83 Md. 505 | Md. | 1896
delivered the opinion of the Court.
This appeal presents a question growing out of the repeal of Article 33 of the Code, title “ Elections,” and the re-enactment of said Article with amendments.
At the November election of 1895 George Wells and Washington G. Tuck were candidates for the office of Clerk of the Circuit Court of Anne Arundel County. Wells was declared elected, was commissioned, took possession of the office, the duties of which he has since performed. His election was contested by Tuck before the House of Delegates, which declared that Wells had not been duly elected, and thereupon ordered a new election to be held on the twenty-first of last April. The Act of 1896, ch. 202, re
At the hearing of this case counsel for both parties united in a request that because of the public importance of the issue involved we would as soon as possible announce our conclusions upon the questions involved. This we did immediately after the argument, and we will now briefly state the grounds upon which that conclusion is based.
The controlling question is whether there were such a vacancy when the appellants were appointed by the Governor on the eighth day of April, as under the Constitution
.It was urged, however, with much earnestness, that inasmuch as the House of Delegates had ordered a special election to be held on the 21st day of April, unless we should hold that the appellants could act, the mandates of the House could not be obeyed. But it is for the Legislature and not the judiciary to provide means for executing the order of the House, and having failed to do this, the order not being self-executing, although in accordance with the provisions of the Constitution, the special election cannot be held (Groome v. Gwinn, 43 Md. 572), in the absence of affirmative legislation for that purpose. But in answer to this view it was argued that the special election could be held under the Act of 1896, notwithstanding the admission that by the terms of the Constitution the appellants cannot qualify or perform any duties under that Act until the first Monday of May. It seems, however, too clear for controversy, that the Act of 1896 makes no provision whatever for holding the special election on the 21 April. This is apparent from the consideration that after its passage á new and general registration was to be had by and under which all elections were thereafter to be held, and by which the right to
The contention is that if an election has been duly ordered, and there has been a failure to provide for registration of voters to be had before such election is to be held, the election must proceed without registration. But the difficulty, as we have already pointed out, is that the officers, judges of election included, under the old law can no longer act, and there is no power given, even if the supervisors could otherwise act, to appoint judges of election under the new law until long after the special election is to be held. Unless, therefore, such election could be held without judges, without registration lists or ballot-boxes, except such as may be agreed upon by the voters, it cannot be held at all. It is enough to say that such an election has never been
Order affirmed.