text:
    BEAKES v. BOARD OF STATE CANVASSERS.
    1. Elections — Primary Election — Representative—Congressional Elections — Counties.
    Under Act No. 281, Pub. Acts 1909, as amended by Act No. 279, Pub. Acts 1911, 1 How. Stat. (2d. Ed.) § 505 et seq., providing that candidates at primary elections may file a petition for a recount with the board of the county or city where he conceives that he was aggrieved, and including congressional representatives within the operation of the law, a recount may be granted in any county within the district of the candidate for congressional representative; this section of the primary .act is not limited to districts comprising only one county.
    2. Same — Evidence—Judicial Notice.
    The court will take judicial notice that with one exception the congressional districts into which the State is divided are composed of more than one county.
    3. Same — Return of Board — State Board of Canvassers.
    Nor is the candidate precluded by the fact that the county board made a return to the State board of canvassers before the time for demanding a recount had elapsed.
    4. Same — Notice of Recount — Primary Elections.
    The statute does not require notice to the State board of the pending recount.
    5. Same — Mandamus.
    It was not a ground for denying the writ of mandamus against the State board of canvassers, after a recount resulting in relator’s nomination, that a mandamus proceeding commenced in the circuit court questioning the correctness of the recount remained undetermined, when it appeared from a copy of the proceedings that a number of uninitialed ballots had been improperly counted for both candidates, and, excluding them, relator was nominated.

      6. Same.
    The point that illegal votes were cast in another county of the district cannot be considered; the question can only be determined by a recount, which was not demanded in the other county.
    Mandamus by Samuel W. Beakes against the board of State canvassers to compel respondents to issue to relator a certificate of nomination as democratic candidate for representative in Congress.
    Submitted October 15, 1912.
    (Calendar No. 25,366.)
    Writ granted October 23, 1912.

      Miller, Smith, Paddock & Perry (Herbert B. Clark and Sidney T. Miller, of counsel), for relator.

      Thomas A. Lawler, Deputy Attorney General (John C. Howell and J. N. Sampson, of counsel), for respondent.
   McAlvay, J.

This proceeding was instituted by relator, asking for a writ of mandamus to compel the State hoard of canvassers to reconvene forthwith, and to set aside and cancel a certain certificate of nomination heretofore issued to Bert D. Chandler, and to compel said board to issue to relator a certificate of nomination as democratic candidate for the office of representative in Congress for the second congressional district of this State and to compel said board to issue such certificate to relator.

It appears from the record that petitioner and said Bert D. Chandler were the only candidates at the primary election in August, 1912, whose names appeared upon the official ballot as candidates for the democratic nomination for representative in Congress in the said second congressional district, which comprises the counties of Jackson, Monroe, Washtenaw, Lenawee, and part of Wayne. The first count by the county board of canvassers in said district showed that Mr. Chandler had received 2,587 votes and relator 2,570 votes.

Kelator, under the provisions of the primary election law, filed his petition with the Lenawee county board of canvassers during its sessions, and before adjournment, asking for a recount of the said votes cast at such primary election in said county. This petition was considered by said board on its merits, and an order granting such recount was duly made on September 7, 1912. At an adjourned day such recount was had, which changed the result of said election in favor of petitioner, giving in said county Mr. Chandler 979 votes, instead of 1,004 votes, and petitioner 282 votes, instead of 285 votes — a net loss to Mr. Chandler of 22 votes.

A regular statement by the board of county canvassers of this result was duly made and certified, as required by law, on September 19, 1912, and was at once forwarded to the board of State canvassers. By this statement the result of the primary election for such nomination in that congressional district was changed, and petitioner had a majority of the votes cast for democratic candidates for nomination for the office of representative in Congress for the second congressional district. He contends that he is entitled to a nomination certificate from the board of State canvassers as democratic nominee of the office mentioned.

On the day before relator’s petition for the recount was filed, the Lenawee board of county canvassers certified and returned, as required by law, its statement of the first count which it had made to the State board of canvassers, which, upon such statement, issued a certificate of nomination to Mr. Chandler. After the result of the recount in Lenawee county had been forwarded by the board of county canvassers to the State board of canvassers, relator filed a petition with said last-named board, asking that it reconvene and cancel the certificate issued to Mr. Chandler and forthwith issue a certificate of nomination as democratic candidate for such office to petitioner. This the respondent board of State canvassers refused to do, and these proceedings were instituted and an Order to show cause issued.

The answer of the respondent board to said order admits all the material allegations of fact averred therein. It alleges that no notice was given to it by relator of his application for a recount in Lenawee county, and that the refusal and neglect to grant petitioner’s request to recall and cancel- the certificate issued to Mr. Chandler and to issue one to relator was not wilful, and also sets up certain proceedings for a writ of mandamus in the circuit court of Lenawee county which question the validity of the recount relied upon by relator, and also that certain affidavits had been filed with it, to the effect that there were irregularities in such primary election in certain districts in Monroe county, and denies that under the primary election law (being Act No. 281, Pub. Acts 1909, as amended by Act No. 279, Pub. Acts 1911; 1 How. Stat. [2d Ed. ] § 505 et seq.) there is any provision for a recount of the votes cast at a primary election for candidates for offices in districts comprising more than one county.

The contention of relator is that he conformed with all the requirements provided by the present primary election law; that the petition for recount, as required, was filed with the board of county canvassers in due season; that all of the proceedings taken upon such recount were regular, .and that the county canvassers’ statement and return of the result of such recount were regularly made to the State board of canvassers; and that the result shows that he is entitled to a certificate.

The respondent board contends, among other things, that—

“ The primary election law does not authorize a recount by a board of county canvassers for candidates for office in districts comprising more than one county.”

If this is correct, then relator in these proceedings must be denied any relief.

The law of 1907 was repealed by Act No. 281, Pub. Acts 1909. Section 40 of this act reads as follows:

“Any candidate voted for at any primary election provided for in this act who conceives himself aggrieved * * * may, on or before the close of the day or days upon which the board of city or county canvassers meet, present to and file with the chairman or secretary of the particular board of the county or city in which the recount is asked, a written or printed petition, which shall be sworn to, and shall set forth as near as may be the nature of the errors or fraud complained of, and the particular township, ward or precinct in which the alleged irregularities occurred, and ask for a recount of the votes cast therein. * * * It shall be the duty of said board of canvassers to investigate the facts set forth in said petition,” etc.

This is the only section making any provision for a recount of the votes cast at a primary election. By its terms it includes all candidates voted for at any primary election. It designates only county and city boards of canvassers as the boards to receive petitions and make such recounts. In this respect it differs from Act No. 4, Pub. Acts 1907 (Special Session), which it repealed, and does not include the board of State canvassers, as provided in the former law.

As already shown by the quotation from section 40, all candidates voted for at any primary election may make application for a recount only, under its provisions, to boards of county or city canvassers in which a recount is asked. This court will take judicial notice that with one exception the congressional districts into which this State is divided are composed of more than one county. That this was recognized by the legislature, clearly appears in this primary election law.

Section 17, as amended, provides that:

“ In every congressional district in this State there shall be nominated at the said August primary election, by direct vote of the enrolled voters of each political party within such district, a party candidate for representative in congress.” Act No. 279, Pub. Acts 1911, p. 486.

All of the preliminary requirements by the statute necessary to be performed by candidates desiring to have their names printed upon the official primary election ballot need not be stated. It is necessary that all candidates file nomination petitions signed by a certain per cent, of the votes cast at the preceding election. For the purposes of this case, as relating to districts comprising more than one county, the following provisions quoted from this law will be sufficient:

Section 26 provides:

“ * * * In a district comprising more than one county to obtain the printing of the name of any candidate of any political party upon the primary election ballots of such political party in the various voting precincts of said district, there shall be filed with the secretary of State nomination petitions, signed by a number of the enrolled voters residing in said district, and who are enrolled in the party enrollment of said party, equal to not less than two per centum nor more than four per centum of the number of votes that the party cast therein for secretary of State at the last preceding November election.”

After these nomination petitions are filed under the provisions of the law, section 31 provides:

“The secretary of State * * * shall forthwith, after the last day named herein for receiving and filing nomination petitions, certify to the proper board or boards of election commissioners in such * * * district * * * the names * * * of all party candidates whose petitions meet the requirements of this act. * * * ”

By section 38 provision is made for the canvass of the returns of primary elections, as follows: '

“ In the case of nominations for United States senator, governor, or lieutenant governor, or officers from districts comprising more than one county, the county clerks of each county affected shall transmit to the secretary of State * * * certified copies of the number of votes received by each of the candidates for the nomination of any of the said offices.”

It also provides that the secretary of State shall convene the board of State canvassers at his office, which shall proceed to canvass such returns, as follows:

“ In canvassing the votes of candidates for members of Congress, * * * in districts composed of more than one county, said board shall proceed in like manner as is done in the canvassing of votes cast for members of Congress.”

Section 39 provides who shall be declared the nominee:

“The candidate of each political party for nomination for any office who receives the greatest number of votes cast for candidates for any such office as set forth in the returns or as determined, by the board of canvassers on the recount by it of said ballots, shall be declared the nominee of that political party for said office, * * * and the board of canvassers shall forthwith certify such nominations to the respective boards of election commissioners affected thereby.”

From an examination of the primary election law and a consideration of its provisions as herein stated, we arrive at the conclusion that it does authorize a recount by the boards of county canvassers of the several counties for candidates for office in districts comprising more than one county.

It is also the contention of respondent that relator has had his day in court, and cannot now require it to reconvene and hear new evidence. This contention is based upon the proposition that the first statement and return of the county board of canvassers is conclusive upon relator. We cannot agree with this contention. The entire statute shows the legislative intent that a candidate who follows its provisions shall be entitled to a recount. It follows that if his claims are established he is entitled to the benefit of the favorable result which the recount gives him. This contention may be founded upon the claim that respondent board had no notice of this recount. A sufficient answer to this claim is that the statute, neither in fact nor by inference, requires any such notice.

Respondent further alleges that the writ should be denied relator, because the correctness of this recount is questioned in the Lenawee circuit court, and the proceedings are undetermined. The record contains a copy of the petition by Mr. Chandler, praying for a mandamus against the hoard of county canvassers of Lenawee county to compel it to reconvene and recount, claiming that the recount had on relator’s petition was illegal. In that proceeding, from a certified copy thereof filed in this court, it appears that the court allowed the relator to intervene, and upon a hearing found that a large number of uninitialed ballots had been cast and improperly counted for both Mr. Chandler and Mr. Beakes, which should have been rejected, and that the actual net result was many more votes for the relator in this proceeding than were found upon his recount. Therefore the result of these proceedings was favorable to relator.

The claim is also made by the respondent board that there were affidavits filed with it, which are attached to its answer, by which it appears that there were illegal votes cast in Monroe county in said district, which, if true, would overcome relator’s majority. This contention is without merit, for the reason that no recount of any votes in Monroe county has been asked for or had by any candidate, and such questions can only be raised upon a recount. The affidavits referred to were not papers which could properly be filed with respondent board, or be considered by it.

The foregoing consideration of this statute, known as the primary election law, as amended, discloses a legislative intent to provide a workable piece of legislation; and the duty of the court in its construction is, if possible, to give force and effect to all of its provisions. In our opinion, so far as the questions involved in this proceeding are concerned, the provisions of this law are not ambiguous. It in terms provides means whereby candidates, by following its provisions, may have errors and frauds corrected. The time in which, for the purpose of the recount, a candidate, must avail himself of his rights under it is fixed and certain. The action of the county board of canvassers in making its certified statement and return of the first count before the time expired in which relator could file his petition for a recount was premature and of no legal effect; and the only certified statement and return upon which respondent board can act in deciding who is entitled to a nomination certificate is the one “ determined by the board of canvassers on the recount by it,’’duly certified as required by statute to the respondent board; and the board to make certification under the provisions of this law in this case is the county board of canvassers of Lenawee county.

Our conclusion therefore is that relator is entitled to the relief prayed, and a writ of mandamus will issue, requiring the respondent board of State canvassers to reconvene, and to set aside and cancel the certificate of nomination heretofore issued to Bert D. Chandler, and to issue to relator a certificate of nomination as democratic candidate for the office of representative in Congress for the second congressional district of this State.

Moore, C. J., and Steere, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    ABBOTT v. BOARD OF CANVASSERS OF MONTCALM COUNTY.
    1. Elections — Poll List — Numbers Opposite Names — Recount.
    Ballots oast at a primary election in one township should not be rejected on recount because of the failure of the inspectors to place opposite the names of the voters on the poll list the numbers of their ballots, unless the irregularity was fraudulent. Act No. 281, Pub. Acts 1909, § 35; 1 How Stat. [2d Ed.] § 539.
    2. Same.
    After having counted and tallied ballots which the inspector had omitted to mark with his initials, reserving the question whether the votes were legal until later, the board of canvassers rightly rejected the ballots as defective before the final adjournment, and were not precluded from changing their determination.
    Mandamus by W. Glen Abbott against the board of county canvassers of Montcalm county and others to compel the board to reconvene and modify their determination on recount as to the office of county clerk.
    Submitted October 18, 1912.
    (Calendar No. 25,385.)
    Writ denied October 23, 1912.

      O. L. Barden and B. A. Hawley, for relator.

      N. O. Griswold and James Scully, for respondents.
   Kuhn, J.

The relator asks for mandamus to compel the board of county canvassers to reconvene and change the result of a recount had before them with reference to the office of county clerk, for which relator and Harmon W. Taylor were candidates at the primary election held on August 27, 1912.

Relator, among other things, alleges in his petition that in the township of Sidney the inspectors failed to place . opposite the names of the voters on the poll lists the numbers required by statute, with the exception that in the poll book filed with the county clerk numbers appeared opposite the first 22 names.and in the poll book filed with the township clerk numbers appeared opposite the names of the first 14 voters. Relator urged before the board of canvassers that the entire vote of the township should be rejected because of this irregularity. This the board declined to do. Section 35 of Act No. 281 of the Public Acts of 1909 (1 How. Stat. [2d Ed.] § 539), provides in part as follows:

“When an enrolled voter asks for a ballot the inspector shall enter his name upon the poll list, the name of the political party and the number of his ballot, before the same is given to the voter, and the inspector receiving the ballot shall, before depositing it in the box, ascertain by comparison with the poll list whether it is the same ballot given to such voter, and if it is not the samé ballot he shall reject it and such voter shall not be allowed to vote at such primary election.”

The answer of respondents with reference to this claim sets up the following:

“ These respondents admit that the returns of the township board of inspectors of the township of Sidney showed 88 votes were cast for the relator and 115 for Harmon W. Taylor, for the office of county clerk. And the respondent alleges that one of the poll books kept at said primary election in said township of Sidney was on file with the relator before these respondents convened as a board of canvassers, and was in his possession when he filed with these respondents a petition for the recount in said township of Sidney; that in his said petition he made no reference to said poll list or poll book, or the numbers of' ballots not appearing thereon, but averred therein that he had received more than 33 votes in said township, and that said Taylor had received less than 115 votes, in substance ; that the votes of said township of Sidney were recounted by these respondents according to the petition of said relator on the 12th day of September, 1912, and that it appeared by such recount that the relator had 33 votes and the said Taylor 115 votes, the recount making no. change from the statement and returns given by the township board of inspectors; that afterward, but while the matter was still before the board, the relator, through his counsel, called attention to the fact that the numbers of ballots given out to voters from time to time were not entered by the clerk upon the poll list opposite the name of the voter, as set forth in the relator’s petition to this court.”

The board acted properly in refusing to reject the vote of the township. The failure of the clerk of the board of election inspectors to properly place the numbers opposite the names of the voters was not the fault of the voters. They did everything required by law, and ah entire township should not be disfranchised because of a mere omission of duty on the part of an inspector. Any other conelusion would enable a corrupt inspector to disfranchise the electors when they were not parties to the fraud.

In the case of Lindstrom v. Board of County Canvassers, 94 Mich. 469 (54 N. W. 281, 19 L. R. A. 171), this court held as follows:

“ It may be stated, as a general rule, that the provisions of law relating to the manner of conducting elections will not be held so far mandatory as that a departure therefrom will result in the disfranchisement of a district or a class of voters, or the defeat of a candidate himself free from fraud, except in cases where the legislative intent that such departure shall have that effect is clearly and unequivocally expressed. This is a rule which has been applied in this State.”

In the instant case there is no claim made of fraud on the part of the candidate, nor does it appear from the language of the primary act that the legislature contemplated that such an omission of duty on the part of the inspector, through no fault of the voter or candidate, should result in the disfranchisement of an entire district.

Relator also claims that the votes in other townships were not properly-counted by the board of canvassers, but, in paragraph 10 of this petition, sets up the following:

“Your petitioner further shows that, had said board of county canvassers not unlawfully rejected said votes cast for your petitioner in the townships of Richland and Evergreen in the manner above set forth, your petitioner and the said Harmon W. Taylor would have the same number of votes each for the republican nomination for county clerk.”

Paragraph 7 of respondents’ answer is as follows:

“ These respondents further say it is true that on the 4th day of October, A. D. 1912, a final computation was made by these respondents of the votes cast for said relator and the said Taylor at said primary election, and in said computation it is also true that the recount of votes in the townships of Bushnell, Douglas, and Ferris were not considered; but that the votes from said townships were included in said final computation and certification as the same were reported by the township boards of inspectors, and that in said computation the board also included the vote cast in the first ward of Stanton, and in the township of Belvidere and the township of Pine as returned by the board of inspectors, and did not consider the result of any recount of said townships, for reasons hereinafter set forth.
“This respondent, however, denies that with the result shown by the recount of said townships included, as alleged by said relator in the seventh paragraph of said petition, the said relator would have had but IB less votes for said nomination than he was shown to have received by the returns of the several boards of primary election inspectors, and also denies that the said Taylor would have had 15 less votes for the republican nomination for county clerk than he was shown to have received by such returns from the townships, and says that on the application of said Harmon W. Taylor the vote in the township of Reynolds was recounted by these respondents on the 6th day of September, 1912, and said recount showed that said relator had received three less votes in said township of Reynolds than he appeared to have received by the returns of the township inspectors; and that the recounts had in the townships of Reynolds, Bushnell, Belvidere, Pine, Richland, Douglas, Day, and Ferris, and the first ward of Stanton and the second ward of Stanton, would show that the said relator gained 1 vote in all of said recounts, and lost 20, including his alleged recount of the township of Douglas, and that the said Taylor by said recounts in said several townships and wards, gained 4 votes and lost 18 votes, and a net loss to the relator of 19 votes, which computation leaves out the 1 vote from Evergreen and the 1 vote from Richland; that if said 2 votes are credited to the relator, and all other correction made according to the result as claimed, the said relator and the said Taylor would stand a tie, but that if said 2 votes, 1 in the township of Richland, and 1 in the township of Evergreen, should not have been counted for the said relator and included in said computation, the said Taylor would have been two votes ahead; that the only action of said board affecting the rights of the parties contestant before said board in any way or manner is the action taken upon the said 2 votes in Richland and Evergreen. And this respondent denies that by its rejection and ignoring of such recount in the townships named in said petition, as well as in the towuships not named therein, the relator was deprived of two votes which should have been credited to him in the board’s final computation and certification of votes cast for him at said primary election; and says that the relator has not laid before this court in the seventh paragraph of his petition a true statement of all the results of recounts in said county.”

As no issue is asked for by the relator, this statement of facts must be taken as true. City of Benton Harbor v. Railway Co., 102 Mich. 386 (60 N. W. 758, 26 L. R. A. 245, 47 Am. St. Rep. 553). There must therefore be eliminated from discussion all other claimed irregularities, with the exception of the two votes in the townships of Richland and Evergreen. The action of the respondents with reference to these two votes is set up in their answer, as follows:

“ These respondents admit that on the 23d day of September, 1912, a recount was had before said board of county canvassers of the republican votes cast at said election for a candidate for the office of county clerk in the township of Richland, but deny that the said board then and there counted, tallied, ascertained, and determined the total vote cast both for said relator and for said Harmon W. Taylor, but say that there appeared in said township of Richland one vote which was properly marked in the square before the name of said relator, but that said vote was not marked with the initials of any inspector, and could not be identified by these respondents as a vote cast at said election; that said Harmon W. Taylor protested against the same being tallied, and the said relator insisted that the same be tallied in his favor; that thereupon these respondents entered a tally mark on their tally sheet representing said ballot, with the understanding that they should consider the matter further, and should determine afterward whether said ballot was legal or not, and whether or not relator was entitled thereto; and that afterwards, being advised that said ballot was not a legal ballot, and the said relator not entitled thereto, these respondents did not include said ballot in their final statement and total of votes cast.
“These respondents further state that on the said 25th day of September, 1912, a recount was had before the board of county canvassers of the republican votes cast for the nomination for a candidate for county clerk at said primary election at the township of Evergreen in said county, but deny that the same was then counted, tallied, ascertained, and determined; but say that it was discovered that among said ballots in the township of Evergreen there was one ballot having a cross mark in the square before the name of relator, and a distinguishing mark, but not a cross, in the square before the name of Harmon W. Taylor upon the same ballot; that said ballot had apparently been rejected by the board of inspectors; that the relator demanded that said ballot be tallied, and that he be given credit therefor, and the said Harmon W. Taylor objected thereto; that the said board did for the time being make a 'mark upon its tally sheet, crediting said ballot to said Abbott, with the understanding that they should consider the matter further; and afterward, being advised that said ballot was not a legal vote for the said W. Glen Abbott, did not include the same in their statement of the aggregate votes in said county, and in their final return of said canvass.”

No claim is made by the relator that the two ballots rejected by the board of county canvassers were legal votes, but he insists that, inasmuch as they were tallied upon the tally sheet, the statement made by the board that they would consider them further must be disregarded, and that the board had no right to change their determination so made. We cannot agree with this contention, and it would seem that it would be the duty of the board to correct any error they had made while regularly in session, if discovered by them before their final adjournment. The board acted properly in making the correction.

The writ prayed for is denied.

Moore, O. J., and Steere, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


author: Brooke, J.

text:
    RITZE v. BOARD OF CANVASSERS OF IRON COUNTY.
    1. Elections — Recount—Primary—Seal.
    The seal being a necessary part of the equipment under the general election law (1 Comp. Laws, § 3617, 1 How. Stat. [2d Ed.] § 217), a ballot box not sealed with an official election seal may not be opened and the votes of the township recounted after primary election for the nomination of probate judge, although the slit in the box was covered with paper fastened on with sealing wax, and the keyholes of the locks were similarly protected, and the papers signed by the chairman of the election board, and although no .evidence appeared that the box had been tampered with or a fraud committed; section two of the primary law (Act No. 281, Pub. Acts 1909, § 2; 1 How. Stat. [2d Ed.] § 506) requiring primary elections to be conducted “as near as may be in every particular as prescribed by law for the regulation and conduct of general elections,” requires the same safeguards against tampering with the ballots as in case of general elections.
    2. Same — Evidence.
    An attempt on the part of the board of canvassers to take the testimony of the primary election officials as to the condition of the box and to compare the poll list with the enrollment book, was wholly unauthorized.
    Certiorari to Iron; O’Brien, J., presiding.
    Submitted October 16, 1912.
    (Calendar No. 25,387.)
    Decided October 23, 1912.
    Mandamus by Claude C. Ritze against the board of county canvassers of Iron county to compel respondents to canvass the votes according to the returns and not to consider the result of a recount. An order issuing the writ is reviewed by respondents on writ of certiorari.
    Affirmed.

      Chas. H. Watson, for appellants.

      Cook & Pelham, for relator.
   Brooke, J.

Certiorari to mandamus. Relator, one Fred H. Abbott, and three others, were candidates for the republican nomination for judge of probate of Iron county at the primary election held on August 27, 1912. After a recount by the board of county canvassers which is not here in question, it was found that relator had a plurality of 17 votes over Abbott, his nearest competitor. Abbott thereupon filed a petition with the board under section 40 of Act No. 281 of the Public Acts of 1909 (1 How. Stat. [2d Ed.] § 544), asking for a recount of the votes cast in precinct No. 1 of the township of Iron river. The statutory requirements were complied with by Abbott, and a recount of the votes cast at said primary election in said precinct was had pursuant to his petition. Relator, Ritze, and his attorney participated in said recount. By said recount it appeared that the ballot box contained 170 votes for said Ritze and 39 for Abbott, instead of 216 votes for Ritze and 47 for Abbott, as had been returned by the board of primary election inspectors of said precinct. This 'recount, if permitted to stand, would give Abbott a plurality of 21 votes over Ritze. Relator then filed his petition in the circuit court in which he set out facts material to the issue here presented as follows:

“(6) Tour petitioner further shows: That on the 10th day of September, 1912, at 10 o’clock a. m. of said day, said board of canvassers of said county of Iron duly convened in the courthouse in the city of Crystal Falls for the purpose of holding said recount, at which time and place said Fred H. Abbott and your petitioner were present, that said board of canvassers ordered the ballot box of precint No. 1 to be brought before it and took testimony over the objections of your petitioner, bearing on the conditions of the ballot box then standing before said board of canvassers.
“(7) That said ballot box was not protected against fraud and alteration and substitution of ballots contained therein, the slit of the box being merely covered with a piece of paper fastened to the box with ordinary sealing wax, the paper bearing the signatures of the members of the primary election board of said precinct No. 1, but no official election seal or other seal of any kind was impressed on said sealing wax, as required by law, so that said paper could easily be removed from said slit and replaced without detection or without breaking a seal.
“(8) That there was a lock on each side of said ballot box. That the keyhole of each of said locks was covered by a piece of paper bearing the signature of the chairman of the primary election board of said precinct No. 1. That said piece of paper on each of said locks was fastened thereto with sealing wax, but that no official election seal, as required by law, or any other seal, was impressed thereon. That nowhere on said ballot box was a cloth, strap, canvas, or piece of paper sealed with sealing wax thereto with the official election seal impressed thereon in such manner that such ballot box could not be opened without breaking such seal.
“(9) That after inspection of said ballot box, said board of canvassers, over the objections of your petitioner, proceeded to open said ballot box and to make a recount of the votes found therein, and announced the result as follows, to wit: ”

Relator prayed for a writ of mandamus commanding the board of canvassers to canvass the vote for the candidates for the republican nomination for the office of judge of probate according to the returns of the inspectors of said primary election of said precinct No. 1, Iron River township.

The verified answer of the members of the board of canvassers contains the following:

“(6) These respondents admit the truth of the allegations contained in paragraph 6 of said petition, but, further answering said allegations, aver that the testimony taken by said board of canvassers, as alleged in said paragraph 6 of said petition, was the sworn testimony of the members of the board of primary election inspectors of said precinct No. 1, from which it appears undisputedly that the ballots in the ballot box of said precinct had not been tampered with and were in exactly the same condition as when said box was sealed up and locked by the board of primary election inspectors of said precinct at the close of the polls on said primary election day, and that the said board of canvassers carefully and closely inspected said ballot box before opening the same, and found that said box had not been opened or in any manner disturbed since the same was locked by said board of primary election inspectors.
“(7) These respondents, in answer to paragraph 7 of relator’s petition, allege that said ballot box was in fact protected against fraud and alteration and substitution of ballots contained therein; that the slit of the box was securely covered with a piece of strong heayy paper, securely fastened to said box with sealing wax; that upon said paper was written in ink the signatures of the members of the board of primary election inspectors of said precinct No. 1; and that said paper could not be removed from said slit and replaced without detection or without breaking the seals thereon, but admit that no seal was impressed upon the said sealing wax, and allege that no election seal or primary election seal or seal of any kind was furnished to the said board of primary election inspectors, and respondents are informed and believe that no such seal has ever been provided for said precinct No. 1.
“(8) These respondents, in answer to paragraph 8 of relator’s petition herein, admit that there was a lock on each side of said ballot box, and that the keyhole of each of said locks was covered by a piece of paper bearing the signature of the chairman of said board of primary election inspectors of said precinet No. 1, and allege that said locks were fastened in such a manner that said box could not be opened without unlocking each of said locks. These respondents admit that there was a strong piece of paper on each of said locks, securely fastened thereto with sealing wax, and that no election seal or any other seal was impressed upon said sealing wax, but allege that said paper was sealed with sealing wax upon each of said locks in such a manner that said locks could not be unlocked without either breaking or removing said paper, and that said paper was sealed on each side of said locks in such a manner that the same could not be removed without detection and without breaking the seals on said locks, and that said paper on each of said locks had not been broken or removed at the time said board of county canvassers opened said ballot box for the purpose of recounting the ballots therein. These respondents further admit that there was no official election seal impressed upon any sealing wax upon said ballot box, but allege that the sealing wax was so placed upon said ballot box that said ballot box could not be opened without detection or without breaking said seal.
“(12) These respondents further say that at the session of said board of county canvassers held on the 18th day of September, 1912, they compared the poll list used in said precinct No. 1 at said primary election with the enrollment book, and found thereby that more than 150 persons voted at said primary election who were not enrolled in said enrollment book, and that all of the votes cast in said precinct at said primary election were republican votes, excepting less than 50, to wit, 48.”

The court below having issued the writ as prayed, respondents have brought the case here for review.

The applicable provisions of the “ Primary Election Law,” so called (Act No. 281, Pub. Acts 1909, 1 How. Stat. [2d Ed.] § 505 etseq.), are as follows:

“ Sec. 2. All primary elections shall, except as herein otherwise provided, be conducted and regulated as near as may be in every particular as prescribed by law for the regulation and conduct of general elections. The provisions of the general election law shall apply to primary elections with respect to the giving of notices of enrollment and election, in' fixing places for holding such elections, providing the ballot boxes with the necessary equipment and supplies, and all officers required to perform similar duties under the general election law shall be required to perform such duties under this act, with like power and compensation.”
“ Sec. 86. After the closing of the polls on the day of holding any primary election, the ballots shall be counted as provided by law for the counting of the ballots of any regular election.
“Sec. 37. After the votes at any primary election in any election precinct shall have been counted, the officials * * * shall return all the ballots voted to the ballot boxes, and all books, unused ballots, supplies, lists and subscribed oaths shall be safeguarded and returned, as near as may be, in the manner provided for by law governing general elections.
“ Sec. 38. The returns of said primary election shall be canvassed and the results declared in the same manner and within the same time after the primary election and by the same officers as is provided by the general law for canvassing the returns and declaring the result in city, county, district and State elections.”
“ Sec. 40. * * * When the recount of each box is completed, the said board shall at once return the ballots thereto, carefully lock and seal the same in the manner provided by law for the locking and sealing of ballot boxes, and deliver the ballot boxes to the officer having the care and custody thereof.”

The general election law (section 8617, 1 Comp. Laws, 1 How. Stat. [2d Ed.] § 217) provides: .

“There shall be provided and kept by the township clerk in each township, at the expense of such township, and in each ward or voting precinct of any city, by the city clerk or recorded at the expense of the city, one or more suitable ballot boxes, with lock and key, which ballot box shall have an opening through the lid of the proper size to admit a single closed ballot, through which each ballot received shall be passed into the box. He shall also furnish a township or ward election seal, which shall contain the name of the township or ward and the words ‘'election seal ’ around the margin thereof, and such other words or device thereon as the township board of the township or common council of the city may prescribe.”

Section 3647:

“Sec. 37. After the ballots are counted they shall, together with one tally sheet, be placed in the ballot box which shall be securely sealed in such a manner that it cannot be opened without breaking such seal. The ballot box shall then be placed in charge of the township or city clerk but the keys of said ballot box shall be held by the chairman of the board, and the election seal in the hands of one of the other inspectors of election.”

The only question for determination is whether the ballot box in question, sealed in the manner indicated by the petition, should have been recounted. If the provisions of the general election law as to sealing are applicable in a primary election, it is manifest that the board of canvassers, should have refused to recount the box in question because confessedly it was not sealed in accordance with the provisions of that law. Under the general election law, a recount can be made only when the canvassing board can determine from an inspection of the box that it has been sealed as the statute requires. Keith v. Wendt, 144 Mich. 49 (107 N. W. 443); Ward v. Culver, 144 Mich. 57 (107 N. W. 444).

It is contended on behalf of respondents that the words, “ as near as may be,” used in sections 2 and 37 of the primary election act, indicate that it was not intended by the legislature to compel an exact following of the general election law in every particular, and that considering the situation and circumstances, no seal having been furnished the precinct election inspectors, they, in sealing the box in the manner indicated, complied with the general law “ as near as may be.” We are unable to agree with this contention. Section 2 of the primary election act provides that the provision of the general election law shall apply with respect to “providing the ballot boxes with the necessary equipment and supplies.” We think it must be held that the seal is one of the most important items of such “necessary equipment.” Aside from this consideration, it is apparent from a perusal of the entire act that it was the legislative intent to surround the primary election with the same safeguards provided for a general election. The use of the words, “as near as maybe,” may be supposed to refer to provisions of the general law which cannot for any reason be made applicable to a primary election. The sealing and safeguarding of the ballot boxes is certainly not such a provision.

The board of canvassers took the testimony of the primary election inspectors, with reference to the condition of the box. They likewise compared the poll list used in said precinct with the enrollment book. They had no authority to do either. Bradley v. Board of State Canvassers, 154 Mich. 274 (117 N. W. 649); Act No. 281, § 40, Pub. Acts 1909 (1 How. Stat. [2d Ed.] § 544).

The writ of certiorari will be quashed.

Moore, C. J., and Steere; McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J. McAlvay, J.

text:
    BOARD OF ELECTION COMMISSIONERS OF WAYNE COUNTY v. WAYNE CIRCUIT JUDGES.
    1. Mandamus — Injunctions—Equity—Adequacy of Remedy by Abbeal — Elections.
    A preliminary injunction against placing on the ballot the name of a candidate for prosecuting attorney to fill an alleged vacancy will not be vacated in mandamus unless the time is so short before election that the injunction will operate in effect as a final determination and no other adequate relief exists.
    2. Elections — Constitutional Law — Primary Elections.
    After the appointment by the Wayne circuit judges, under the authority of section 11, art. 7, of the Constitution, of a prosecuting attorney to fill a vacancy caused by resignation, no notice having been given of any intention to fill the vacancyrat the general election, an interlocutory injunction restraining the election commissioners from printing the name of a proposed candidate nominated by three votes at the primary will not be disturbed in mandamus proceedings; notice of intention to fill the vacancy should be made publio before the primary election. Const., art. 8, § 3, art. 16, § 5; 1 Comp. Laws, §§ 3596, 3597; 1 How. Stat. (2d Ed.) §§ 193, 194.
    3. Same — Prosecuting Attorney.
    Although the appointment filling the vacancy is of a temporary nature, the appointee may continue to perform the duties of the office until the expiration of his predecessor’s' term or the vacancy is regularly filled.
    Mandamus by the board of election commissioners of Wayne county and another against Henry A. Mandell and others, circuit judges of the county of Wayne, to compel respondents to vacate a preliminary injunction restraining relators, the board of election commissioners, from printing the name of Proctor K. Owens on the ballots used in the general election, said injunction having been issued in a suit instituted by the attorney general against relators.
    Submitted October 22, 1912.
    (Calendar No. 25,406.)
    Writ denied October 24, 1912.

      Edward S. Grece (M. F. McDonald, of counsel), for relators.

      Charles T. Wilkins and Arthur W. Kilpatrick, for respondents.
   Ostrander, J.

On or about October 12, 1912, the attorney general filed in the circuit court for the county of Wayne, upon the relation of Hugh Shepherd, an information in the nature of a bill in equity for and on behalf of the people of the State, in which it is charged that at a general election held in November, 1910, Philip T. Van Zile was elected to the office of prosecuting attorney for the county of Wayne for the term of two years, commencing January 1,1911, ending December 31,1912. He performed the duties of said office until September 16, 1911, at which time he resigned the office. The circuit judges of Wayne county on October 4, 1911, made and entered an order appointing Hugh Shepherd to fill the vacancy, and to perform the duties of the office of prosecuting attorney for the county for the time being. Mr. Shepherd took the oath of office, and entered upon the discharge of the duties of the office of prosecuting attorney, and has since performed, and is now performing, said duties. He paid the necessary fee and filed a petition with the county clerk of Wayne county to have his name placed upon the ballot at the primary election held August 27,1912, as the republican candidate for the office of prosecuting attorney for the county of Wayne for the term of two years, beginning January 1, 1913. His name was placed upon the ballot, and at the primary election he was declared to have received the greatest number of votes on the republican ticket for said office for said term. No notice was given to the electors before said primary election was held that a candidate was to be nominated thereat to fill a vacancy in the office of prosecuting attorney for the county, but at the election so held on August 27, 1912, three votes were cast for Proctor K. Owens as the nominee of the republican party for the office of prosecuting attorney for said county to fill a vacancy in such office. These three votes were cast in one voting precinct of the city, were written upon the ballots, and no other votes were cast for any person to fill such alleged vacancy. On the 16th day of September, 1912, the board of canvassers certified to the board of election commissioners that said Proctor E. Owens had received the greatest number of votes cast at said primary election as nominee of the republican party for the office of prosecuting attorney for Wayne county, to fill vacancy, to be voted for at the general election to be held November 5, 1912. Mr. Owens demanded that the board of election commissioners print his name on the ballots to be used at the said next November general election as nominee on the republican ticket for the office of prosecuting attorney for Wayne county to fill vacancy. The board of election commissioners for said county propose and threaten to print or cause to be printed the name of said Proctor E. Owens on said ballots as the republican nominee for the office of prosecuting attorney to fill vacancy. It- is further charged that no notice was given to the electors of the county, and that they were not informed that a candidate was to be nominated at said primary election to fill any vacancy in the office of prosecuting attorney, and there was not any general knowledge or belief or supposition on the part of the voters of any political party that any such vacancy existed to be filled at such general election or at any special election. Republican nominees for county officers nominated at said primary election received votes ranging in number from 13,279 to 20,883. It is alleged that, if the board of election commissioners causes the name of said Proctor E. Owens to be placed upon ballots to be used at the November election, it will be contrary to law, and will result in irreparable injury to the public and to relator, and in damage to the people of the State of Michigan.

It is prayed that said Proctor E. Owens and the board of election commissioners be made defendants and required to answer the bill; that the said three votes certified by the said board of county canvassers to have been cast for the said Proctor K. Owens at the primary election for the office of prosecuting attorney to fill vacancy be declared void; that said Owens be restrained and enjoined from any further proceeding and from making any further demand upon the board of election commissioners of Wayne county with reference to the printing of his name on said ballots; that the board of election commissioners be enjoined and restrained from printing his name upon said ballots as they threaten and propose to do. Upon filing and reading said information of the attorney general, Proctor K. Owens and the board of election commissioners were required to show cause on the 16th day of October, 1912, why the prayer of the bill of complaint should not be granted. The defendants joined in a demurrer to the bill, and on the 16th of October the demurrer came on to be heard and was overruled. By an order made the same day by three of the judges of the Wayne circuit court, sitting in chancery, an injunction issued as prayed for in said bill of complaint. In said order for injunction, it is recited that it is agreed between counsel that the demurrer theretofore filed should be considered as a return to the order to show cause. A motion to dissolve the injunction was denied. Thereupon the board of election commissioners and the said Owens applied to this court, and this court granted an order requiring said circuit judges to show cause why a writ of mandamus should not issue requiring them to set aside the order overruling the said demurrer and to set aside the order granting the said temporary injunction and to dissolve the same. The return to the order to show cause embraces so much of the records, orders, and proceedings of the court below as relate to the matter in question.

The principal subject discussed in the briefs is the jurisdiction of the court of equity in cases like the one presented. That it has jurisdiction to prevent the threatened action of the board of election commissioners of Wayne county is asserted by tbe attorney general and denied by the relators. The matter is not one which ought to be determined in mandamus proceedings, unless the short period of time before the ballots are required to be printed will operate, in fact, to make the temporary injunction which was granted by the court below final and decisive of the main controversy and of the right of Mr. Owens, thus creating an exigency in which there is no other adequate relief. Nor is it important to consider the question of jurisdiction, unless it appears that some right of Mr. Owens is involved or performance of some legal duty by the board of election commissioners is interfered with.

Article 10, § 3, of the Constitution of 1850, provided:

“In each organized county there shall be a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, chosen by the electors thereof, once in two years, and as often as vacancies shall happen, whose duties and powers shall be prescribed by law.”

Article 8, § 3, of the Constitution of 1909, provides:

“There shall be elected biennially in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, whose duties and powers shall be prescribed by law.”

The words found in the old Constitution, "and as often as vacancies shall happen,” are omitted from the new Constitution. We do not intimate there is significance in the change in the constitutional provision. The debates of the convention of 1908 do not indicate that it was desired, or intended, to change the meaning of the provision of the old Constitution. The Constitution also provides (article 16, § 5):

“The legislature may provide by law the cases in which any office shall be deemed vacant and the manner of filling vacancies, where no provision is made in this Constitution.”

The Constitution (article 7, § 11) reads:

" The judges of the circuit courts may fill any vacancy in the offices of county clerk or prosecuting attorney within their respective jurisdictions.”

The same provision appeared in the Constitution of 1850. See Sayles v. Genesee Circuit Judge, 82 Mich. 84, 89 (46 N. W. 29). It is agreed that in September, 1911, upon the resignation of Judge Yan Zile, the office of prosecuting attorney for Wayne county became vacant. The appointment of Mr. Shepherd to fill the vacancy was made pursuant to 1 Comp. Laws, § 1169 (1 How. Stat. [2d Ed;] § 1320). The vacancy having occurred after the commencement of the term of service and more than six months before the next general election, it would have been proper to fill it at a special election (lComp. Laws, § 3596, subd. 4; 1 How. Stat. [2d Ed.] § 193, subd. 4); and, if not earlier filled, then at the coming general election (1 Comp. Laws, § 3597; 1 How. Stat. [2d Ed. ] § 194). There is no statute brought to our notice which makes it imperative that a vacancy in the office of prosecuting attorney shall be filled at the next general election where there has been no special election. There is therefore no "public duty to take notice that such an election will be held. In such a case the intention to supply the vacancy, whether at a special or a general election, must be evidenced by notice. It is the general rule that where the time and place of an election are not fixed by law, and in cases of special elections not occurring at fixed or regular periods, but only upon the happening of a contingency, notice is indispensable and an election held without it is void. Mechem on Public Offices, and Officers, § 176; Moore v. Witherell, 14 Mich. 48. If the statutory notice is not given, there must be such notice, in fact, such general understanding of the electors as to effectually take the place and accomplish the purpose of the statutory notice. Secord v. Foutch, 44 Mich. 89 (6 N. W. 110); Adsit v. Secretary of State, 84 Mich. 420 (48 N. W. 31, 11 L. R. A. 534). No such notice has been given, and, as was said in Secord v. Foutch, supra, “the number of votes cast is conclusive of the general understanding.” In essentials, primary elections are conducted as regular elections are. The primary election law provides that, where a special election shall be called to fill any vacancy in any office the candidates for which are regularly nominated in accordance with the provisions of the act, a special primary election for all political parties shall be held. Act No. 279, Pub. Acts 1911, § 16 (1 How. Stat. [2d Ed.] § 520). This provision is in harmony with the rule which has been stated. If a special election had been called to fill the' vacancy caused by the resignation of Judge Van Zile, a special primary must have been held. So if it was intended to fill the vacancy at the coming general election, notice thereof should have been given before the primary election was held.

In the brief for relators we are referred to the case of Attorney General v. Trombly, 89 Mich. 50 (50 N. W. 744), as authority for the proposition that a vacancy exists in the office of prosecuting attorney for Wayne county which may be filled by the electors. We may admit this, and assume (as the legislature appears to have done) that the appointment to office provided for in article 7, § 11, of the Constitution, is temporary, and in this case conferred no title to the office for a specific term. Nevertheless the appointment was lawfully made, and the appointee may continue to perform the duties of the office until the electors fill the vacancy. No notice has been given of an intention to fill the vacancy in the office at the coming general election, and no general public understanding that it was to be filled at that election is manifest; for which reason no election to fill the vacancy has been held or can be held on November 5th. The votes cast at the primary election for Mr. Owens as a candidate for the office to fill the vacancy were without significance in fact and in law.

The action and orders of the Wayne county circuit court, in chancery, do not deny to Mr. Owens any right, and they interfere with the performance of no legal duty of the board of election commissioners. For this reason, we decline to issue the writ of mandamus to compel the vacation and setting aside of those orders.

Moore, C. J., and Steers, Brooke, Kuhn, Stone, and Bird, JJ., concurred with Ostrander, J.

McAlvay, J.

I concur in the result reached in the foregoing opinion on the ground that, under the provisions of our Constitution quoted therein, the appointment which was made by the circuit judges filled the vacancy in this office for the entire unexpired term. The statutes providing for elections to fill vacancies in office are only applicable where “ no provision is made in this Constitution.”


author: Stone, J.

text:
    COOK v. BOARD OF ELECTION COMMISSIONERS OF CHEBOYGAN COUNTY.
    1. Mandamus — Jurisdiction—Elections.
    Mandamus is not a writ of right, and is not allowed to a party who is at fault or seeking to accomplish an illegal purpose; it issues only in furtherance of justice upon a proper case presented, and the court by the writ will never assist the petitioner to violate a law.
    2. Elections — Primary-Law—Statutes—Parties.
    Votes cast for an enrolled republican as candidate 'on the national progressive ticket cannot be counted, since section 41, Act No. 279, Pub. Acts 1911, 1 How. Stat. (2d Ed.) § 545, provides that votes cast for candidates upon the ballots of one political party when the candidate is enrolled as a member of another shall not be counted.
    Certiorari to Cheboygan; Shepherd, J.
    Submitted October 28, 1912.
    (Calendar No. 25,417.)
    Decided November 2, 1912.

      Mandamus by Charles F. Cook against the board of election commissioners of Cheboygan county to require respondents to place relator’s name on the ballot as candidate for probate judge on the national progressive ticket. An order granting the writ is reviewed by respondents on certiorari.
    Reversed.

      William N. Cross, for relator.

      Victor D. Sprague, for respondent.
   Stone, J.

The writ of certiorari was issued out of this court to review the. action of the circuit court in granting a writ of mandamus against the board of election commissioners of Cheboygan county.

Charles F. Cook, the relator, was enrolled as a republican in the city of Cheboygan under the primary election law. At the recent primary election, he received eight votes on the national progressive ticket for the office of judge of probate of Cheboygan county; that being the highest number of votes cast for any person for that office on that ticket. The board of county canvassers declared him nominated, and certified his name to the board of election commissioners of said county. The board of election commissioners refused to place his name on the election ballot on the ground that, having been enrolled as a republican, the votes cast for him on the national progressive ticket could not be counted under section 41 of the primary election law (section 41, Act No. 279, Pub. Acts 1911, 1 How. Stat. [2d Ed.] § 545), and that he is not entitled to have his name placed on the election ballot. Mandamus was brought in the circuit court against the board of election commissioners to compel such board to place the name of Charles F. Cook on the election ballot, and the circuit court granted the writ. In its order granting the writ of mandamus appears the following:

“This matter comes on to be heard on petition and answer, and after hearing arguments for the respective parties by their counsel, it appears to the court, and the court determines that relator never was enrolled as a member of the national progressive party, but was, and is, enrolled as a republican.”

It is provided in section 41, supra, as follows:

“All votes cast for any candidate upon the ballots of one political party, when such candidate is enrolled as a member of another party, shall not be counted. * * * If shall be unlawful for any board of election commissioners to print on any official election ballot prepared for the use of voters at any November, spring, charter or other election the name of any candidate, unless such candidate was selected under authority of this act.”

Upon the above statement of facts, and the finding of the circuit court, and in view of the statute just quoted, the important question is whether the relator was entitled to the writ of mandamus against the board of election commissioners. We must answer this question in the negative. It must be held that the relator was not selected as a candidate of the national progressive party under authority of the act, because he was enrolled as a republican, and votes cast for him could not be counted.

It was held by this court at an early day that, to entitle a relator to the writ of mandamus, he must show a clear legal right thereto. People, ex rel. Monroe, v. Wayne Circuit Judge, 19 Mich. 296-299. We have also held that the writ of mandamus is not a writ of right, and is not allowed to a party who is at fault or seeking to do an illegal thing. People, ex rel. Mabley, v. Judge of Superior Court, 41 Mich. 31 (1 N. W. 985). We have also said that the writ will be allowed only in furtherance of justice, and upon a proper case presented. Hale v. Risley, 69 Mich. 596 (37 N. W. 570). It has been held that the writ will not be granted to accomplish a confessedly illegal purpose, even though the officer against whom it is invoked is charged with an express duty under the statute. Board of Sup’rs of Cheboygan County v. Township of Mentor, 94 Mich. 386 (54 N. W. 169). We have held that the writ will not issue to enable a relator to accomplish a violation of the statute. Citizens' Life-Ins. Co. v. Commissioner of Insurance, 128 Mich. 85 (87 N. W. 126). In MacKinnon v. Auditor General, 130 Mich. 552 (90 N. W. 329); this court held that the writ will not issue unless it be made to appear that justice requires it. See, also, Preferred Tontine Mercantile Co. v. Secretary of State, 133 Mich. 395 (95 N. W. 417); Rose v. Common Council of Ann Arbor, 134 Mich. 102 (95 N. W. 1133); George N. Fletcher & Sons v. Alpena Circuit Judge, 136 Mich. 511 (99 N. W. 748); Fuchs v. Grass Lake Common Council, 166 Mich. 569-575 (132 N. W. 96). This rule is as applicable to the circuit court as to this court, as has been frequently held.

In view of the statute which we have quoted, and of the fact that all votes cast for the relator upon the ticket indicated were illegal, and should not have been counted, can it be said that he has any legal right to the writ of mandamus? We think not. To issue the writ under such circumstances would be to offer a premium for a violation of this express provision of the statute. By the conceded facts in this case the relator has shown himself to be without legal right. The writ of mandamus should not have been issued.

The order and judgment of the circuit court is reversed, and the petition of the relator for the writ of mandamus is dismissed, with costs to the respondents against the relator.

Moore, C. J., and Steere, McAlvay, and Ostrander, JJ., concurred.


author: Moore, C. J.

text:
    BRUCE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Railroads—Negligence—Statutes.
    Act No. 104, Pub. Acts 1909, 2 How. Stat. (2d Ed.) § 4110, which abolishes the fellow-servant doctrine as to common carrier railroads, and permits recovery if the negligence of plaintiff was of lesser degree than that of his co-employés, changes the common-law rules relating to contributory negligence as heretofore applied in this State, and permits a recovery if the fault of plaintiff was less than that of defendant’s servants: the provision does not mean that a plaintiff chargeable with contributory negligence can only recover if defendant was guilty of gross negligence. The language of the proviso, section 2, has no reference to the three degrees of negligence as known at common law.
    2. Same — Assumption op Risk — Contributory Negligence.
    Under the provisos of section two of the act, the defenses of contributory negligence and assumed risk are not available, if the failure of the defendant to comply with statutory provisions for the safety or protection of employés caused the injury, or if the negligence of plaintiff was less than that of defendant.
    8. Same — Trial—Argument.
    In arguing the case to the jury, plaintiff’s counsel did not commit error requiring the reversal of the case, in attempting to argue matters not sustained by the evidence, where the court interposed and corrected the statement, which plaintiff’s attorney promptly withdrew.
    4. Same — Railroads—Rules.
    Plaintiff, who was injured while at work in a cinder pit underneath a locomotive, which was started without warning, was not barred from recovering by a rule of defendant that foremen and car repairers or other workmen of the car department must display a flag before commencing to work about or under cars, since he was not employed in such department and was not a foreman or car repairer.
    Error to Bay; Collins, J.
    Submitted January 2, 1912.
    (Docket No. 1.)
    Decided November 8, 1912.

      Case by George Bruce against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.
    - Cooley & Hewitt (Humphrey & Grant, of counsel), for appellant.

      Hall, De Hoe & Henry (L. P. Coumans, of counsel), for appellee.
   Moore, C. J.

This is an action brought by the plaintiff for damages alleged to have been sustained by him while in the employ of the defendant company. His right arm was cut off by the wheel of a locomotive tender while he was at work in an ash or cinder pit, a sketch of which is shown on the following page.

He bases his right to recover under the provisions of Act No. 104 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] § 4110). The only negligence claimed and for which recovery is asked is the moving of an engine from the cinder pit in the yard toward the roundhouse without ringing the bell before starting the engine. The plaintiff recovered a verdict on which judgment was duly entered for the sum of $4,457. The case is brought here by writ of error.

Neither counsel discuss in the brief the question of the constitutionality of the law, and for that reason we make no further reference to that phase of the case. The claim of defendant is stated in part as follows in the brief:

“It is the contention of defendant in this case, through its attorneys,, that, briefly stated, this statute is simply declaratory of the common law as it now exists in this State, under the decisions of this court, with the single exception that the statute takes away the defense of contributory negligence where the duty violated by the defendant, which causes the injury, is a statutory duty enacted for the benefit of its employés.”

Counsel then quote from the act, and argue that the degrees of negligence were used advisedly. We again quote from the brief:

“ It is the contention of defendant that this provision of the statute is merely declaratory of the law as it existed before the passage of this act, and that is, that by the use of the term ‘ degree,’ in speaking of negligence, such lan-

guage was used in its ordinary acceptation and meaning; that through the decisions of this court negligence is understood to be of two degrees in Michigan — ordinary negligence, and what is known as gross negligence. This statute, being declaratory of the common law, meant that, if the defendant was guilty of gross negligence, the plaintiff’s ordinary negligence would not bar recovery.”

It is also argued that if the negligence of both was ordinary, or if both were guilty of gross negligence, there could be no recovery. These propositions are argued at great length; counsel citing authorities. It may be well to quote here the provisions of Act 104 which are germane to this discussion. The provisions of section 1 are broad enough to establish liability whenever negligence on the part of the defendant occurs. Section 2 reads as follows:

“ In all actions hereafter brought against any such common carrier railroad company under or by virtue of any of the provisions of this act to recover damages for personal injury to an employé, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery: Provided, That the negligence of such employé was of a lesser degree than, the negligence of such company, its officers, agents or employés: Provided further, That no such employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier railroad company of any statute enacted for the safety of employés contributed to the injury of such employé, and such employé shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.”

It will not be necessary to quote the other sections of the statute.

The important questions are, what do the provisos in the section mean? It is said that, when taken in connection with the other provisions of the act, they are declaratory of the common law. If that was the sole purpose in enacting the law, why was the legislature to the trouble of passing the statute at all? The decisions of this court had declared what the common law is in almost every conceivable case which could arise between a common carrier railroad company and its employés, and, if this statute did nothing more, the work of the legislature in its enactment would seem to be unnecessary. The word “degree” in the first proviso would seem to be the source of much trouble. We think, reading the act as an entirety, we should get at the meaning of the legislature, if we read the first proviso as though it read as follows: Provided that the negligence of such employe was less than the negligence of such company, its officers, agents or employés. This was the construction of the trial judge, and we think it the proper construction. A reference to any standard dictionary for a definition of the word “ degree ” will show that this construction of the meaning of the proviso is not at all forced.

The second proviso of section 2 is also the source of trouble. It is said: The defenses of contributory negligence and assumed risk on the part of the plaintiff are not available as defenses, where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé, but that they are available as defenses in all other cases. This is not our interpretation of the statute. We gather from the language of the statute that these defenses are not available at all in cases where the violation of any such statute contributed to the injury or death. Nor may they be urged if the negligence of the employé is less than the negligence of the company, its officers, agents, or employés, while they are available if the negligence of the employé is not less than the negligence of the company, its officers, agents, or employés. This construction, it seems to us, harmonizes all the provisions of the statute.

A group of assignments of error relate to the argument of counsel. It is said:

“The effect of this language upon the jury must be apparent as tending to inflame them against a railroad company so unmindful of its employés as to violate the rules made by it for the safety of its employés and running over them when their danger was known to the company or those in charge of its engines.”

As to this phase of the case, the record discloses the following :

“During Mr. Couman’s argument to the jury the following occurred:
‘‘Mr. Coumans: Why did the man Davis, down there with his men, not have a flag out? Because he knew that the people on that engine paid no attention in God’s world to a flag. They don’t look for it, and a man standing on the ground—
Mr. Humphrey: Note an exception to that.
The Court: There is not a particle of testimony to that effect.
“Mr. Coumans: I will withdraw it, if there is no testimony. I understood him to say that.
The Court: The testimony don’t show it.
Mr. Coumans: I will withdraw the proposition.
Mr. Humphrey: Give us an exception to it.
“ MA Coumans: Now, I ask you in all fairness what good is it'going to do any man to ring a bell if that engine is coming onto him with such force that he could not get out of the way, even if he heard the bell ring ?
The Court: Mr. Coumans, your claim of negligence is that the bell was not rung. It is highly advisable for you to keep within your case, if you wish to sustain a verdict in this court.
Mr. Coumans: Under that, we are entitled to recover unless our negligénce was such, as I undertand the court will charge you, grosser than what theirs was under that particular circumstance. Greater negligence—
Mr. Humphrey: I take exception to that.
Mr. Coumans: To what ?
Mr. Humphrey: It has not got to be greater. It is equal or greater.”

The jury were told in the charge in various ways that, if the negligence of the plaintiff was equal to or greater than the negligence of the other employés, he could not recover. We think the trial court took care of this feature of the case.

The following exhibit was offered in evidence:

“Michigan Central Railroad Co.
“Car Department.
“Special Notice.
“To Foremen and Car Repairers:
“Car repairers and other employés of this department, who have occasion to work on or about cars, are strictly forbidden to commence work on any car, the nature of which might require them to place themselves in a position on, under or about the car, whereby its movement on the track would result in injury to them, without first properly protecting said car with a blue flag or flags by day or blue lights at night. Any employe disobeying the above order will be liable to instant discharge.
“Foremen are instructed to rigidly enforce the above order, and to keep a supply of blue flags and lanterns for that purpose constantly on hand.
“Foremen are also instructed to provide each of their car repair men with a copy of this notice, to fully explain it to them and to procure their acknowledgment thereof on this blank.”

Neither the plaintiff nor the foreman put out a flag. It is said this special notice applied to the plaintiff, and for that reason he cannot recover. When hurt, he had not commenced work upon any car, nor was he about to do so. He was not employed in the car department. He was neither foreman nor car repairer. We do not think this rule or notice applied to him.

The case was carefully tried and submitted to the jury in a clear and intelligent charge.

The judgment is affirmed.

Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Bird, J.

text:
    ARENDS v. GRAND RAPIDS RAILWAY CO.
    Master and Servant — Street Bailways — Common Carriers— Fellow-Servant — Statutes—Words and Phrases.
    Street railways, being common carriers, are within the provisions of Act No. 104, Pub. Acts 1909, 3 How. Stat. (3d Ed.) § 4110, which abrogates the fellow-servant doctrine as a defense; the terms “common carrier railroad company,” as employed in the statute, include corporations operating as common carriers by electricity.

    Error to the Superior Court of Grand Rapids; Stuart, J.
    Submitted June 17, 1912.
    (Docket No. 101.)
    Decided November 8, 1912.
    Rehearing denied January 3, 1913.
    Case by Richard Arends against the Grand Rapids Railway Company for personal injuries. An order sustaining a demurrer to plaintiff’s declaration is reviewed by plaintiff on writ of error.
    Reversed.

      JEJ. A. Maher, for appellant.

      Kleinhans & Knappen, for appellee.

      As to whether a street or interurban railway is affected by abrogation of fellow-servant rule as to “railroads,” see note in 17 L. R. A. (N. S.) 117.

   Bird, J.

While in the service of defendant, as a conductor on one of its street cars in the city of Grand Rapids, the plaintiff was injured. He concedes that his injuries arose through the negligence of the motorman, his fellow-servant, but insists that his case does not fail for that reason, because -it comes within the fellow-servant act, No. 104 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] § 4110). The contention of defendant is that the act applies only to railroads that are incorporated under the general railroad act, and that it has no reference to street railways. The sole question, therefore, presented for our solution is whether the act applies to street railways.

The title of the act is, “ An act to prescribe the liability of common carrier railroad companies to their employés.” The express language of section 1 of the act makes it applicable to “every common carrier railroad company in this State.” It has been many times held by the courts that the term “railroad ” is broad enough to include street railways. Johnson’s Adm’r v. Railway Co., 10 Bush (Ky.), 231; Lieberman v. Railroad Co., 141 Ill. 140 (30 N. E. 544); Stillwater, etc., R. Co. v. Railroad Co., 171 N. Y. 589 (64 N. E. 511, 59 L. R. A. 489); Rafferty v. Traction Co., 147 Pa. 579 (23 Atl. 884, 30 Am. St. Rep. 763); Katzenberger v. Lawo, 90 Tenn. 235 (16 S. W. 611, 13 L. R. A. 185, 25 Am. St. Rep. 681); Savannah, etc., Railway v. Williams, 117 Ga. 414 (43 S. E. 751, 61 L. R. A. 249). The last case cited is especially interesting because the act there construed was one which made railroad companies liable to one servant for injuries inflicted by the negligence of a fellow-servant. It has also been held that street railways are common carriers. 36 Cyc. p. 1348; 5 Am. & Eng. Enc. Law (2d Ed.), p. 481.

I am of the opinion that this construction should prevail in this case, inasmuch as there is nothing in the context of the act to indicate that it is to be restricted to any particular class of common carrier railroads. Had the legislature simply used the word “ railroad ” instead of “ every common carrier railroad,” there might be room to argue from previous legislation in this State that it had reference only to the general railroad act, but, when it in express words includes every common carrier railroad, we must assume that the legislature intended it to include street railroads. This construction seems to be strengthened by section 3 of the act, wherein the legislature itself undertook to define what it meant by the term “ railroad company: ”

“Sec. 3. The words ‘railroad company,’as used in this act, shall be taken to embrace any company, association, corporation, company, or person managing, maintaining, operating, or in possession of a common carrier railroad in whole or in part within this State,” etc.

It is clearly indicated by this section that the term “railroad company” was not to be construed as applying to compánies incorporated under the railroad act only, but was intended to apply to every railroad which is a common carrier. The object of this legislation was to change the fellow-servant rule, and make all companies or persons coming within the act liable to their servants for personal injuries inflicted on them by the negligence of their fellow-servants. No good reason suggests itself why the act is not as applicable to street railways as steam railways. Counsel argue that the difference in construction, operation, rolling stock, and motive power furnishes a reason for saying it applies to one, and not the other." This argument would have had more force in the early days of street railways, when these differences were more marked than they are at the present time. With the adoption of a dangerous motive power, heavier rolling stock, and increased speed by the. street railways, has come an army of employés who are daily subjected to hazards not unlike those encountered on steam railroads. It is not unreasonable to assume that the legislature, in the passage of this act, recognized these changes, and the added risks which have come with them, and used the term “every common carrier railroad” to include them within the protection of the act. If the legislature did not so intend, it was most unfortunate in using a term within which street railways could be so easily included. Further, it is reasonable to conclude that, had the legisla-, ture not intended the act to apply to street railways, it would have made an exception of them. It failed to do so, and it is not the province of this court to make an exception where the legislature has made none. The rule of construction is that the exception, if any, shall appear in the act. Johnson’s Adm’r v. Railway Co., 10 Bush (Ky.), 231.

The judgment of the trial court will be reversed, and, as the question was raised by demurrer, the defendant will be given an opportunity to plead.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.


text:
    DEAKE v. UNITED STATES EXPRESS CO.
    1. Evidence — Carriers—Freight—Negligence.
    Upon the issue whether the inherent vice or nature of a calf was the cause of its breaking the crate and escaping while in transit, testimony was material and competent tending to show his gentleness of disposition, and that such an animal did not usually become vicious until it was older.
    2. Same — Negligence.
    Where the testimony showed that the crate in which a calf was shipped was apparently strong, that the animal had been carried without accident from Ypsilanti to Detroit, where it became excited and vicious, and in turning around broke the crate, which was too large, and escaped, that defendant had carried other calves in similar crates for plaintiff, defendant was entitled to the direction of a verdict, as the evidence did not show negligence in accepting the animal in an insufficient crate, or negligence in failing to tie the calf to the crate.
    Error to Washtenaw; Kinne, J.
    Submitted April 8, 1912.
    (Docket No. 69.)
    Decided November 8, 1912.
    Case in justice’s court by Clayton E. Deake and another against the United States Express Company for the loss of a bull calf in transit. The cause was appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Reversed, and new trial denied,

      JEJ. B. Norris, for appellant.

      J. F. Lawrence, for appellees.
   Kuhn, J.

This action was brought to recover the value of a bull calf shipped by plaintiffs from Ypsilanti for delivery to one Gardner at Barryton, Mich. It was agreed that the calf was of the value of $80, and freight was paid on that valuation. The calf escaped at the city of Detroit on the evening of the 9th day of March, 1911, and was not delivered to Gardner nor returned to the plaintiffs. The calf was delivered to the defendant in a crate constructed by plaintiffs, at which time they received a receipt for the calf, and signed a live stock contract, section 6 of which contains the following:

“The shipper hereby agrees that the responsibility of the express company shall be that of a forwarder only, and not that of a common carrier, and that the express company shall not be liable for the conduct or acts of the animals to themselves or to each other, such as biting, kicking, goring or smothering, nor for loss or damage arising from the condition of the animals themselves, or which results from their nature or propensities, which risks are assumed by the shipper. The shipper hereby releases and discharges the express company from all liability from delay, injuries to or loss of said animals and paraphernalia, from any cause whatever, unless such delay, injury or loss shall be caused by the negligence of the agents or employes of the express company, and the shipper agrees that in no event shall the liability of the express company exceed the following amounts.”

The calf went safely from Ypsilanti to Detroit over the electric line, and was transferred to the Union station for shipment over the Pere Marquette Railroad to Barry-ton. When the calf arrived at the Union station, one of the defendant’s employés moved a hand truck to the express wagon backed to the platform, and, having mounted' the express wagon in front of the calf, placed his hand on the crate, intending to draw the crate and the calf off the express wagon to the hand truck, when the calf made a lunge towards him, and then, striving to turn about in the crate, broke the crate, and fell off the express wagon to the ground, and, regaining his feet, ran down Third street, and was wholly lost.

The calf was 10 months old, and weighed about 400 pounds. The crate was made after the pattern of one received by plaintiffs from Pennsylvania, and, when they delivered it to defendant, they considered it was a safe and secure crate, but, upon seeing it upon the dock, thought it was a little too large. They have shipped two other animals.

“ I shipped one to Sturgis, Mich., and also one to a place beyond Lansing. The bull I shipped to Sturgis was five to six months old, and the one shipped to Lansing was just a little over a year old. I shipped them in crates by the United States Express Company.”

One of defendant’s witnesses testified:

“ They drove up there with the wagon, and this crate on the wagon. The calf was not tied in the crate, and the crate was a little large. The calf could turn around and get a pry on the crate, not clear, around, but partly around. He did turn partly around, and, as soon as pressure was made on the crate, it went to pieces. * * * The driver attempted to get up on the wheel to push him off, and he tried to turn around to get the driver, and burst the orate.
Q. Can you state what the condition of this bull was at this time, as to excitability or viciousness ?
“A. He was in a very high state of excitement, very vicious.”

Another testified:

“ Q. State how the bull appeared to you ?
“A. He acted vicious when he came there, when I got onto the truck he made for me.
CiQ. In a mild or savage manner ?
“JL In a savage manner. * * *
“Q. You think he turned around and broke the crate ?
“A. Yes, sir.
“Q. So that crate was too large, was it ?
“A. A little bit.”

Defendant’s witness H. D. Schantz testified:

“ I live in Detroit. I am master of transportation of the United States Express Company, and I have been in that position for a year and a half. It is the custom of the defendant when it transports animals to have the shipper crate them. It is our custom and practice not to tie animals in the crate for the reason that the animal is liable to choke itself. * * * We are not in the habit of accepting animals not crated. I would have refused to accept the animal if it had not been crated. If the crate was not properly put up, I would have refused to accept it. If the crate was a good substantial crate, we would have paid no attention to the size of it.”

Plaintiffs gave testimony tending to show that this bull calf was quiet and gentle on the farm, and that a bull did not become ugly until two years of age.

At the close of the testimony, counsel for defendant made the following motion:

“I ask the court to direct a verdict for the defendant for the following reasons:
“ (1) The defendant was not an insurer of the animal that was shipped from Ypsilanti to Detroit, and is only liable to ordinary care and diligence.
“ (2) There is no evidence in the case that goes to prove that the defendant is guilty of any negligence whatever.
“It appears by the unccntradicted evidence in the case that the bull became excited and broke from the crate and ran away. This act on the part of the animal was an inherent vice and proper to his nature and the defendant is - not liable therefor.”

The motion was denied and exception taken. The case was submitted to the jury and a verdict returned for plaintiffs.

Defendant relies for a reversal upon the first, second, and seventh assignments of error.

“First. The court erred in allowing the witnesses Oliver L. Deake and Mrs. Clayton Deake to testify as to the disposition of the bull calf while on the farm of the plaintiffs.”

It is argued that the character and conduct of the bull upon the farm had no bearing upon whether he became ugly and vicious when he arrived at Detroit. We think the testimony was material upon the question whether the conduct of the bull at Detroit was due to an innate vicious tendency, or to the natural inclination of a confined animal to escape, particularly when being handled by strangers in a wholly unaccustomed manner.

Second. The court erred in refusing to grant the motion made by the defendant.

The court substantially instructed the jury that defendant was not liable as an insurer, but was only required to use ordinary care and diligence. The court further instructed the jury as follows:

“ The express company is not an insurer against loss and injury resulting from the inherent nature, viciousness, or habits of the,animals themselves. In the transportation of live stock, the rule of liability is varied somewhat, yet the defendant is always bound to take notice of and recognize the known habits, propensities, and disposition of the animals, and that they will constantly endeavor to escape and they may escape, and the carrier is bound to take measures and use all reasonable effort to prevent injury or escape; and, if the injury or escape of any such animal could have been prevented by ordinary care, then the defendant would be liable. Where it is contended that the loss, injury, or escape was the result of the vice of the animal so being transported, then it must be made to appear that such vice of the animal was the sole proximate cause of such loss or injury. Now, gentlemen, there has been some evidence that there was a shipping contract made between the parties here at the time of the shipment. I don’t think that is of any particular importance in this case, and I say to you, if no contract of this kind had been made between the parties, nevertheless the defendant would not be liable if the bull broke the crate by reason of his inherent vice and propensity.”

If there was any negligence upon the part of the defendant, it consisted in accepting the calf improperly crated or in failing to properly tie the calf in the crate. As to the crate, counsel for plaintiffs say:

“No one contended that the defendant had furnished or was obligated to furnish the shipping crate in question, only this and nothing more. The defendant, if it found the crate on inspection to be insufficient, was bound to reject the shipment or abide the resulting consequences.”

Plaintiff Clayton Deake testified:

“ When the bull got to Ypsilanti, after being transported from my farm, he got a little nervous. He seemed to be all right while I was transporting him, and his condition when I left him at Ypsilanti was all right, for he had quieted down. I helped put him on the car. One of the express company’s men assisted me. All the railroad men were there. He was a little nervous when he got to Ypsilanti. He tried to get out of the crate, and tried to turn around.
“ Mr. Norris: The crate seemed to be strong enough to hold him ?
“A. It did hold him.
iCQ. He did nothing at Ypsilanti which would indicate that your crate was not sufficient to carry him through to Detroit ?
“A. No, sir. I believe one of the express company’s men was there when I put the calf in the car. The agent did not tell me to put him in the car, but that was according to the contract. I helped load him, but the consignee was to help unload him. What I saw there did not excite in my mind the necessity for taking any further precautions about the crate in any way. One of the defendant’s men knew about whatever was exhibited there.”

There was no defect in this crate other than its size, and, when the calf “tried to get out of the crate and tried to turn around ” it held him, and plaintiff Clayton Deake did not think there was any necessity “fortaking any further precautions about the crate in any way.” Instead of supporting a finding of negligence in accepting the crate, the plaintiffs’ testimony tends to disprove such negligence. The defendant had carried a calf to Sturgis and one to Portland for plaintiffs, in similar crates constructed by plaintiffs, “without injury to the animals. It carried the calf in question safely to Detroit, and failure to tie the bull after arrival at Detroit, where it was noticed it was restless and excited, and practically at the same time broke away, is not, in our opinion, an act of negligence on the part of the defendant. The circuit judge should have granted defendant’s motion to direct a verdict on the ground that there was no evidence in the case to prove that the defendant was guilty of any negligence whatever. It is unnecessary, in view of the foregoing, to consider the other assignments of error.

Judgment should be reversed, and no new trial granted.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.