57 A. 628 | Md. | 1904
By the Charter of the City of Annapolis, the Mayor and City Council have power "to provide for the appointment and define the duties" of various officers, including that of Market Master. By Art. 29, § 1 of the City Code, it is enacted, that the Market Master shall "be chosen by ballot," on the second Monday of July in each and every year, to serve until the second Monday in April next ensuing, or, "in case of failure on the part of the corporation then to elect, until another election shall take place thereafter."
On the 20th July, 1903, the Mayor, Counsellor and Aldermen, *105 constituting the City Council, and numbering in all eight members, met, and by resolution, regularly offered and adopted, agreed to proceed at once to elect officers of the city corporation. The appellant and the appellee were thereupon put in nomination for Market Master; and upon a vote by ballot being taken, R.H. Strange received four votes, J.H. Murdoch received three votes, and there was one blank ballot. The Mayor thereupon declared there was no election. On July 23rd, 1903, and again on 30th July, the same persons were balloted for, with like results; that is, at each of the ballotings, Murdoch received three votes, Strange four, and there was one blank ballot, and on each occasion the Mayor declared there had been no election.
The main question raised by these proceedings is presented by the contention of the appellant that by the proof taken and set forth in the record, there exists a usage and practice of the Corporation of Annapolis whereby a blank ballot shall not be counted for any of the persons voted for in the appointment of the city officials by the corporate electors; but shall be counted as a ballot in estimating the total number of votes cast and in determining whether any person voted for has received a majority. If it be admitted, for the sake of the argument, that a rule or by-law of a corporation may be established by proof of custom long maintained and acquiesced in by its members, yet it is clear, (Miller v. Eschbach,
The municipal body may make such rules, as conform to or arenot in conflict with the essentials of law making; but such rules must not be in derogation of the law of the land, whether common law or statutory. Cooley Const. Lim. (6 ed.), 187;Heiskell v. Mayor, c.,
The matter then amounts to this, is it in accordance with the principles of the common law, that the blank ballot in a case like this, should be counted in estimating the total number of votes cast, and therefrom determining, whether any person voted for has received a majority.
The "blank ballot," referred to in these proceedings, was a blank piece of paper, having on it no words or marks of any kind whereby the meaning and intent of the person who deposited it, may be ascertained. To denominate such a paper a ballot, would seem to miscall it. It is in fact nothing; it cannot *108
be expressive of any intention; no rule or method of interpretation can relieve it of its dumbness. It no more indicates a preference for one of the candidates, than for another. If there is but one candidate, there is nothing to indicate assent to the one; nor where there are two or more candidates, as a vote of assent or dissent, as to either candidate. In the case of Yulee v. Mallory, 1 Bart. Election cases, 608, the report of the committee referred to the "blank ballots as beyond doubt nullities," and in Stockton's case,
they were regarded only because of a rule of the State Legislatures that cognizance should be taken of such ballots. It is true, that in some jurisdictions, it has been held, that "a blank vote cannot be in a technical sense a ballot, but is nevertheless an act of negation — affirmative in showing that another voter acted, and negative in determining the majority,"Lawrence v. Ingersoll, 88 Tenn, 88. In this case C.J. TURNEY dissented; holding that "a blank vote was only an expression of indifference;" and in this opinion he is supported by much authority, and it seems to us by principle. A ballot is a form of expression for a candidate to be voted for. If the paper falls short of expressing such a wish, it is defective; certainly, if it expresses nothing, it lacks all of the essential elements of a ballot. If it contains the name of a man, who is known to the voter to be ineligible the ballot cannot be counted, because the object of ballot then would be not to elect, but to prevent an election. People v. Clute,
It is not easy to perceive how a blank ballot can be given any significance. If it expresses nothing and therefore cannot be counted for or against either of the candidates voted for, how can it serve to indicate assent to the person receiving a plurality of the other votes cast, or of dissent? How can a blank piece of paper, be construed to express an intent of any kind? If it be regarded as an expression of dissent, it may be asked to what does he dissent? Is it to the holding of the election? And if this may be so, how can the person who deposits it, by a mere arbitrary interpretation of the *109 act of placing a blank piece of paper in a ballot-box, be permitted to defeat the votes of electors, who are endeavoring to perform an important public duty. "As all electors have the same right, it follows, that each of them is bound to exercise his particular right, in such manner, as to allow to every other elector, the free and full exercise of the same right on his part; which would not be the case if one elector had the power by means of a blank, to defeat the vote of another for a particular candidate, without himself voting for anybody." Cushing's Law ofLegislative Assemblies, (1874), sec. 114.
There are some cases when an effective action of the legislative body requires a majority of all the members, or of all the members present. In such a condition of legal requirement, the question of the significance of a blank ballot cannot arise; for there must always be at least the concurrence, of a fixed number of votes. In Yulee v. Mallory, it required a majority of all the members to elect. In People v. Conklin, 7 Hun. 188, the statute rendered indispensable a majority of the trustees present. The Court said in that case referring to the blank ballot "if a presumption is to be entertained on the subject it is just as reasonable that it should be indulged in the defendant's as in the relator's favor." In Swartz v.Wickersham, 66 Pa. St. 134, a majority of the whole number of directors present must concur. These and like cases, do not throw much light upon the subject of the significance to be attached to a blank ballot.
It would seem therefore, impossible and if not so, at least not reasonable, to make any presumptions with reference to the meaning of the voter who deposits a blank ballot. It is a safer principle, it seems to us, and one more in harmony with sound reasoning, to hold that the voter who deposits a blank piece of paper in the ballot-box throws away his vote; — because the paper he has voted is not expressive of any meaning whatever and therefore utterly null and void. It is true, that a blank ballot may sometimes operate as a vote of assent; not that any presumption as to its meaning may properly be drawn, but because, being ineffective for every purpose, the *110 person casting it, has left unopposed the votes of the other electors, and thereby, it may be said, assents to the election of the candidate, who receives a majority of votes. Grant onCorporations, 204 et seq.; Willcock on Mun. Corp., sec. 546;Cooley Const. Lim., 771, (6 ed.); where it is said: "A blank ballot being of such a character, and not to be counted, it follows, that a candidate may be chosen without receiving a majority or plurality of votes of those who actually participate in the election."
In this State it is settled that in elections where there is an indefinite number of voters, "those absenting themselves and those who being present abstain from voting, are considered as acquiescing in the result declared by a majority of those actually voting, even though, in point of fact, but a minority of those entitled to vote, really do vote." Oswald v. Walker,
To constitute a corporate assembly at common law, there must always be present, a quorum, consisting of at least a majority of the number of all the members, and no valid act can be done without a majority of a quorum. Dillon (supra), in his work on corporations says: "The common law rules as to quorums and majorities, established with reference to corporate bodies consisting of a definite number of corporators, have also been applied *111 to the common council, or select governing body of our municipal corporations, where the matter is not specially regulated by the charter or statute. Thus, — if the body consist of twelve common councilmen, seven is the least number that can constitute a valid meeting, though four of the seven (the seven being duly assembled and present), may act,. It was held that the legal effect of their refusal to vote while remaining present, was an acquiescence in the action of those voting." (See reference in note.)
It was contended, however, by the counsel for the appellant that there was something in conflict with this statement, in the following citation from the same work, sec. 279. "So if a board of village trustees consists of five members and all or four, are present, two can do no valid act, even though the others are disqualified by interest from voting, and therefore omit or decline to vote; their assenting to the measure voted for by the two will not make it valid. If three only were present they would constitute a quorum, then the votes of two, being a majority of the quorum would be valid; certainly so when the three were all competent to act." This was regarded in Lawrence v.Ingersoll, 88 Tennessee, 65, as an authority for counting a blank ballot for the purpose of showing that no person received a legal majority. But in the case of The Rushville Gas Co. v.The City of Rushville,
It is difficult to assign any sufficient reason why this rule concededly applicable to indefinite assemblies, should not apply also to definite. Upon what principle should a member of the Council of Annapolis by simply depositing a blank ballot *112 be enabled to prevent others from acting, who are willing to perform their duty of making an election? As was said in Granton Corporations, p. 204, et seq., the elector is present as an elector, his presence counts as such to make up the requisite number of electors where a certain number is necessary, but he attends only as an elector to perform the duty which is cast on him by the franchise he enjoys as an elector; he can speak only in a particular language; he can only do certain acts; any other language means nothing; any other act is merely null; his duty is to assist in making an election. If he dissents from the choice of A who is qualified, he must say so by voting for some other who is qualified; he has no right to employ his franchise merely in preventing an election, and so defeating the object for which he is empowered and bound to attend the elective assembly of the corporation."
The overwhelming weight of authority is in favor of these views. They have been applied at least as far back as the leading case of Oldknow v. Wainwright, 2 Burrows, 1017. The election there, was of a town clerk by the Mayor, Aldermen and Common Council, the entire number of electors being twenty-five, twenty-one assembled, nine of whom voted for the candidate, but twelve did not vote at all. LORD MANSFIELD said: "Whenever electors are present and don't vote at all, they virtually acquiesce in the election made by those who do." This case and other English cases were reviewed in Gosling v. Veley, 4 H. of L. Cases, 679, and the doctrine of LORD MANSFIELD inOldknow's case was approved. The following were cases of elections by definite assemblies, where the same principles were affirmed. State v. Parker, 32 N.J. Law, 341; Wheeler v.Commonwealth,
We are therefore of opinion, that the appellee should have been declared elected. *113
The point was also raised that the appellee did not file or tender a bond within ten days after his alleged election on 20th July, and therefore his election is of no effect, and was vacated under the provisions of sec. 5 of Art. 29 and sec. 17 of Art. 26 of the City Code, which requires the Market Master to give bond,c., to be approved by the Mayor, c., within ten days after his election." The facts show that the Council by its presiding officer declared the appellee not elected — and thereby rendered the filing a bond impossible so long as that position was maintained. Subsequently, upon the Circuit Court of Anne Arundel County, deciding that Louis S. Clayton, whose case was substantially like that of the appellee, was duly elected, the Council so far retracted its position, that it became and was willing to accept the bond of the appellee. The appellee thereupon presented his bond to the Council, and it was approved by them.
It must be noted, that no objection is now made to the form or sufficiency of the bond, but that it was not presented in time. It is not within the case of Hecht v. Coale,
Here the question is, did the appellee by failing to present his bond within ten days after the 20th July thereby forfeit his claim to the office of Market Master.
First. It may be seriously questioned whether the appellee after he had been declared not elected, erroneously it is true, by the presiding officer of the Council, was in a position in which he could make any effective tender of his bond, until the Council or some Court having authority in the matter, should decide that he had been elected; and the ten days fixed for the filing of the bond should be reckoned from the date of that decision. *114 Second. But apart from this, it may be asked how could he file his bond, any sooner than he did.
On the first day of October, 1903, the Anne Arundel Court decided upon the legal principles to be applied to the case of Clayton who was one of the candidates for the various municipal offices. Then the position of the Council underwent a change, and on that day they voted to and did approve the appellee's bond.
Whether the requirement of the Code be considered as mandatory or directory, it would certainly be a harsh construction of it, to decide that under these circumstances the appellee had forfeited his claim to the office. He was prevented from filing the bond, by the conduct of the officers appointed to receive it. He was not bound to do the nugatory act of tendering it, as long as he was substantially informed it would not be received. It is his own failure that will operate against him, and not that of others who prevented. Culver v. Armstrong, 43 N.J. Rep. 776. The provisions of the law requiring the bond in a fixed time, do not apply as long as a contest is pending to determine who is elected. People v. Potter,
It follows from what has been said that the order must be affirmed.
Order affirmed.
(Decided February 19th, 1904.) *115
