Kean v. Rizer

The question in this case involves a construction of certain sections of the city charter of Cumberland, Md. By the Act of 1898, chapter 158, it is provided that each and every member of the City Council shall be the bona fide owner in his own right of property to the amount of five hundred dollars and assessed for the same on the books of the city at the time of his election and for the next year prior thereto, the taxes on which shall not be in arrears. And the Act (now section 58 of the charter) further provides that the Mayor and each member of the City Council shall, during the whole term for which they are elected, be possessed of all the qualifications rendering them eligible to be elected, and if any one of them during the timefor which he was elected shall fail to retain all the qualifications necessary to render him eligible to election, he shall forfeit such office and such forfeiture shall be declared by the said City Council and the vacancy caused thereby shall be immediately filled as herein provided; and if the said City Council shall neglect or refuse to declare such vacancy and to fill the same, then any tax-paying citizen of said city, being a legal voter therein, may file a petition in the Circuit Court for Allegany County against such officer, and the said Court, or judge thereof, if in vacation, shall pass an order requiring such officer to show cause why his office should not be vacated and the vacancy filled as provided, and such order shall be made returnable not more than twenty days after its passage and a copy thereof shall be served on such officer, and if he shall fail to answer the same, said Court or the judge thereof, if in vacation, shall hear and determine such matter ex parte, and if such officer shall answer the same, then the said Court, or the judge thereof, if in vacation, shall at once hear and determine the issue raised by such petition and answer and shall declare the office of the said respondent vacant, and order the election of his successor, as herein provided, or shall dismiss the petition, as the proof may justify, and may award costs as may appear equitable and right.

On the 25th of October, 1899, the appellant, a tax-paying citizen and a legal voter, in the city of Cumberland, filed a petition in the Circuit Court for Allegany County, wherein it is alleged that the appellee, Edwin F. Rizer, was on the 16th day of May, 1898, at a municipal election held in the city of Cumberland, elected to the office of City Councilman for the term of two years; that, subsequently, he was sworn in, and has acted and continues still to act in that capacity; that the appellee is not a bona fide owner in his own right of property to the amount in value of five hundred dollars and was not at the time of his election, nor for the year next prior thereto, and doesnot possess and retain the said qualifications that would render him eligible to be elected and retain the office of City Councilman, and so has not at any time been duly and legally qualified to occupy the office and discharge its duties; that the City Council has failed to declare the office to be vacant and to fill it as required by the city Charter. And the prayer of the petition is for an order requiring the appellee, Rizer, to show cause why the office should not be vacated and filled as required by the city Charter. To this petition a demurrer was filed on the ground that its allegations were not sufficient to entitle the petitioner to the relief asked, and the demurrer being sustained, hence this appeal.

The question then is one solely of remedy and procedure and that is, whether the facts stated in the petition and admitted by the demurrer are sufficient to bring this case within the remedy of the special proceeding provided by the city Charter of Cumberland for vacating the office of City Councilman. And that depends upon the construction to be placed upon that part of the 58th section of the city Charter of Cumberland which reads: "The Mayor and each member of the City Council shall, during the whole term for which they were elected, be possessed of all the qualifications rendering them eligible to be elected, and if any one of them, during the time for which he was elected, shall fail to retain all the qualifications necessary to render him eligible to election, he shall forfeit such office," c. c.

The statute apparently deals with two classes of disqualification — one in which the disqualification of a candidate occurs prior to an election and the other a disqualification during the time or term for which one is elected. It is well-settled law that the election of a disqualified person is a nullity — the election is a failure and a new election must be held. Judge Dillon in his work on Municipal Corporations, page 279, says: "If the law requires freeholders to be chosen for certain offices the election of a person not a freeholder is void."

It is quite certain, then, that if the appellee, Edwin F. Rizer, did not possess at the time of his election, as alleged, the qualifications prescribed by the Charter for the office of City Councilman of Cumberland, he was never legally elected thereto, and his predecessor would have been entitled to the remedy by mandamus without resorting to any other proceeding.Robb v. Carter, 65 Md. 321; Kurtz v. Townsend,83 Md. 331.

The special remedy and proceeding, provided by the 58th section of the Charter (Act of 1898, ch. 158), seems to us to apply to the case of a councilman qualified at the time of his election, but becoming afterwards disqualified, in point of property, and it has no reference to the case of a disqualified candidate at the time of his election. The language of the Act is — shall during the whole term for which they are elected be possessed of all the qualifications * * and if any one of them during the time for which he was elected shall fail to retain all the qualifications necessary to render him eligible to election * * then any tax-paying citizen of the city being a legal voter therein shall have the special remedy provided by the Charter.

We think that the words of the statute limit this special jurisdiction to the class of cases just stated by us, and the Legislature meant to provide a remedy where one did not previously exist. This case does not fall within the terms of the statute, as urged by the appellant. For these reasons, we think the ruling of the Court on the demurrer was right and it will be affirmed.

Judgment affirmed, with costs.

(Decided January 10th, 1900).