White v. Board of Sup'rs of Election of Montgomery County (State Report Title: White v. Laird)

• Decision Date: 02 December 1915
• Docket Number: 108.
• Parties: WHITE v. BOARD OF SUP'RS OF ELECTION OF MONTGOMERY COUNTY et al. [*]
• Court: Maryland Court of Appeals

96 A. 318

127 Md. 120

WHITE v. BOARD OF SUP'RS OF ELECTION OF MONTGOMERY COUNTY et al. ^[*]

No. 108.

Court of Appeals of Maryland

December 2, 1915

Appeal from Circuit Court, Montgomery County; Hammond Urner and Glenn H. Worthington, Judges.

Mandamus by J. Furr White against Philip D. Laird and others Supervisors of Montgomery County. From an order sustaining demurrer to and dismissing the petition, petitioner appeals. Affirmed.

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

T Howard Duckett, of Washington, D. C. (Marion Duckett, of Washington, D. C., on the brief), for appellant.

Charles W. Prettyman and Thomas Dawson, both of Rockville (Talbott & Prettyman, of Rockville, and J. Dawson Williams, of Washington, D. C., on the brief), for appellees.

PER CURIAM.

The appeal in the above-entitled cause coming on to be heard; and the same having been argued and submitted by the counsel for the respective parties; and this court being of opinion that the supervisors of election of Montgomery county acted in the discharge of the powers conferred on them by statute; and there being no sufficient reason shown in this record to justify the court in interfering with the exercise of the judgment and discretion reposed in the supervisors of election of said county, by statute, as will be more fully set forth in an opinion hereafter to be filed: It is by the Court of Appeals of Maryland, this 21st day of October, 1915 ordered that the order of the circuit court for Montgomery county, passed on the 13th day of October, 1915, dismissing the petition for a mandamus, be and the same is hereby affirmed.

Order affirmed, with costs to the appellees.

BOYD C.J.

The appellant and the appellee Philip D. Laird were candidates for nomination for the House of Delegates from Montgomery county on the Democratic ticket at the primary election held in that county on the 14th of September, 1915. The board of canvassers certified that the appellant received 1,946 votes and Mr. Laird 1,955 votes; three other candidates having more votes than they, and the contest being between them for the fourth place, as that county was entitled to four delegates. The appellant filed a petition with the supervisors of elections, asking that the ballots cast be recounted and recanvassed, and on September 24, 1915, the supervisors sitting for the purpose of recounting and reviewing said ballots and acting under section 199B of article 33 of the Code, proceeded to recount and recanvass the ballots cast at said primary election for the appellant and the appellee Laird, and they determined that Mr. Laird had a majority of three votes. The appellant filed a petition for a mandamus to compel the supervisors of elections to reject 120 ballots which they counted and to count 4 which they rejected, and to declare the result of the election accordingly. A demurrer was filed to the answer of the supervisors, and a motion to quash part and a demurrer to the other parts of the answer of Philip D. Laird were filed. In the answer of Mr. Laird there was a demurrer to the petition, questioning the authority of the court to grant a mandamus upon the case stated in the petition. The lower court passed an order sustaining the demurrer of Mr. Laird and dismissing the petition. From that order this appeal was taken.

In the case of Foxwell v. Beck, 117 Md. 1, 82 A. 657, it was decided that the primary election law did not provide for a contest over a nomination. That case was decided November 22, 1911, and by an act approved January 10, 1912, provision was made for an appeal to the supervisors of elections, and for a recanvass and recount of the ballots cast. Section 160Y, c. 2, of Laws of 1912, being 199B of article 33 of Code, vol. 3.

The two acts of the supervisors relied on in the petition as the ground for the mandamus are: (1) That the supervisors counted 120 ballots (64 of which were marked for Laird and 56 for White) which were not marked with a black lead pencil, but with an indelible pencil; and (2) that they rejected four ballots not defective upon their face, three being for petitioner and the other blank as to them.

The lower court based its order on the ground that:

"The authority conferred by the law upon the board of supervisors for conducting and determining such appeals as the one instituted by the present petitioner clearly involves the exercise of judgment, and is consequently not a proper subject for revision or regulation in a mandamus proceeding."

The statute (section 199B of article 33) gives:

The right of "appeal from and review of the action and decision of the judges of election in counting ballots and for a recanvass and recount of the ballots cast," etc., and the supervisors are "given jurisdiction and power to hear and determine said appeals; to review and correct the action of the judges of election in their respective jurisdiction and to recanvass, recount and certify said result of said primary election. And for all the purposes of said review, recount, recanvass, etc., the said supervisors of elections shall act and be judges of election for counting said ballots, acting as such in the premises within their respective geographical jurisdictions." It further provides that the supervisors shall "produce them the ballot boxes, returns, tally sheets and paraphernalia of said election and shall proceed forthwith in a summary way without answer, pleading or technicality, and without requiring any evidence to be taken or proof submitted, to review the actions of the judges of elections and recount the ballots in the precincts named in said petition," etc., and "said review, recount and recanvass shall be had with all possible expedition and dispatch and in preference to all other business under such mode of procedure as the supervisors of elections shall prescribe by means of tellers appointed by them on the recommendation of and with equal representation to the opposing candidates. The said supervisors to pass upon and decide whether any ballot contested by the tellers for either side shall be rejected or counted."

In section 185 of article 33 there are provisions governing the judges of elections in reference to the count, and it is provided, amongst other things, that:

"The intention, so far as the same may be ascertained from each ballot itself, shall, in the absence of any unlawful or fraudulent mark or device thereon or enclosed therewith or on the envelope containing the same, prevail."

There would seem to be no room to doubt that the supervisors are called upon and required to exercise judgment and discretion in the discharge of their duties and act in at least what is called a quasi judicial capacity. Any one who has had experience in contested elections in courts knows how difficult it often is to determine whether a particular ballot shall or shall not be counted under existing statutes--sometimes requiring the closest scrutiny of the ballots and marks, and demanding the very best judgment the court is capable of exercising. Other references to statutes might be made to show that the duties of the supervisors are far from being merely ministerial. In order to grant the mandamus, the court would have been compelled to substitute its judgment for that of the supervisors, as to whether the 120 ballots should be rejected, or the four ballots counted. The supervisors saw and examined them, in the presence of the tellers and counsel of the parties, and they were required by the statute "to pass upon and decide whether any ballot contested by the tellers for either side shall be rejected or counted."

It may be well to more specifically state the questions the supervisors were called upon to decide, as shown by the pleadings. We will first consider the 120 ballots. The petition alleges:

"That at said session and during all of said recount and recanvass, your petitioner, by counsel, objected to certain ballots being counted to the number of 120, 64 of which were marked for the said Laird, and 56 of which were marked for your petitioner, upon the ground that said ballots so protested were not marked as required by law with a black lead pencil, said ballots being marked otherwise legally for the said Laird or for your petitioner with a pencil other than a black lead pencil, as required by law, namely, with indelible pencil."

The respondent Laird, in his answer, states that:

"There were a number of ballots protested by the tellers both for the contestant and this respondent, for various reasons, and that in each case the protest was heard and determined by the board of election supervisors, as by law they were required to do, and said ballots so contested were counted or rejected in accordance with the findings of said board in each particular case. He admits that in some instances the reason given for the protest on the part of the tellers for the said J. Furr White, contestant, was that said ballots had been marked by an indelible pencil; but this respondent does not admit that the marking of said ballots was so done, or that that was a material or proper reason for the rejection of said ballots; but this respondent does not know the number of ballots contested for this reason, nor how many of them were cast for either of the parties to said contest, nor does he esteem it a material fact, as the board of supervisors had by law, in each instance, the right and power to decide as to whether or not such votes should be counted and did in fact, upon each of said protests, decide the questions so presented to them."

The supervisors in their answer:

"Admit that counsel for petitioner objected to certain ballots being counted (the exact number of which is unknown) upon the ground 'that said ballots were

...