Murdoch v. Strange , 99 Md. 89 ( 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, 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, 43 Md. 6), that inasmuch as the M. C.C. of Annapolis are a municipal corporation established for political purposes and possessing no powers except such as have been expressly, or by necessary implication, given by the law creating it, no by-law or rule can be established by custom, which is beyond its authority to adopt by resolution or ordinance. Admitting, therefore, further, for the sake of the argument, that the custom contended for by the appellant has been fully established (which however we do not decide), there arises the pertinent inquiry, how far the corporate authorities of the city of Annapolis have power to adopt as a rule of procedure, in the election of its officers, a rule whereby a blank ballot is to "be counted as a ballot in estimating the total number of votes cast;" or in other words, may it under its conceded power of establishing a rule of procedure, declare by resolution, or in any other manner, not only that a blank ballot, shall be counted, but also that it shall be counted as a vote of dissent. We are not inquiring, just now, whether such a rule would be reasonable; but whether it is in conformity to the proper exercise of the power granted by the charter. By the 17th section of that instrument, the power to the Council is, "to provide for the appointment" of Market Master and certain other officers. It may be clear, that the particular method of the appointment is left to the judgment and discretion of the corporation; that is, whether the method of appointment should be by resolution of the Council, or by a a viva voce vote, or by ballot. However the Council may decide, in this respect, the method itself and the several steps by which the final choice is to be determined, must be in harmony with the fundamental principles, recognized and understood by the common law to be applicable. For instance, if the Council provided by its ordinance, as it has done here, that the appointment shall be by ballot, the Council could not establish a rule, by custom or otherwise, whereby a minority of the votes cast would be effective to elect, or whereby a number less than a quorum could transact the business. It seems to be clear, as was said in Trowbridge v. Newark, 46 N.J.L. 144, that a power to provide for the appointment, granted to a municipal corporation, merely authorizes the "Common Council to pass ordinances prescribing a mode and manner of manifesting their will, whether to do so, by ballot or resolution or ordinance, or by mere motion adopted viva voce."

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., 65 Md. 149; 1 Dillon on Munci.Corp., sec. 319 (4 ed). Or to state the proposition with reference to the particular facts of this case, if the method of appointing the Market Master be fixed by the ordinance of the Council to be by ballot, then all the common law rules that apply to that method of acting must be observed; and no rule can be established by custom or otherwise, that will substantially affect the determination of the majority, otherwise than according to the principles of the common law. The power conferred upon the City Council by sec. 17 of the Charter, was therefore completely exercised by the passage of sec. 1 of Art. 29 of City Code, in respect to the method of the selection of Market Master, whereby it was provided that he should be chosen by ballot. How the ballots shall be counted, and the majorities determined, where matters fixed by the principles of the common law. In Heiskell v. Mayor (supra), it was stated in substance, that where the Charter is silent, the common law fixes the majority as the legal body, and for the Municipal Council to undertake to make a greater number, is to attempt to change the common law; and by a parity of reasoning, it would seem to be equally clear, that when a municipal body without special authority from the Charter or from some legislative enactment, under the pretence of making a rule of procedure, undertakes to affix to the ballots cast, or to any one of them, or to a blank ballot, a significance, other than that given or allowed by the principles of the common law, whereby the final result of the balloting is or may be entirely changed, it is in fact neither more nor less, than an attempt to change the common law; and such an undertaking would be illegal and void.

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 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, 50 N.Y. 463; Reg. v. Coaks, 3 Ellis Blackburn, 249.

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 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 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,65 Md. 146-150. This principle is supported by the overwhelming weight of authority in this country and England. From Oldknow v. Wainwright, 2 Burr. 1017, decided in 1760, down to UnitedStates v. Ballin, 144 U.S. 1, there is hardly a single decision to the contrary. Cooley Const. Lim., 6 ed., p. 771;County of Cass v. Johnston, 95 U.S. 360; Reg. v. Coaks, 3 Ellis B. 249; Price v. Baker, 41 Ind. 572; Willcock onMun. Corp., sec. 546; Grant on Corp., p. 204, et seq.;Citizens, c., v. Williams, 49 La. Ann. 422; Smith v.Proctor, 130 N.Y. 319; People v. Clute, 50 N.Y. 461. We do not understand the counsel for the appellant to assail this doctrine, as applicable to elections by an indefinite number of voters; but he contends it does not apply to elections by definite assemblies, where he contends a different rule should prevail.

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 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, 121 Ind. 210, the Indiana Court conclusively shows, that it should have no such significance. In the first sentence, by reference to the case of Coles v.Trustee, 10 Wend. 659, it is clear that the author was referring to the effect of the presence of disqualified persons, whereby there was no valid quorum present, so far as the voting was concerned. In the second sentence, he but announced the well-known principle, that where only a bare quorum was present a majority may bind the quorum. Buell v. Buckingham, 16 Iowa 284;Rea v. Monday, Cowper, 538.

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 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, 98 Ky. 59; State v. Young, 19 Montana, 244;Atty.-Genl. v. Shepard, 62 N.H. 384; Rushville Gas. Co. v.Rushville, 121 Ind. 206; State v. Vanosdal, 131 Ind. 191;Ib. v. Dillon, 125 Ind. 65; Booker v. Young, 12 Grattan, 305; Launtz v. People, 113 Ill. 144; State v. Green,37 Ohio St. 227; see also Willcock on Mun. Corp., sec. 546.

We are therefore of opinion, that the appellee should have been declared elected.

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, 93 Md. 694, where a person claimed the office, without having filed a sufficient bond. Nor is it within Archer's case, 74 Md. 443, where the appellant had wholly failed to qualify, within one month, and the question was, could a suit be maintained on a bond, filed by the appellant at a time when he had no right to the office.

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. 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, 63 Cal. 127; Pearson v.Wilson, 57 Miss. 848. If this were not the rule, a person entitled to an office could be defeated of his right, by the mere refusal of an officer appointed to approve the bond declining to receive it. Throop on Public Offices, sec. 172.

It follows from what has been said that the order must be affirmed.

Order affirmed.

(Decided February 19th, 1904.)