Summerson v. Schilling

The appellant applied for a mandamus against the appellees, who constituted the Board of Registry of the 9th Precinct of the 10th Ward of Baltimore City, to compel them to question him as to his ability to read "and to enter and record his statement in respect thereof in the books of registry as required by law." The petitioner alleged that he presented himself for registration on the 17th day of September, 1901, and it became the duty of defendants to administer the oath to him and to question him as to his qualifications and to record in the books of registry his answers as to certain matters stated in the petition. He alleges they refused to question him and to enter in the registry books "whether said applicant is unable to read and for that reason will be unable to mark his ballot without assistance" and that "if said applicant states that he is unable to read and for that reason would be unable to mark his ballot without assistance, said registrars were required to enter the word ``no' upon their books of registry." The four registrars filed an answer in which they admitted that they did not question the petitioner's ability to read, but denied that he had made any request or demand upon them to do so. Subsequently Messrs. Schilling and Thomas, with leave of the Court, and with the consent of the other two registrars, filed an answer in lieu of the one previously filed, in which they admit that the petitioner did make the demand, but they refused by reason of the fact that under the law, as amended by the Act of 1901, ch. 2, they had no authority to do so, as that Act repealed the provision in the former law, which did authorize it. The petitioner then demurred to the two answers and on the 24th of October, 1901, the Court overruled the demurrer and dismissed the petition. From that order this appeal was taken.

Secs. 15 and 16 of Art. 33 of the Code of Public General Laws, as enacted by the Act of 1896, ch. 202, did make provisions for such an inquiry of an applicant for registration, but by the Act of 1901, ch. 2, these sections were amended and those provisions were omitted, and there was no authority given the registrars in any part of the election law to make such an entry, or any record of it in the registry books. Sec. 62 of Art. 33, as amended by the Act of 1901, expressly provides that voters who are not disabled by blindness or physical injury from marking their ballots, shall not be entitled to receive assistance in marking them. That section, as enacted by the Act of 1896, ch. 202, provided that "any voter who declares under oath to the Judges of Election that he cannot read or write, or that by reason of physical disability he is unable to mark his ballot, and who shall have stated such inability at the time of registering, and is so entered in the registers shall receive the assistance of the clerk in preparing the same in the manner following," etc. Another case in which the appellant applied for a mandamus against the Judges and Clerks of Election was argued with the one now under consideration, which more particularly involves sec. 62, but the appellant contends that that section, as enacted in 1901, is unconstitutional, in so far as it refuses aid to illiterates, and that the Act of 1896 quoted above, is still in force. A great part of the argument on behalf of the appellant was directed to the alleged unconstitutionality of the Act of 1901, but we do not think that question is involved in this case, as presented by the record. The Court below did not pass upon it and unless the constitutionality of a statute, regularly passed by the Legislature, is properly before the Court it is, as a rule, not advisable for it to enter into such a discussion. We have sometimes done so, at the request of both sides to the controversy, but in this case while counsel for appellees did refer to the subject, it was only in the event that the Court should not agree with their contention that, to quote from their brief, "this question not having been passed on by the Court below and not being, as we have said, presented by the record, cannot properly be considered and passed upon by this Court." Acts of the Legislature are presumed to be constitutional and this Court ought not to be expected to call into question the constitutionality of a statute, when it is wholly immaterial to the decision of the case, as we think it is in the one now under consideration.

It is well settled that the Court will not, by mandamus, attempt to compel parties to do a nugatory act. State v.Register et al., 59 Md. 289; Wells et al. v. Hyattsville,77 Md. 142; Brown v. Bragunier, 79 Md. 236. If this order were reversed and a mandamus directed to be issued, it is manifest that the defendants could not comply with it. The order dismissing the petition was passed on the 24th day of October, 1901. At that time the registrars no longer had control of the books, and had no authority to make entries thereon. The election was held on the fifth day of November, and the last meeting of the Board of Registrars before the election, provided by law, was "the Tuesday three weeks preceding such regular election," and then "for the sole purpose of revising their registry, and no new names shall be added." Section 21 of Art. 33. That was on the 15th of October, 1901. Section 22 of Art. 33, provides for comparing and correcting the two registers, so as to make them agree, and directs that "during the next day the Board of Registry shall return the two registers to Board of Supervisors of Elections," etc. The Board of Registry therefore did not have possession of the books and had no authority to make entries therein when the order of October 24th was passed. Even in cases of appeal from that board, the Supervisors of Election are the parties to make entries ordered by the Court. Such being the law and the facts of this case, it would have been impossible for the defendants to have complied with a mandamus, if one had been ordered, and therefore it would have been nugatory and a useless proceeding.

It is contended, however, on the part of the appellant, that the Board of Registry is a perpetual board and the successors of the defendants would have been bound by the writ of mandamus. A sufficient answer to that would perhaps be that the petition only prays that a writ of mandamus may be issued directed to the four persons named "constituting the Board of Registry * * * * commanding them to question your petitioner," etc. There is no prayer for a writ to issue so as to bind their successors. But independent of that there is no such continuous office in the Board of Registry as would make the authorities cited by the appellant applicable to this case. It is true that Judges of Election are appointed for a year and that in Baltimore each Judge of Election is an officer of registration. But their duties, as a Board of Registry, are at an end when they turn the books over to the Supervisors of Election, excepting in the years in which there is a municipal election in Baltimore, and there is none in 1902. In case of a special election there is no revision of the registry. Section 34 of Art. 33. In the city of Baltimore there is an annual registration and it would have been a remarkable writ if the Court had on October 24th, 1901, issued one which would have compelled the registrars, to be appointed in 1902, to question the petitioner as to his ability to read. He may not then be entitled to register in that precinct and yet according to the contention for the appellant a writ of mandamus could have been issued, its service suspended until new registrars are appointed for the precinct, although the appellant in the meantime may have changed his residence, or in some way lost his right to register there, or possibly during the year may have learned to read. It is clear that such a writ ofmandamus could not properly have been issued.

So without considering other reasons, we think that the order dismissing the petition was properly passed and it will be affirmed.

Order affirmed, appellant to pay the costs.

(Decided March 5th, 1902.)