Munroe v. Wells , 83 Md. 505 ( 1896 )

Fowler, J.,

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, repealing Article 33 of the Code, took effect from the day of its passage, namely, the 2nd day of April. On the eighth of April the appellants were appointed by the Governor to be supervisors of elections of Anne Arundel County upon the theory that the provisions of the Code relating to elections and registration, having been repealed by chapter 202, the supervisors who had been acting thereunder, had been legislated out of office and that, therefore, a vacancy existed which it was the duty of the Governor to fill. It appears, however, that just before the passage of the Act of 1896 the Governor had appointed these very appellants as supervisors for Anne Arundel County, under the then existing law, and it is provided by the second section of that Act that although so appointed before its passage, yet they should hold, and their appointments so made should to all intents and purposes be as if made under the said Act of 1896, by which their duties, term of office and mode of appointment are prescribed. But under the provision of the Constitution, section 13, Art. 2, the appellants, as supervisors of election under the Act of 1896, could not enter upon the discharge of their duties until the first day of May, which was after the time fixed for the special election ordered to be held by the House of Delegates. It was, therefore, to fill a supposed vacancy between the second of April when the old law was repealed, and the first Monday of May, when the officers under the new law could enter upon their duties, that the appellants were, as we have said, again appointed by the Governor on the eighth of April.

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 and laws of the State he was authorized to fill. If there was such a vacancy it must have been a vacancy in the office under the previous law or under the Act of 1896. It seems obvious there was no vacancy under the former, for it is conceded it was swept out of existence by the present law by which an entirely different method of appointment was provided. This being so, it follows that the previous law from the second of April when it was. repealed became absolutely inoperative for any purpose whatever. Wade's case, 43 Md. 178; Dashiell's case, 45 Md. 615. Hence the offices under the previous law have no existence after the second of April, and of necessity there could be no vacancy in them. Was there a vacancy under the Act of 1896 ? Confessedly not, for, as we have seen, the Governor had already appointed these appellants, and by section two of the Act of 1896, they were holding under it.

.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 vote was to be determined. But it was not contemplated that the registration under the Act of 1896 was to be had until long after the time fixed for holding the special election, and therefore it was not supposed, nor is it now claimed that the registration lists to be made under this Act could have possibly been available at that election. The prayer of the petition of the appellants is that the appellee be required to deliver to them the registry books of the qualified voters^ of Anne Arundel County, &c., as well as the ballot boxes, and the allegation is that without these the said election could not be held. But as we have held in the case of Meloy v. Scott et al., ante, 375, decided at this term, the effect of the repeal of the previous registration law by the Act of 1896, ch. 202, and the adoption by the latter of new methods for holding elections and for registration of voters, was to nullify the former law, and make it as inoperative and void as though it had never been in existence, it follows that the lists and ballot boxes prepared for use under and according to the provisions of the old law, cannot be available under the repealing law, unless the latter makes some provision for such a contingency. There being no such provision in the Act of 1896, the special election cannot be held, unless, as suggested, such election can be held without any registration.

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 known to the Constitution and laws of this State, either before or since the passage of the first registration law.

(Decided April 16th, 1896, per curiam and this opinion was filed on June 18th, 1896.)

Order affirmed.