Handy v. Hopkins

Alvey, J., delivered the opinion of the Court. This case comes before us on appeal, and the only question presented here is one of jurisdiction of the Circuit Court to pass the order of the 20th of July, 1882. The Code, Art. 35, sec. 53, provides that “All cases of contested elections of any of the officers not provided for in the Constitution, or in the preceding section, shall be decided by the Judges of the several Circuit Courts—each in his respective Circuit—and by the Superior Court of Baltimore City, in the City of Baltimore.” This section of the Code was taken from the Act of 1853, ch. 244, sec. 2, passed in reference to the provisions of the Constitution of 1851, but which has been continued in force by subsequent Constitutions, and is still in force. It is the only authority under which the Circuit Court acted in hearing the contest and passing the order appealed from. And as it is not pretended that the Constitution has made [169] any provision for contesting the election of County Commissioners, or that such contest is provided for in the preceding section of the Code, the question is, what is the extent of the power or jurisdiction conferred by section 53 above quoted? By the terms of the section the Court is invested with power of deciding cases of contested election; and this must include authority to decide all matters and questions involved in such contest. It is alleged that the contestants were duly elected at the election held on the 8th of November, 1881, and that the returns of the polling of that election, upon which the appellants were declared elected, were false and fraudulent. These allegations are sufficiently broad and comprehensive to found the inquiry, not only as to who, of the parties claiming, were elected, hut whether there had been any legal and valid election at all. It is quite certain, if the Court had determined that the contestants were elected, that conclusion of necessity would have involved the decision of the claim of the appellants to the office, and made it necessary to declare that the returns that had been made of the polling were false, and therefore void. In the event of such decision therefore the right of the appellants to office would have been definitively determined. It is insisted, however, that inasmuch as the Court did not declare the contestants duly elected, there was no power or jurisdiction conferred by the statute to declare that the appellants were not duly elected, and that the office was vacant. In other words, having passed upon the claim of the contestants and declared against their pretensions, everything else decided by the Court, in respect to the validity of the election, was in excess of the jurisdiction with which the Court was invested. But with this contention we do not agree. It is not true, as contended by the appellants, that the case of a contested election as contemplated by the statute, [170] is simply a personal contention as between rival candidates in respect to their private rights to the office. Such contest, in a large sense, involves public rights and interests of an important nature, and which the Court is not at liberty to overlook. The principal object of the statute was not merely to enable individuals to assert their private rights to office, hut also to furnish means by which the rights of the people might he protected against false and fraudulent returns, and the true result of an election ascertained. And where proceedings by the’ proper parties have been instituted, and the inquiry brought on to final termination, the Court, by virtue and force of the power to try and decide the contest, in respect to the particular office in question, is fully invested with authority and jurisdiction to declare the result of the election, whether it be to elect the one party or the other, or whether it he a failure to elect either, by reason of fraud or violence, such as would vitiate the election, and render void the certificates in favor of any particular party or candidate. This is the most beneficial construction of the statute, and that construction should he adopted which will afford the best protection of the public against false and fraudulent elections. And such has been the construction of this statute in the recent case of Anderson vs. Levely, 58 Md., 192. But it is insisted, that notwithstanding the Court may have had power to declare the election void, it had no power or jurisdiction, in the proceeding before it, and under the circumstances of the case, to declare the office vacant, as that depended upon the tenure derived through the preceding election of 1879. The Constitution, Art. 7, sec. 1, simply provides that the County Commissioners shall he elected on general ticket, on the same day every second year, and doces not declare in terms, that they shall hold until their successors are elected and qualified. But, without deciding whether [171] "they would so hold or not, and without in any manner questioning or throwing doubt upon the soundness of the decision of our predecessors in the case of Soppington vs. Scott, 14 Md., 40, we think the appellants are not in a position to invoke any such construction of the Constitution. Four of the five appellants, were elected County Commissioners at the general election of 1879, and were in office at the time of the. election of 1881. They were candidates for re-election, and were returned as elected, at the last mentioned election, and they were thereupon duly commissioned as such newly elected Commissioners. They accepted the commission, thus issued, and professed to enter upon the discharge of the duties of their office, in pursuance and by virtue of the last election and commission. These facts were distinctly charged by the contestants, and were as distinctly admitted by the appellants. They in no manner claimed that they were in office, or were entitled to hold office, by virtue of the election of 1879 ; but, on the contrary, they distinctly claimed that, they had been duly elected at the election of 1881, and that they were rightly holding under that election. blow,, under such circumstances, how is it possible that they can be heard to claim that they are entitled to hold over by virtue of the election of 1879 ? Their acts and professions musf be allowed their full meaning and import, and by those all claim to hold by virtue of the election of 1879, is shown to have been surrendered and given up. Good faith to the public required that there should be no doubt, or equivocation as to the authority by virtue of which the parties claimed to hold their office, and having assumed and professed to hold under the election of 1881, they are not at liberty to repudiate their own acts and professions, and attempt to resume a title that they had abandoned or surrendered, if, under other circumstances, such title could he maintained. Nor is it any answer to say that because [172] the Court, after investigation, declared the election of 1881 null and void, therefore, they were remitted to their former right to hold by virtue of their election in 1879, and that they are entitled to he regarded as having continuously held office by virtue of that election. The election of 1881 was not in effect null and void, until declared so, by the judgment of a competent tribunal; it was in all respects good and valid until declared otherwise; and the appellants were fully authorized to act in the discharge of the duties of their office, and all their official acts are as valid as if the election had been declared in all respects legal. They had not only the color of a due election, but they had all the forms necessary to invest them with full authority of the office ; and these they accepted and complied with, with an intention to hold under the last election, and none other. But from the moment that the election was declared null and void, the power and authority with which they were invested, by virtue of that election, ceased, and the office then became vacant. And such being the case, it is no objection to the order of the Court that it directed notice of the vacancy to be given to the Governor, that he might fill it, under the Act of 1880, ch. 210; that was but an act of courtesy of one department of the government to another. (Decided 27th October, 1882.) And having thus decided that the Court below had jurisdiction over the subject-matter before it, and that the order appealed from was not in excess of that jurisdiction, this Court has no other power of review. Being a special statutory jurisdiction, without express power of appeal, this Court is not authorized to do anything more than decide the question whether the case as tried and determined was within the limits of the special jurisdiction conferred ; and as we determine that it was, the appeals must be dismissed ; and we so order. Appeals dismissed.