Summerson v. Schilling , 94 Md. 591 ( 1902 )

The appellant filed a petition in which he prayed for a writ ofmandamus against Messrs. Schilling, Thomas, McGraw and Krebs, Judges of Election of the 9th Precinct of the 10th Ward of Baltimore City, "commanding them to give unto your petitioner proper assistance to enable him to mark his ballot at the ensuing general election to be held on the 5th day of November, 1901, or at any other election to be held during the ensuing year." The defendants answered and amongst other things stated that Judges of Election had no authority under the Act of 1901, ch. 2, or under any pre-existing law, to give assistance to the petitioner in marking his ballot. The appellant then obtained leave to file an amended petition in which he made defendants the Judges of Election and the two ballot clerks for that precinct. In that he asked for a mandamus against the Judges of Election commanding them to take his affidavit that he cannot read or write, "at the ensuing general election to be held on November 5th, 1901, or at any other election to be held during the ensuing year," and against the two ballot clerks commanding them to mark upon the ballot of the petitioner the names of the candidates for whom he shall desire to vote. The petitioner demurred to the several answers and on the 25th of November, 1901, the Court overruled the demurrers. Thereupon the petitioner moved the Court to remove the case to a Court of equity which motion was overruled and the petition dismissed. The petitioner then appealed "from the order overruling the demurrers of the plaintiff, denying his motion to have the case transferred to a Court of equity, and dismissing the petition."

Much that we have said in the case of Summerson v. Schillinget al., Board of Registry, etc., is applicable to this case. The theory upon which appellant proceeded was that sec. 62 of Art. 33, as amended by the Act of 1901, ch. 2, is unconstitutional and void, and hence did not repeal that section as enacted by the Act of 1896, which 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 clerks in preparing the same in the manner following, etc. The Act of 1901 provides that voters who are not disabled by blindness or physical disability shall not be entitled to receive assistance. If the Act of 1901, had never been passed, it is manifest that the Judges of Election could not be compelled by mandamus to give the petitioner "proper assistance to enable him to mark his ballot," as the law prior to that Act authorized the clerks, and not the judges, to give the assistance. That was doubtless the reason the petition was amended and there can be no question that the writ as prayed for in the original petition could not have been issued, whatever construction be placed on the Act of 1901.

But the same difficulty that existed in the case against the Board of Registry exists here. This petition was dismissed on the 25th of November, 1901 — twenty days after the election. It is manifest that quoad that election it would have been nugatory to have issued a mandamus. But it is said that the petition applies to the election of November 5th, 1901, "or at any other election to be held during the ensuing year." There is no other to be held during the ensuing year, unless it be said there may be a special election. Is this extraordinary writ to be issued on the mere possibility that there may be a special election? If there is none, then the writ will be utterly unavailing. If there is, it is possible that the petitioner may have learned to read before it is held, and yet if the Court issues the mandamus it would be utterly useless under those circumstances, as the petitioner could not truthfully declare under oath that he could not read or write.

But giving section 62, as passed in 1896, all the effect that is claimed for it by the appellant, how could the Judges of Election take the affidavit or the clerks assist the petitioner, under that section? It is only when he "shall have stated such inability at the time of registering and is so entered in the registers" that the judges and clerks are authorized to act. If the Act of 1901 had not been passed, and there was no such entry in the registers in reference to the petitioner, could amandamus be issued against the judges and clerks requiring them to do what is now sought in this case? Manifestly not, and how can it be issued, on the theory of the appellant that the Act of 1901 is unconstitutional — that is to say is not a valid law? There is no statute requiring any of the defendants to do what the Court is asked to require of them, unless it be that section as passed in 1896, and that, as we have seen, only authorizes them to so act under conditions which confessedly do not exist in this case.

It may be that it is not the fault of the appellant that such entries were not made in the registers, but if the petition correctly states the reasons for the refusal of the Board of Registry — that they were obliged to do so by the instructions of the Attorney-General of Maryland — it can scarcely be said that they are at fault for not making the entry. The fact is it was not entered, and there is nothing in the law to compel the defendants to do what the Court is now asked to require of them, even if the appellant's view be adopted as to the status of section 62. It is therefore wholly immaterial, for the purposes of this case, whether the Act of 1901 be unconstitutional or not, and as we said in the other case that question is therefore not properly before us.

Without stopping to consider whether the statute (Art. 26, sec. 42, as enacted by Act of 1896, ch. 229), for removal of cases from Courts of law to Courts of equity and vice versa applies to a proceeding for a mandamus, or whether the petitioner could obtain any relief in equity, the statute provides that the case may "in the discretion of the Judge presiding in the Court in which the suit is pending" be removed, etc. It being left to the discretion of the presiding Judge, it is not a subject for review by this Court. As such a removal must ordinarily, if not always, involve amendments of the pleadings, and as amendments are in the discretion of the Court, the Legislature was probably influenced by that fact to thus leave the removal to the discretion of the presiding Judge. But whatever its reasons were, it did thus expressly so leave it.

The order of the Court sustaining the demurrer and dismissing the petition will be affirmed.

Order affirmed, the appellant to pay the costs.

(Decided March 5th, 1902.)