Collins
| Decision Date | 15 January 1914 |
| Citation | 89 A. 850,122 Md. 526 |
| Parties | TRUITT v. COLLINS, Clerk of Circuit Court, et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Worcester County; Robley D. Jones and Henry L. D. Stanford, Judges.
"To be officially reported."
Petition by John H. Truitt for a writ of mandamus against Oliver D Collins, as Clerk of the Circuit Court, and another. From an order dismissing the petition, the petitioner appeals. Order reversed, and case remanded, with directions to issue writ.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Robert F. Stanton, of Baltimore (Charles O. Melvin, of Pocomoke City, on the brief), for appellant. George M. Upshur and John H. Handy, both of Snow Hill (John W. Staton, of Snow Hill, on the record), for appellees.
On August 29, 1913, John H. Truitt, a resident and voter of Worcester county, filed in the circuit court for that county a petition for a mandamus against Oliver D. Collins, the clerk of that court, and J. Samuel Price. The prayer of the petition was: "That a writ of mandamus, directed to the said Oliver D. Collins, clerk of the circuit court for Worcester county, may issue, commanding him to administer the oath of office as supervisor of elections for Worcester county to your petitioner as required by section 3 of article 33 of the Public General Laws of Maryland, and by section 6 of article 1 of the Constitution of Maryland, and your petitioner further prays that a writ of mandamus directed to the said J. Samuel Price may issue, commanding him to surrender the office of supervisor of elections for Worcester county and refrain from interfering with the said John H Truitt in the fulfillment and discharge of the duties of said office."
The court passed a nisi order upon the petition requiring the defendants to show cause on or before the 1st day of September, 1913, why the writ should not be issued as prayed. The defendants answered, and a traverse of the material allegations of the answer was filed by the petitioner, issue was joined, and the case was heard by the court by agreement of the parties. Testimony was taken, and on the 20th of October, 1913, the court dismissed the petition with costs to the defendants, and from that order John H. Truitt has brought this appeal. The facts which give rise to the legal questions presented by the record are few and undisputed.
On the 20th day of April, 1910, the Governor of Maryland, by and with the advice and consent of the Senate, appointed J Samuel Price to the position of supervisor of elections for Worcester county, "to represent the Democratic party." He qualified under that appointment, and entered upon the discharge of the duties of the office, and has, since that date, been acting as supervisor of elections for Worcester county under that appointment (never having been reappointed to the office), and has since drawn the compensation provided by law for the discharge of the duties of the office.
On the 2d day of May, 1910, J. Samuel Price was elected to the office of councilman of the municipal corporation, created by the act of 1894, c. 455, known as the "Mayor and Council of Snow Hill," and qualified as such councilman by taking the oath prescribed by that act on the 16th day of May, 1910, before the clerk of the circuit court for Worcester county. He entered upon the duties of that office received the compensation provided by law, and continued to discharge its duties until May, 1912, when he was again elected as councilman of said corporation, and again qualified for such office by taking the prescribed oath before the clerk. He acted as such councilman and drew the salary attached to the office until April 22, 1913, on which day he sent his resignation as councilman to the mayor and council of Snow Hill. This resignation was duly accepted. It is important to note that in May, 1912, John H. Blades was appointed and qualified as one of the supervisors of elections for Worcester county as the representative of the Democratic Party, and that he has ever since held that position.
On the 23d of May, 1913, during the recess of the Senate, the Governor appointed the appellant a supervisor of elections for Worcester county, "to fill the vacancy caused by the acceptance of Mr. J. Samuel Price of the office of town councilman of Snow Hill, Maryland, in said Worcester county, said acceptance being subsequent to his appointment and qualification as election supervisor of said Worcester county." This commission was received by the clerk of the circuit court for Worcester county on May 24, 1913, and two days thereafter, before the appellant had an opportunity to present himself before the clerk to take the oath of office, an injunction was issued at the suit of Price against Collins, the clerk, and Truitt, enjoining Collins, as clerk, from swearing in Truitt as a supervisor of elections, and restraining Truitt from taking the oath of office. On July 3, 1913, Truitt demurred to the whole bill, but the court did not dispose of the demurrer until August 22, 1913, on which day it sustained the demurrer, dissolved the injunction, and dismissed the bill, and on the same day the plaintiff appealed.
In an opinion filed December 11, 1913, this court affirmed the order appealed from, on the ground that a court of equity of this state had no jurisdiction to grant the relief prayed. The court further said that, if John H. Truitt were constitutionally appointed, he was not only entitled to take the oath of office, but he was entitled to succeed Price as supervisor of elections for Worcester county. But, as the questions raised were purely legal, it was held that they must be heard and determined in a court of law.
On the 23d day of August, 1913, the day following the order of the lower court dissolving the injunction and dismissing the bill, and after the appeal in that case had been taken, the Governor issued another...
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