“It appears to be well settled that in the absence of a statutory prohibition against resignation a candidate has a natural or inherent right to resign at any time and to have his name deleted from the ballot.”
How later courts described this case
- “It appears to be well settled that in the absence of a statutory prohibition against resignation a candidate has a natural or inherent right to resign at any time and to have his name deleted from the ballot.”
Written by the judges who cited it.
The opinion
Marbury, J.,
filed the following dissenting opinion, in which Prescott and Sybert, JJ., concurred.
I agree with the majority that Mr. Dempsey could resign his nomination as Republican candidate for the office of Comptroller of Baltimore City, and that there was a vacancy on the ballot as to the Republican nominee for that office. I do not agree that Mr. Pressman, the unsuccessful Democratic candidate in the primary for this elective position, could be nominated by the Republican State, or City, Committee to run on the Republican ticket against the very man that defeated him in the Democratic primary.
The case of Francis v. Sturgill (Ky.), 174 S. W. 753 , presented the exact question that is now before this Court. Francis and Sturgill were both candidates for the Democratic nomination for County Court Clerk, and Francis was the vie- *84 tor in the primary election. Subsequent to the primary, the successful Republican candidate withdrew and the Republican County Committee selected Sturgill to fill the vacancy, although Sturgill was still a registered Democrat. Sturgill won the election, and Francis moved to have his election set aside. Kentucky had no statute expressly requiring that a person selected to fill a vacancy in nomination be a member of the party selecting him, but it did have a requirement similar to Code (1957), Article 33, § 60, that a candidate for nomination in a primary election must be affiliated with the party whose nomination he seeks. In reversing the lower court, the Kentucky Court of Appeals held that the election of Sturgill must be set aside. The Court stated at page 757:
“The primary election law of this state does not, it is true, expressly provide that a candidate who suffers defeat for a nomination after permitting his name to go on the party ballot shall not be permitted to have it placed on the ballot at the regular election as a candidate, whether of another party or as an independent, but its provisions, by necessary implication, mean and declare that his name in such state of case shall not be placed on the ballot for the regular election as the nominee and under the device of a party opposing the party whose nomination he sought and was refused at the primary; and to hold otherwise would utterly defeat the object designed in the enactment of the primary election law and make of it a farce. It is our conclusion, therefore, that as the provisions of the primary election law would have excluded appellee, a member of the Democratic party, from procuring the placing of his name on the Republican ballot at the primary as a candidate for the nomination of the party to the office of county court clerk of Knott county, he was not, after his defeat in the primary for the Democratic nomination for the office in question, eligible to nomination therefor by the Republican committee of Knott county, and, therefore, that the action of the committee making him the *85 nominee of the Republican party and causing his name to be placed on the ballot for the regular election as such, under the device of the Republican party, was without authority and void.”
I disagree with the majority opinion that that decision has been qualified or ignored in those later cases cited by the majority. The Kentucky Court of Appeals was never faced with a later question involving the same situation. Kentucky has since enacted statutes that codify the decision in Francis so as to do by legislative enactment that which was done by the decision in that case.
The situation in Maryland now is nearly the same as that which existed in Kentucky at the time of Francis . There is no specific statute to prevent Pressman from running as Republican nominee for comptroller. However, the tenor of the Maryland election laws makes it evident that
“* * * it is improbable of belief that the Legislature could have contemplated that one who seeks, in a primary election, as did appellee, the nomination of his party for office, against another of like political faith, would, after suffering defeat at the hands of his opponent, have the right at the regular election to seek election to the same office against such opponent by procuring at the hands of the committee of an opposing party, the placing of his name on the ballot under its device as its nominee. Such a method of securing a party nomination is not consonant with good faith or fair dealing, and its approval by us would defeat the paramount object of the primary law and destroy its efficiency. * * *”
Francis v. Sturgill, supra, at page 756.
The cases relied upon by the majority as refusing to draw an implication that an unsuccessful candidate in one party primary may not be eligible to become the candidate of another party are, it seems to me, distinguishable on the facts involved or were governed by statute in the respective states.
There are inherent dangers in a result such as that reached *86 in the majority opinion. It is not inconceivable that it could result in pre-arranged “deals” between unscrupulous aspirants to political office and bring about a new hidden form of cross-filing for non-judicial elective offices, which can only result in detriment to the electorate and advantage to professional self-seeking politicians. Whether the views expressed by the majority opinion involve public policy or party policy, it seems clear that the holding of the majority runs counter to patent legislative intent in enacting primary election laws, as well as common sense. The situation now under the majority holding is the converse of that which existed in Kentucky after the decision in Sturgill, and may well call for consideration by the Maryland Legislature. I might add that in Maryland, as in most other states, the Legislature has enacted laws regulating party primary elections so that it may be said that there is no distinction in this field between public policy and party policy. To all intents and purposes they have become merged.
In addition to the provisions of Art. 33, § 60, supra, the Legislature has provided, by Code (1957), Art. 33, § 67 (d), that no person who has been a candidate for nomination by a political party at a primary shall be nominated for an office to be filled at the following general election by petition. I think that by these statutes the Legislature has established the policy that an unsuccessful candidate in a primary simply may not be a candidate in the succeeding general election, especially against the same man who defeated him in the primary.
Judges Prescott and Sybert authorize me to say that they concur with the views here expressed.