Opinion
[No. 198, September Term, 1962.]
Decided, per curiam, September 11, 1962. Opinion filed October 9, 1962.
MANDAMUS — Demurrer To Petition For, Properly Sustained — Publication Of Nominating Petitions — Code (1957), Art. 33, Sec. 68 — Appellants Did Not Prove That Baltimore County Election Board Acted Arbitrarily By Publishing Petition In More Expensive Newspaper Where There Was No Showing That Less Expensive Newspapers Were In "General Circulation" In Baltimore County. The appellants, citizens and voters of Baltimore County, appealed from an order of the Circuit Court for said county sustaining a demurrer to their amended petition for a writ of mandamus, which sought to compel the members of the Board of Supervisors of Elections to accept the sum of $1,920 in full payment for costs of the publication of nominating petitions for appellants. A court order was passed under which the Board was directed to publish the names by a certain date, and the appellants were to be responsible for the reasonable costs of publication consistent with Code (1957), Art. 33, § 68. The Board published the names in the Sunpapers for $9,204, although there was evidence that the names could have been published in the local county papers for $1,920, or less. The Court stated that Sec. 68, vests a certain amount of discretion in the Board in selecting the newspaper in which to publish the names. There is no requirement that the contract for publication be submitted to public bidding, or that the cheapest offer for publication be accepted. The requirements of the statute require at least one publication of the petition in a newspaper of general circulation in Baltimore County. The appellants did not allege that the county papers were newspapers of "general circulation" in a legal sense; nor was there any allegation as to the comparable circulations of those newspapers in Baltimore County with the circulation of the newspaper in which publication was actually made, so that the factor of disparity of costs, as it related to the question of arbitrary action by the Board, could be weighed and considered. The mere fact that the Board incurred an expense for the publication in excess of the amount that two county newspapers would have inserted the notice in their columns for, did not, ipso facto, show capricious conduct on the part of the Board. In addition, the Court stated that the allegation of the statement made by the Board's counsel with reference to other papers being "satisfactory for publication" had no binding effect on the Board in the absence of a concurrence of a majority of the Board; and the allegation that the Board did "arbitrarily, capriciously and dogmatically" cause the names to be published amounted to no more than a conclusion of the pleaders. Therefore, it was held that the trial judge was correct in sustaining the demurrer without leave to amend. pp. 438-442
H.C.
Decided, per curiam, September 11, 1962.
Opinion filed October 9, 1962.
Appeal from the Circuit Court for Baltimore County (TURNBULL, J.).
Petition by Earl R. Van Gorder and others, citizens and voters of Baltimore County, for a writ of mandamus, to compel the members of the Board of Supervisors of Elections of Baltimore County to accept the sum of $1,920, in full payment for costs of the publication of nominating petitions for appellants. From an order of the trial court sustaining a demurrer to their petition, the petitioners appealed.
Affirmed; costs to be paid by the appellants.
The cause was argued before BRUNE, C.J., and HENDERSON, PRESCOTT, HORNEY, MARBURY, and SYBERT, JJ.
J. Leo McCormick, Jr., for appellants.
John J. Caslin, for appellee.
Citizens and voters of Baltimore County appeal from an order of the Circuit Court for said county sustaining a demurrer to their amended petition for a writ of mandamus, which sought to compel the members of the Board of Supervisors of Elections (Board) to accept the sum of $1,920 in full payment for costs of the publication of nominating petitions for appellants.
Appellants name four points as "questions in controversy," but they adopt the rather unusual procedure in three of them of referring to several paragraphs of their petition, and then asking if the allegations of these paragraphs be proven, would they "constitute a legal cause of action"? The real question to be determined is whether the allegations of the petition, considered as a whole, are sufficient to withstand appellee's demurrer. We shall, therefore, consider them as a whole, and point out why the trial court was correct in his ruling.
For the purposes of this case, we shall assume, without deciding, that a mandamus proceeding is a proper one to obtain relief from officials, who are entrusted with discretion in the performance of their duties, but who exercise that discretion in an arbitrary and capricious manner.
The amended petition, in substance, alleges: that petitioners are residents and voters of Baltimore County, and "defendants" constitute the Board of Election Supervisors; that on April 30, 1962, petitioners proceeded to the office of the defendants for the purpose of submitting over 10,000 signatures on nominating petitions; that they were treated rudely, and required to undergo certain indignities, but they filed their nominating petitions; that on May 25, 1962, they received telegrams (presumably from the defendants) requesting $9,204 on, or before, May 28 for the publication of the names; that petitioners filed a petition for a writ of mandamus, to compel the defendants to publish the names of the signatures in accordance with the statute; and that Judge Raine passed an order in which he directed the defendants to publish the names by a certain date, and he stated in said order, "nominees [apellants] will be responsible for the reasonable costs of publication consistent with Section 68 of Article 33" of the Code.
The petition further alleges: that prior to the filing of their petitions they "did make inquiry and were advised that the cost of publication * * * would not exceed $2,000.00"; that they had spoken to counsel of the Board and he had stated the Jeffersonian or County Paper (county papers) would be satisfactory; that two members of the Board threatened to inflict physical injury on petitioners' counsel; that the Board arbitrarily and capriciously did cause the names to be published in the Sunpapers for $9,204, "with full knowledge that the cost of the same publication could have been secured from the Jeffersonian for $1,680.00 or the County Paper for $1,920.00"; and that the petitioners had tendered $1,920 to the Board in full payment of publication costs, but this sum had been refused. The petition prayed that the Board be commanded to accept the $1,920 in full payment from appellants for the publication of the nominating petitions.
Code (1962 Cum. Supp.), Article 33, § 68 reads, in part, as follows:
"Where such [nominating] petitions are filed with the boards of supervisors of elections, said board within thirty days after the filing of such petition shall cause to be published at least once in a newspaper of general circulation throughout the county, or the City of Baltimore, as the case may be, the names of all of the signers of any such petition, together with an explanation of the nature of the petition to which such persons' names are affixed. The cost of such publication shall be paid by the nominee whose name is thereby entered on the ballot; * * *."
There can be little doubt that the wording of this section vests a certain amount of discretion in the Board in selecting the newspaper in which to publish the names, and the phraseology "at least once in a newspaper" indicates that under some circumstances it may be proper for the Board to make more than one publication of the names. There is no requirement that the contract for publication be submitted to public bidding, or that the cheapest offer for publication be accepted. The requirements of the statute particularly pertinent here require, at least, one publication, within 30 days after the filing of the petition, of all the signers on the petition and an explanation of the nature of said petition in a newspaper of general circulation in Baltimore County. It is conceded that the Board made one, and only one, publication in the Sunpapers. It has been stated that whether a newspaper is one of "general circulation" is a matter of substance, not merely of size: it is one that circulates among all classes and is not confined to a particular class or calling in the community, and it is a term generally applied to a newspaper to which the general public will resort in order to be informed of the news and intelligence of the day, editorial opinion, and advertisements, and thereby to render it probable that the notices or official advertising will be brought to the attention of the general public. 66 C.J.S., Newspapers, § 4, p. 26.
A reading of the allegations of the amended petition, as they are outlined above, discloses that there is no allegation that the Jeffersonian or the County Paper were newspapers of "general circulation" in a legal sense (we do not intimate that they are or that they are not); nor is there any allegation as to the comparable circulations of these newspapers in Baltimore County with the circulation of the newspaper in which publication was actually made, so that the factor of disparity of costs, as it relates to the question of arbitrary action by the Board, may be weighed and considered. The mere fact that the Board incurred an expense for the publication in excess of the amount that two county newspapers would have inserted the notice in their columns for does not, ipso facto, show capricious conduct on the part of the Board. Baltimore County has a population of some five hundred thousand people; it is important that any official public notice be brought to the attention of, at least, a substantial portion of the general public; therefore, it is necessary to know the respective advantages and disadvantages of the different publications in determining whether the action of the Board was whimsical and irresponsible. In addition, the allegation that appellants "did make inquiry and were advised that the cost of publication * * * would not exceed $2,000" can hardly be considered a clear and direct allegation of fact in support of a petition for mandamus. Appellants have laid great stress on the portion of Judge Raine's order quoted above which stated that the "nominees will be responsible for the reasonable costs of publication consistent with Section 68 of Article 33," arguing that this order limited the obligation of the appellants to the reasonable costs of publication and no more. We think that this portion of Judge Raine's order is no more than a repetition of the meaning of the statute: it is extremely unlikely that the legislature anticipated that nominees should be required to pay an unreasonable amount for costs under any circumstances. The allegation of the statement made by the Board's counsel with reference to other papers being "satisfactory for publication" has no binding effect on the Board in the absence of a concurrence of a majority of the Board; and the allegation that the appellees did "arbitrarily, capriciously and dogmatically" cause the names to be published amounts to no more than a conclusion of the pleaders. Brack v. Wells, 184 Md. 86, 90, 40 A.2d 319. We hold that Judge Turnbull was correct in sustaining the demurrer without leave to amend.
As the per curiam order heretofore filed affirming the order of the trial court did not direct the payment of costs, it is ordered that the appellants pay the same.