author: Hooker, J. Ostrander, J. McAlvay, J.

text:
    KERN v. BOARD OF SUPERVISORS OF ST. CLAIR COUNTY.
    1. Intoxicating Liquors — Local Option — Conolusiveness of Petition to Submit — Statutes.
    Mandamus does not lie against a board of supervisors who have refused to determine the genuineness or fraudulent character of signatures to a petition for the submission of the question of adopting prohibition, to compel them to consider the issues of fact involved in the qualifications of the petitioners, or the genuineness of their signatures, and the affidavit required to be annexed to the petition is conclusive of such issues. 2 Comp. Laws, §§ 5414-5417. Act No. 183, Pub. Acts 1899.
    2. Same — Petition—Withdrawal or Removal of Names.
    A petitioner may not have his name removed after the petition is filed, when the signature was genuine and voluntary.
    3. Same — Mandamus — Adjournment of Board of Supervisors.
    In a proceeding for review by certiorari of a denial by the circuit court of mandamus to require the board of supervisors to determine such issues of fact, the Supreme Court will order the issuance of a writ to compel the board which adjourned sine die without determining to submit the question to a vote, to reconvene and pass on the petition.
    Certiorari to St. Clair; Ersbine, J., presiding.
    Submitted January 11, 1910.
    (Calendar No. 23,726.)
    Re-argued February 7, 1910.
    Decided February 11, 1910.
    Mandamus by Christian Kern to compel the board of supervisors of St. Clair county to investigate the sufficiency of petitions asking for the submission to the vote of the people on the question of prohibiting the manufacture and sale of intoxicating liquors. An order denying the writ is reviewed' by relator on writ of certiorari.
    Affirmed.

      John B. McUwain and Joseph Walsh, for relator.

      IP. B. Brown, Prosecuting Attorney, for respondents.
   Hooker, J.

Proceedings under the local-option law had reached the stage where a committee of the board of supervisors, to which the matter had been referred, reported that it had counted the names on the petitions and found 4,402 names, and had found from the records of the last preceding general election that the vote for governor was 11,794, being the largest number of votes cast for any person at said election. This report also stated that the committee had been advised by the prosecuting attorney that the committee had no power to inquire into the legality of the petitions or to determine whether the names thereon were those of legal resident voters in the county. A member of the board offered a resolution of determination and declaration of the sufficiency of the petition, and ordering and directing an election as prayed. Before a vote was reached, an order to show cause was served upon them, and the matter was heard upon a return before the circuit court, where the mandamus prayed was denied, and the case is before us by certiorari. The petition prayed a command that the board:

(а) Investigate whether said petitions have been posted as required by statute.

(б) Examine all petitions, and ascertain whether the names have been placed thereon by the respective persons whose names appear.

(c) Examine into the question whether the signers were qualified electors of the several and respective townships and wards alleged.

We understand that the board was ready and intended to proceed and determine the question of the adoption of the resolution, when restrained by the circuit court order. It would seem, therefore, that no mandamus is necessary to command that. What relator asked and claims to have been denied appears to be that the board “investigate and determine whether the several petitions filed before it were in fact signed by the requisite number of qualified electors, and whether the petitions had been properly posted, and to permit relator to offer proof in respect thereto.” This does not seem to be entirely accurate, for we infer from relator’s brief that the board recognized the requirement that they examine and decide all of those questions, but maintained that the affidavits and records filed were conclusive upon such questions, and that they were not open to the production of proof by interested parties, or to any sort of an inquiry judicial in its nature when such persons could offer testimony on the subjects, and be heard or represented by counsel.

The sections of the local-option law involved in this case are found from 5414 to 5417, inclusive, of the Compiled Laws, as amended by Act No. 183, Pub. Acts 1899. The design of the act is to provide a means and prescribe the method by which counties can have a prohibitory liquor law substituted for the general liquor law within their respective confines. It provides (1) the requirements necessary to get the county clerk to call a meeting of the board; (2) the requirements justifying actions by the board. It was necessary that petitions duly verified asking submission be seasonably posted and presented to the clerk with sworn proof of posting. It was necessary that petitions be signed by not less than one-third of the qualified electors of the county. We are of the opinion that a clerk might lawfully refuse to report the proceeding to the board in a case where the petition on its face fails to comply with the requirements of the law, and, if mistaken in his refusal, no doubt a writ of mandamus would compel action. Moreover, we have no doubt that it would be proper to investigate the question of whether one-third of the electors had signed before reporting to the board, but such investigation would have to be confined to ascertaining from a comparison of the number of names on the petition with the number on the records mentioned in the statute whether the petition contained such number of electors; the affidavit attached to the petition being conclusive of the number and qualifications of the persons signing and the poll list or canvass of votes conclusive of the number required, for the law thus limits the inquiry. The law does not give him the authority to remove names or add names, nor does it permit him to hear proof and determine the actual status of the signer, nor can he investigate any question of fraudulent signing. He must be governed by the affidavit as to the posting. In short, this section prescribes the tests that he may apply in determining his duty in the premises. See sections 3, 5, Act No. 183, Pub. Acts 1899. Having reported to the board and filed the required documents, it devolves upon the board to review the clerk’s action, and finally determine from the face of the papers and records whether the requirements of the law have been complied with. Having determined this, they have no discretion. If they find that the law has been complied with, they must call the election.

How are they to determine this ? The law points out specifically how, just as it does in the case of the clerk. Section 5417 says:

“When upon examination it shall appear to the said board, upon the face of said petitions, and by the transcripts of the poll lists, or by reference to the returns and canvass of the last general election, that such submission of said question has been prayed for by the requisite number of electors, as hereinbefore provided, they shall, by resolution, determine,” etc.

Where do we find the authority to change the test by the addition of the words,

“And shall find by extrinsic proof that none of such names is the name of one not an elector and that there was no omission to post any or all of said notices, and that none of the persons whose names appear has died or removed and that there have been no names fraudulently signed ? ”

It is suggested that the' affidavits of genuineness of signatures, and of posting the required notices, are only prima facie evidence of those facts. Grant that it would not be conclusive in courts of justice in some cases, is it merely prima facie evidence ? It is certainly substantial evidence whether perjury could be predicated upon such affidavits or not (3 Comp. Laws, § 11306) — a question we do not discuss — and in our judgment it was entirely competent for the legislature to make it conclusive evidence of the facts required, if thought advisable. They evidently did think it advisable for that is what was said.

We must not lose sight of the object of this law. It was to take the sense of the community as to the application of one or another law relating to the sale of liquor, not in the interest of individuals, but of the public. There was an evident intention to avoid expense and disturbance of existing conditions lightly, and the legislature made certain requirements a preliminary to action. It might have fixed this or any of many other methods of testing the desire for an election, and might have gone to great lengths in ascertaining it with certainty. It might have omitted this test altogether, or it might, as it did, provide an easy and inexpensive and expeditious method of ascertaining, with a reasonable degree of certainty, how general such a desire is, without submitting the matter to a sort of judicial inquiry before the board or courts of justice to ascertain whether there was a technical want of compliance or a fraudulent attempt to secure action, of neither of which was there any great probability. We consider this a ministerial matter from beginning to end. The legislature carefully pointed out the procedure, and to our minds as plainly indicated an intent that it should not be subjected to the delays and obstacles that might be devised by persons interested in preventing a vote upon the question. Where the very worst that can happen is the taking a vote of the people upon a question of general interest, there is no serious objection to legislative action providing for a somewhat summary means of ascertaining the desire for such vote. It may be that fraudulent and careless practices may interfere with the satisfactory working of this law, but we do not anticipate such result. In that case, further legislation will take care of it.

It is strenuously urged that one desiring to have his name removed from a petition should be permitted to do so. We have not passed on that question further than to say that he could not have his name removed after the petition had been filed when his signature was genuine and voluntary. It is also insisted that, where a name has been fraudulently signed or procured, there must be some way of correcting the fraud, and that necessarily the board of supervisors must have that power, because it is lodged nowhere else. Section 4 (2 Comp. Laws, § 5415) of the act provides that, to enable electors to ascertain whether their names have been fraudulently signed, the petitions must be posted, and this is relied on as the ground for the argument that the board must have the power asserted. In our opinion the conclusion is not justified by this language: (1) Because information to the elector may be intended for another purpose, and with a view to other action than a vindication of the elector before the board, which might be an idle ceremony, for the reason that it could not affect their determination, and could sub-serve no other purpose. Such posting does furnish an opportunity to make public the fraud, whether prosecution for perjury or libel could follow or not, and would also naturally deter those making and filing petitions from any extensive signing of names fraudulently. (2) The conclusion is in direct opposition of the mandatory provision that the board shall examine, and determine from, the face of the petitions and records, and that the decision shall be final. The fact that signatures are genuine and the signers electors was evidently intended to be established by the affidavit attached to the petition, which the publicity afforded by posting, and the dangers of prosecution for perjury if false, and the right of personal action would be likely to sufficiently protect both the public and the electors against fraudulent practices. In an unreported case, decided in 1903, Calendar No. 19,792, some of the questions before us were considered and decided. See Case v. Board of Sup’rs of Benzie Co. The board had considered and denied the petitions for submission. The following questions appear to have been involved and were decided by the circuit judge. The decision sufficiently indicates the questions. He held:

(1) That the affidavits required by statute were regular in form.

(2) “ That the board * * * have nothing to do with the names of voters appearing on the poll book * * * for any purpose, except to ascertain the number of votes cast in said county,” etc.

(3) That “it is the duty of the board * * * to recognize and count all names on said petition who have signed said petition as legal petitioners, whether such names appear on the poll books * * * or not. ”

This holding appears to be sustained by the case of Werstein v. Board of Sup’rs of Calhoun Co., 156 Mich. 63 (120 N. W. 354).

(4) That “the board in acting upon and considering said petition cannot go behind the affidavits attached to the petition.”

(5) That, “if upon the face of the petitions it appears that said petitions are signed by as many electors. * * * as one-third of the whole number of votes cast, * * * it was the duty of the board to submit the question.”

A mandamus was issued requiring the board to reconvene and take the necessary steps for the submission of the proposition to a vote of the electors of the county. This court affirmed the order on certiorari, without filing an opinion. The question of the finality of the board’s action seems not to have been considered. This decision appears to have covered the questions raised in the present case, and adjudicated that it is the affidavit that conclusively settles the facts of the genuineness of the signature and the qualifications of the signer, and that the board is bound to act when the papers are regular upon the face and show by a comparison the proportionate number required by law upon the petition.

The order is affirmed.

At the reargument heard after the foregoing was written, it appeared, and was conceded to be true, that the board of supervisors had, after authorizing a return to the order in this cause, adjourned sine die. We are surprised at this, but must assume that such action was not a deliberate disregard of a plain duty, but under the mistaken notion that the matter could be considered at a special session, should occasion require. We are therefore constrained to grant the writ of mandamus to issue from this court, commanding the members of said board to reconvene in continuance of the regular session and proceed to examine and determine the question raised by said petitions, according to the rules indicated by this opinion, and thereupon make such order as the law requires.

Writ granted.

Montgomery, C. J., and Moore, Blair, and Stone, JJ., concurred.

Ostrander, J.

That more than one construction may be given to Act No. 207 of the Public Acts of 1889 (2 Comp. Laws, §§ 5412-5435), as amended by Act No. 183 of the Public Acts of 1899, will be apparent to any one who will read the two enactments. The language employed supports a construction which will in practice render the law utterly futile. It supports a construction which devolves upon boards of supervisors the duty to take testimony and to decide the innumerable issues of fact which may be presented upon the sufficiency of petitions, the right of petitioners to withdraw, and the alleged fraudulent conduct of interested persons. No construction of the law is possible which does not appear to do violence to some of the language employed by the legislature. Clearly the work of construction is not to be entered upon by the court without caution, and not to be concluded without the reflection which the importance of the subject demands. We must, if we can, so construe the law as to make it effectual. In my opinion it may be so, and reasonably so, construed. The purpose of the law is clear. It is to permit the electors of particular localities to suspend in those localities the operation of the general liquor laws. Such a change can be brought about only by the votes of a majority of qualified electors. Such a vote may be had only after certain preliminary steps have been taken, steps designed to secure an expression of the sentiment of the community. It is about these preliminary steps that the courts have been asked to give directions. In most cases they have been asked to do this after the steps had been taken, and of necessity the questions presented by the record and no others have been determined. In this case the steps, so far as action of the board of supervisors is concerned, have not been taken.

The board of supervisors, the facts permitting such action, is required to determine and to express the determination in the form of a resolution, and later in the form of an order, that submission of the question has been prayed for by the requisite number of electors. The question most frequently presented and the one presented in this case is: Upon what showing or record shall the board base the required action ? The statute does not expressly provide for any showing or evidence, except the petitions and either the poll lists or returns and canvass of votes of the last general election. No power is given to the board to examine anything else. The board has no general power in the premises. What does an examination of the petitions involve ? The statute says it involves an examination of what appears upon the face of said petitions. They should indicate, of course the purpose or the prayer of the persons signing. They must have attached, or there must accompany them, as a part of them, affidavits. The affidavits must set out certain facts. Here is the statute evidence from which the board must ascertain how many persons have prayed for the submission of the question to a vote of electors. In this view the duty is a ministerial one, performed in a summary manner. To go further, to frame issues of fact, to receive and consider testimony would not only be to travel beyond the statute bounds, but it would invite, and probably would result in, such delays as to defeat the purpose of the law. A construction should not be given to the act which would -permit such a course to be pursued unless it is imperatively required; because, if the right to exercise judicial power is given by the act to the boards of supervisors, that alone is sufficient to condemn the law. The poll lists, or, in their absence, the returns and canvass of votes of the last general election, are required for a single purpose. That is to show the total number of qualified electors at the preceding election.

The construction indicated does violence, it is said, to the provision of the law which reads:

“To enable each and every elector to determine for himself if his name has been fraudulently attached to said petition, it is hereby required * * * that an exact copy of said petition and of all the signatures thereto shall be posted in three of the most conspicuous places in the said township, ward or election district for at least ten days immediately prior to its presentation to the county clerk.” 2 Comp. Laws, § 5415.

If this provision cannot be harmonized with the one which makes the face of the petitions the evidence upon which the board must act, it is still possible to give the act effect according to its general purpose. It is not possible to give it such effect if the board of supervisors must entertain the demands of one who claims his genuine signature does not appear upon a petition. Either a demand that the signature be canceled must be acceded to without inquiry, or else the genuineness of the signature must be determined by evidence other than the face of the petition. It is to be said, however, that in requiring an affidavit of the genuineness of all signatures and in requiring the petitions to be posted the legislature has provided such safe-guards as were deemed expedient; that it is not evidence of an intent to permit the fact, sworn to in the affidavit, to be controverted before the board, but it is intented to prevent perjury from being committed.

The conclusions I have reached are not different in essentials from those stated by Mr. Justice Hooker, For the purposes of this case, it seems to me sufficient to say that it is the plain legal duty of the board of supervisors to examine the petitions and affidavits accompanying them to discover upon and from the face of the petitions and affidavits whether they contain the affirmative facts specified in the law. If they do, then they should ascertain how many qualified electors have prayed for submission of the question to a vote of the electors, and ascertain from what the statute makes the evidence of the fact the number of votes cast at the last general election. The result will be two numbers established By the evidence which the statute permits them to consider. If the smaller of them is at least one-third as large as the other, the duty to pass the resolution and to make the order required by the law is a clear legal duty. If the number of signatures to the petitions is less than one-third the number of ascertained votes, the duty is equally clear not to pass the statute resolution and order, but to enter the ascertained and determined facts upon their record. It is not to be supposed that with their duties thus plainly defined supervisors will in any case refuse to perform them. In the present case, the board having adjourned without taking any action, the writ of mandamus must issue directing the board to convene and act.

McAlvay, J.

We agree with the foregoing opinion of Mr. Justice Ostrander, and add that in our opinion the statute should be construed that, when the board has performed its legal duty in the manner therein pointed out, its determination is final whether or not the question is submitted to an election.

Brooke, J., concurred.


source: Caselaw Access Project

author: Moore, J. Blair, J.

license: Public Domain

text:
    RUTLEDGE v. BOARD OF SUPERVISORS OF MARQUETTE COUNTY.
    1. Intoxicating Liquors — Local Option — Petition to Adopt— Right of Withdrawal.
    Petitioners -who sign the statutory petition to submit to the voters of a county the prohibition of the manufacture and sale of intoxicating liquors therein, may not withdraw their names after copies of the petition have been posted. 2 Comp. Laws, §§ 541A5417. Act No. 183, Pub. Acts 1899.

      2. Same — Fraud.
    No inquiry is permitted by statute to determine whether or not signatures were procured by fraud.
    3. Same — Petition — “Qualified Electors” — Words and Phrases.
    A qualified elector is one who meets the requirements of Art. 3, § 1, Constitution of 1909.
    4. Same — Mandamus— Local Option — Election—Duty of Board to Act.
    Where it appears that the petitions contained the requisite number of names, and that the board of supervisors should have ordered the election, mandamus will lie to require the board to reconvene and discharge this duty. Blair, McAlvay, and Brooke, JJ., dissenting.
    Mandamus by Caleb H. Rutledge and another to compel the board of supervisors of Marquette county to submit the question of prohibiting the manufacture and sale of intoxicating liquor in said county.
    Submitted January 20, 1910.
    (Calendar No. 23,808.)
    Writ granted February 11, 1910.

      William P. Belden, for relators.

      Frank A. Bell, Prosecuting Attorney (A. B. Eldredge, O. F. Button, and George P. Brown, of counsel), for respondent.
   Moore, J.

The petition filed in this case presents questions arising under the provisions of Act No. 207 of the Public Acts of 1889 (2 Comp. Laws, §§ 5412-5435), as amended by Act No. 183, Pub. Acts 1899, — the “local-option law,5' so called. Relators and others circulated or caused to be circulated in all of the townships of Marquette county, except three, and in various wards of the cities of Marquette, Ishpeming, and Negaunee, petitions praying that the question, “ Should the manufacture of liquor and the liquor traffic be prohibited within the county of Marquette,” be submitted to the qualified electors of the county at the next general election. This work resulted in securing 2,659 signatures to these petitions. At the last general election for State officers in Marquette county 7,667 votes were cast, so that these petitions required at least 2,556 signatures. The local-option petitions were therefore signed by 103 persons more than the number required by law. Relators and their associates on or about the 10th of November, 1909, caused copies of the petitions to be posted in the various townships and in the wards of the cities mentioned, in compliance with section 4 of the statute. Immediately following the posting of these names, withdrawal cards were circulated among the signers of these petitions. One of these forms of withdrawal specified that the undersigned had reconsidered this matter, and was not in favor of the proposition prayed for in the petition. One hundred ninety-eight withdrawals were secured upon this form. The other form set forth that the undersigned had been fraudulently induced to sign these petitions, and those withdrawals were sworn to in the form of affidavits. There were ten of these. Thirteen others signed the same form, but struck out the word “fraudulently.” There were also five others which set forth more specifically the reasons why they wished to have their names withdrawn. Altogether 226 such withdrawals were filed with the county clerk between the time when these petitions were posted and the time when they were filed with the county clerk. The petitions were presented to the board of supervisors by the county clerk at its regular meeting on December 1, 1909. The board appointed a committee to canvass the petitions, affidavits, and other matters, collect the facts, and make a report to the board. This committee had public hearings. The committee then prepared a report, in which it considered all the objections raised at the public hearings. On the question of the right to withdraw, the report states that the committee was advised by the prosecuting attorney that petitioners on such petitions had the legal right to withdraw their names therefrom at any time before the petitions are filed with the county clerk. The committee acted upon this advice, and deducted the 220 names withdrawn from the total of 2,659 signatures on the petitions, leaving a balance of 2,439, or 117 less than the number required by law to permit the submitting of said question to a vote. The board of supervisors met and adopted the findings of the committee, and denied the prayer of the petitioners to order an election. Thereupon relators filed this petition for the purpose of having an order made requiring the board of supervisors to reconsider its action and to order an election. The respondent filed an answer to this petition which appears in the record, and a stipulation has been made by which the original petitions and affidavits have been filed with the clerk of this court. The answer of the respondent admits “that said petitions and accompanying affidavits were considered by this respondent as substantially complying with the law.”

The answer ■ sets forth in one paragraph that the petitions were signed by 200 and upwards of persons who were not registered electors of the townships, election precincts, and ward from which the petitions signed by them respectively emanated, and that these 200 names of themselves were sufficient to have caused the refusal of an election if the signers of said petition were required to be registered electors. The answer also shows that the respondent reached the conclusion that petitioners may be qualified electors without being registered voters. This statute has been construed in the following cases: Thomas v. Abbott, 105 Mich. 687 (63 N. W. 984); People v. Hamilton, 143 Mich. 1 (106 N. W. 275); Attorney General v. Van Buren Circuit Judge, 143 Mich. 366 (106 N. W. 1113); Koerber v. Board of Sup’rs of Ionia Co., 155 Mich. 677 (120 N. W. 8).

Some of the questions involved in this proceeding have not before been presented to this court. Some of them are presented in the case of Kern v. Board of Sup’rs of St. Clair Co., ante, 11 (124 N. W. 941), and the case cited therein. In the opinion filed in that case some of the questions presented by this record are considered and decided. It will not be necessary to repeat what is stated in that opinion. A reference to it will show that the board may not, by extrinsic testimony, enter upon the sufficiency of the posting of the notices, nor whether the signatures were fraudulently obtained, nor whether they were the signatures of qualified electors. It was held that the investigation of the clerk should be confined to ascertaining from a comparison of the names on the petition with those on the records mentioned in the statute whether the petitions contained the requisite number of electors. It was further held that the law does not give the clerk authority to remove names, nor to investigate any question of fraudulent signing. It was also held that the duty of the board of supervisors is to review the action of the clerk, and to decide from the face of the papers and records whether the requirements of the law have been met, and, if the board so finds, then it has no discretion in the matter, but should order the election. In that case the question of whether one who had voluntarily signed a petition, might, after the posting of the notices, and before the filing of the petitions with the clerk, withdraw his name, was not at issue, and was not decided unless what was said about the clerk having no authority to remove names from the petition gives rise to such an inference.

In the case of Koerber v. Board of Sup’rs of Ionia Co., 155 Mich. 677 (120 N. W. 8), it was held that one who had voluntarily signed a petition could not withdraw his name therefrom after the petitions were filed with the county clerk. It was not decided therein that he could not do so between the time of the posting of a copy of the petitions, and the filing of the originals with the county clerk. The reasoning, however, of the opinion and the quotations made therein from the decisions of other courts, logically we think leads to this result. To hold otherwise might give rise to great uncertainty. A case might be imagined where, after the requisite number of names had been secured to set the machinery of the law in motion, persons who had attached their names to the petitions, and had lulled the circulators of the petitions into a feeling that sufficient signatures had been procured, might then withdraw their names, having intended to do so from the first, and thus prevent the submission of the question at the next general election. There is no provision in the law for the withdrawal of the names after the petition is posted, and we think no such provision should be read into it. In the case of Koerber v. Board of Sup'rs of Ionia Co., supra, it was not necessary to pass upon the question of whether an inquiry could be entered upon where it was alleged the name had been fraudulently attached to the petition, but the question is directly passed upon in the case of Kern v. Board of Sup'rs of St. Clair Co., supra.

One other question remains, and that is: Must one within the meaning of this statute in order to be a qualified elector be a registered elector ? This precise question has not been before us, but we are all agreed that a qualified elector within the meaning of this statute is one who meets the requirements of section 1, art. 3, of the Constitution of Michigan (1909).

It follows from what has been said that neither the clerk nor the board of supervisors possessed authority to permit the names to be withdrawn, and it was the duty of the board to count the names as they appeared on the petition. It appears that the petitions contained the requisite number of names, and that the board of supervisors should have ordered the election. They will be required to reconvene and to discharge this duty.

Writ granted.

Montgomery, C. J., and Ostrander, Hooker, and Stone, JJ., concurred with Moore, J.

Blair, J.

I concur in the foregoing opinion. I think, however, that the order should be that the board reconvene and act upon the evidence required by the statute as construed in Kern v. Board of Sup’rs of St. Clair Co.

McAlvay and Brooke, JJ., concurred with Blair, J.


author: Montgomery, C. J.

text:
    FLANDERS v. BOARD OF SUPERVISORS OF VAN BUREN COUNTY.
    1. Intoxicating Liquors — Electors—Petition—Local Option— Qualification of Petitioners.
    The boards of supervisors, to whom petitions for the submission of the issue of prohibiting the manufacture and sale of intoxicating liquors are presented, are not authorized to go behind the petitions and affidavits required by statute to determine the qualifications of the petitioners.
    2. Same — Mandamus—Interest of Relator.
    Qualified electors who sign petitions have such a legal right and interest in the matter that they may maintain mandamus to compel the supervisors to perform their legal duty.
    Certiorari to Van Burén; Des Voignes, J.
    Submitted February 16, 1910.
    (Calendar No. 23,859.)
    Decided February 25, 1910.

      Mandamus by Garfield S. Flanders to compel the board of supervisors of Yan Burén county to reconvene and pass upon certain petitions and call an election under the local-option law. An order denying the writ is reviewed by relator on writ of certiorari.
    Reversed.

      Thomas J. Cavanaugh and Cook & Chandler (William C. Manchester, of counsel), for relator.

      David Anderson, Lincoln H. Titus, Earl L. Burhans, O. W. Rowland, and Q-lenn E. Warner, Prosecuting Attorney, for respondent.
   Montgomery, C. J.

This is certiorari to review the action of the circuit judge in refusing a mandamus to compel the respondent to reconvene and pass upon the petitions presented, and call an election under the local-option statute, so called. It appears by the original petition and answer in the court below that petitions were presented to the board containing the names of 2,757 alleged voters of the county; that there were attached to the petitions affidavits complying with the statute in all respects, except as to the township of Columbia, in which the affidavit of posting failed to state the particular places in the township where the affidavits were posted. The board of supervisors held that the evidence of posting notices in the township of Columbia was not sufficient in form and excluded that township from their computation. But, excluding this township, there were still a sufficient number of names to constitute one-third of the electors of the county if all the names appearing upon the petitions were counted. The board, however, determined, and just upon what evidence is not made clear, that certain of those whose names appeared upon the petitions, to the number of 224, were not qualified electors, and that by excluding these names and excluding the petitions from the township of Columbia, the election had not been prayed for by one-third of the electors of the county.

On the hearing in the court below, the circuit judge was of the opinion that the board acted lawfully in excluding the 224 names from their consideration, and also in excluding the township of Columbia, and also held that the mandamus should not be granted, for the reason that the petitioner had not shown himself entitled to institute the proceeding, as he had shown no peculiar interest in the matter other than that which any citizen or individual of the county might have had.

Apart from the questions involved relating to the township of Columbia, all the questions that have been presented in this case have been discussed in the two opinions of Rutledge v. Board of Sup’rs of Marquette Co., ante, 22 (124 N. W. 945), and Kern v. Board of Sup’rs of St. Clair Co., ante, 11 (124 N. W. 941), in each of which cases opinions were filed. The substance of these two opinions is that the board of supervisors has no power to go behind the petitions and affidavits presented in determining the qualifications of those whose names appear upon the petitions. As was said in Kern v. Board of Sup’rs of St. Clair Co.:

^ “It is suggested that the affidavits of genuineness of signatures, and of posting the required notices, are only prima facie evidence of those facts. Grant that it would not be conclusive in courts of justice in some cases, is it merely prima facie evidence ? It is certainly substantial evidence whether perjury could be predicated upon such affidavits or not (3 Comp. Laws, § 11306) — a question we do not discuss — and in our judgment it was entirely competent for the legislature to make it conclusive evidence of the facts required, if thought advisable. They evidently did think it advisable for that is what was said.
“We must not lose sight of the object of this law. It was to take the sense of the community as to the application of one or another law relating to the sale of liquor, not in the interest of individuals, but of the public. There was an evident intention to avoid expense and disturbance of existing conditions lightly, and the legislature made certain requirements a preliminary to action. It might have fixed this or any of many other methods of testing the desire for an election, and might have gone to great lengths in ascertaining it with certainty. It might have omitted this test altogether, or it might, as it did, provide an easy and inexpensive and expeditious method of ascertaining, with a reasonable degree of certainty, how general such a desire is, without submitting the matter to a sort of judicial inquiry before the board or courts of justice to ascertain whether there was a technical want of compliance or a fraudulent attempt to secure action, of neither of which was there any great probability. We consider this a ministerial matter from beginning to end. The legislature carefully pointed out the procedure, and to our minds as plainly indicated an intent that it should not be subjected to the delays and obstacles that might be devised by persons interested in preventing a vote upon the question.”

And in Rutledge v. Board of Sup’rs of Marquette Co., supra, it was said by Mr. Justice Moore, referring to the Kern Case:

“A reference to it will show that the board may not, by extrinsic testimony, enter upon the sufficiency of the posting of the notices, nor whether the signatures were fraudulently obtained, nor whether they were the signatures of qualified electors.”

We also think that the relator showed himself to be entitled to bring this proceeding. A fair construction of the petition, which contains this language: “Comes now Garfield S. Flanders of said county of Van Burén and State of Michigan, in his own behalf and in behalf of 2,757 other persons and qualified electors whose names were signed to certain petitions, hereinafter more specifically referred to as relators herein, and who all have a common interest and a legal right in the matters and things hereinafter alleged, and complains,” etc. — is that the relator and the other persons named were qualified electors, and were signers of the several petitions; and we think it should be held that these parties, having instituted this statutory proceeding, beginning with the petitions, a step in which is action imposed by the law upon the board of supervisors, are entitled to have the board take the action which the statute contemplates, and have a legal right to enforce the performance of that duty. In a number of cases this right has been exercised and a remedy afforded upon similar applications; and, while the point has not been raised and discussed, we are all agreed that the relator in this proceeding has such a special interest in this matter as to entitle him to the writ.

The order of the circuit court will be reversed, and an order entered directing the board of supervisors to reconvene and determine the question, basing the same upon the face of the petitions which they find to have been regularly posted, and excluding from their consideration other evidence as to the qualifications of electors.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    CRAWFORD v. BOARD OF SUPERVISORS OF GRATIOT COUNTY.
    1. Intoxicating Liquors — Local Option —Elections —Qualifications of Petitioners.
    The action, of the board of supervisors in passing on the qualification of signers of a local-option petition may be reviewed by the court on mandamus.
    2. Same — Affidavits—Sufficiency—Time.
    Under 2 Comp. Laws, § 5415, affidavits that copies of the local-option petitions have been posted ten days prior to their presentation to the county clerk must be made after the lapse of the ten-day period in order to comply with the statute.
    3. Same — Affidavits—Time of Filing.
    The affidavit need not show that the petitions posted have remained in place during the ten days, nor need the petition be filed or the posting be done on any particular day.

      Certiorari to Gratiot; Searl, J.
    Submitted February 16,1910.
    (Calendar No. 23,861.)
    Decided February 26, 1910.
    Mandamus by Herbert J. Crawford and John H. Watson to compel the board of supervisors of Gratiot county to reconvene and submit the question of the prohibition of the manufacture and sale of intoxicating liquor to an election. An order denying the writ is reviewed by relators on writ of certiorari.
    Affirmed.

      Stone & Watson, for relators.

      John M. Ever den (O. G. Tuttle, of counsel), for respondent.
   Ostrander, J.

Certain petitions, presented under provisions of Act No. 307, Pub. Acts 1889 (3 Comp. Laws, §§ 5413-5435), as amended by Act No. 183, Pub. Acts 1899, were presented to the board of supervisors of Gratiot county, considered, and disposed of by the adoption, by a vote of 17 to 8, of the following committee report:

“ The special committee appointed at this session on the petition for local-option election, reported through Supervisor Ely, and which Supervisor Ely moved that the report be received, accepted, adopted, placed upon the records as the finding of this board.
“ ‘To the Honorable Board of Supervisors for Gratiot County, Michigan.
“ ‘ Gentlemen: Your committee to whom was referred the matter of the local-option petition, so called, have thoroughly examined and considered the same and respectfully report thereon as follows:
“ ‘1st. There are not the requisite number of petitioners upon legally authenticated petitions to authorize this board to submit the question to the electors of this county; and that the submission of the local-option question has not been prayed for by the requisite number of electors.
‘“2nd. We therefore recommend that the prayer of the petitioners be denied.
“ ‘All of which is respectfully submitted.’ ”

Thereupon certain of the petitioners applied to the circuit court for Gratiot county for a writ of mandamus to compel the board, which in the meantime had adjourned, to reconvene, and by resolution and order submit to the electors of the county the question whether the manufacture of liquors and the liquor traffic should be prohibited in the county. There was an answer made by the chairman of the board, a hearing, and a denial of the writ. Plaintiffs in certiorari, who were relators below, present three matters for our consideration. They are:

First. Is the answer or return of the respondent sufficient to justify the ruling that the facts therein stated must be taken to be true; no issues having been framed ?
Second. Is the action of the board — its determination— final and not reviewable by the court ?
Third. Does the statute (2 Comp. Laws, § 5415) require the affidavits of posting, etc., to be made after the expiration of 10 days after the posting was done ?

The first question does not become important, because it is made to appear by the petition for mandamus and the answer that the action of the board was warranted.

The second question is disposed of by Flanders v. Board of Sup’rs of Van Buren Co., ante, 27 (124 N. W. 1101). See, also,. Keefer v. Board of Sup’rs of Hillsdale Co., 109 Mich. 645 (67 N. W. 981).

The third question involves the application and the construction of 2 Comp. Laws, § 5415. For convenience the provision is set out here at length:

“(5415) Seo. 4. To enable the county clerk to ascertain that the petitioners thus praying for such an election are qualified electors of such county, and that they constitute at least one-fourth of all the electors of such county, as shown by the poll list or the returns and canvass of the last preceding general election. To enable each and every elector to determine for himself if his name has been fraudulently attached to said petition, it is hereby required that the signatures of all the petitioners residing in any one and the same township, ward or election district, shall be attached to one petition or list, separate from those of any other township, ward or election district, and that an exact copy of said petition and of all the signatures thereto shall be posted in three of the most conspicuous places in the said township, ward or election district for at least ten days immediately prior to its presentation to the county clerk. Every such petition shall be accompanied by a transcript of the poll list, if it can be procured, of the last preceding general election, held in such township, ward or election district, certified as correct by the township, city or county clerk, as the case may require, and also an affidavit or affidavits, by one or more resident electors of such township, ward or election district, stating therein that an exact copy of such petition, and of all the signatures thereto, has been posted in three of the most conspicuous places in such township, ward or election district, for at least ten days immediately prior to its presentation to the county clerk; and that he or they are personally acquainted with said petitioners and know that they reside within such township, ward or election district, and that the signatures are the genuine signatures of the persons signing the petition, and of the persons whose names severally appear upon such transcript of the poll list, or if such transcript shall not have been procured, then that the persons whose names are attached to said petition are, to the best of his knowledge and belief, qualified electors in such township, ward or election district: Provided, however, That, if for any reason a certified transcript of any poll list shall not have been procured, or if such transcript shall be defective, it shall be sufficient if the whole number of all the petitioners is equal to one-fourth of thenumber of all the qualified electors of such county, as shown by the returns or county canvass of the last preceding general election.”

The poll lists did not accompany the petitions. The petitions were filed with the county clerk on January 8,1910. It appears upon the face of the affidavits that copies of the lists were posted on various days from December 23 to December 2?, 1909. Several of the affidavits were made on the day of posting, several on the succeeding day. It is clear, therefore, and the fact appears upon the face of the affidavits, that when they were made, none of the affiants could truthfully have deposed, as the statute expresly requires that he should do, and as he did, that an exact copy of the petition has been posted in three of the most conspicuous places * * * for at least ten days immediately pior to its presentation to the county clerk.” We need not enter upon a discussion of the possible or probable legislative reasons for this express requirement. It is a requirement which may be easily complied with. We do not construe the provision as one requiring an affiant to depose that, after posting, the matter posted has remained in position to the day of filing the petition with the county clerk. The original petitions are not required to be filed upon any particular day. The posting is not required to be done on any particular day. But when the petitions are filed, they must be accompanied by an affidavit stating two essential facts: One, that an exact copy has been posted; the other, that the posting occurred at least 10 days prior to the time of filing the original with the clerk. We have held that the statute confines the board of supervisors to the face of the petitions and accompanying affidavits. It is obvious that no one can truthfully depose on the same day on which he posted a copy of the petition that the copy has been posted at least 10 days before its presentation to the county clerk. We have in various cases construed this law in such manner as to give it effect in accordance with the apparent spirit and purpose of the law. It is not necessary, in order to give the law effect, if indeed any consideration would support such action, to strike out of the statute the express requirement which has here been disregarded. There are other defects in the affidavits which we need not consider. We agree with the learned circuit judge that the third question hereinbefore stated should be answered in the affirmative.

The judgment is affirmed, but no costs are awarded.

Moore, Brooke, Blair, and Stone, JJ., concurred.


author: Hooker, J.

text:
    HENDERSON v. BOARD OF ELECTION COMMISSIONERS OF THE CITY OF SAGINAW.
    1. Constitutional Law — Elections —Voting Machine — Challenged Votes.
    Act No. 214, Pub. Acts 1909, regulating the use of voting machines at elections, is not unconstitutional in providing that the votes of challenged persons must be accepted after the voters take the required oath.
    2. Same — Arrest of Fraudulent Voter.
    If the provisions of the statute for the arrest of unqualified voters should be held unconstitutional, the remainder of the act would not be affected.
    3. Same — Elections.
    The provisions of the law provide a check upon fraudulent voting.
    4. Same.
    Failure of the statute to provide for a method of distinguishing challenged votes does not invalidate the law.
    5. Same — Statutes—Elections—Previous Law.
    The provisions of 1 Comp. Laws, §§ 3720, 3721, for the identification of challenged ballots remain unrepealed, but votes by the machine cannot be identified under any provisions of the statute.
    6. Same — Words and Phrases — Vote by Ballot.
    A vote by voting machine is a proper vote by ballot.

    7. Certiorari — Appeal and Error — Questions Reviewable — Mandamus.
    An order and finding of the circuit court on the facts in mandamus proceedings is conclusive on review in the Supreme Court.
    8. Constitutional Law — Voting Machines — Recording Vote.
    No constitutional requirement confers on a voter the right to see that the machine correctly registers his vote.
    Certiorari to Saginaw; Gage (William G.), J.
    Submitted February 23, 1910.
    (Calendar No. 23,860.)
    Decided March 1, 1910.
    Mandamus by Edwin D. Henderson to compel the board of election commissioners of the city of Saginaw to provide paper ballots for use at an election. An order denying the writ is reviewed by relator on writ of certiorari.
    Affirmed.

      Thomas G. Baillie (P. J. M. Hally, of counsel), for relator.

      John F. O’Keefe, City Attorney (William L. Carpenter and Frank Keiper, of counsel), for respondent.

       As to use of voting machine as violation of constitutional requirement that all elections shall be by ballot, see note to State, ex rel. Karlinger, v. Board of State Deputy Sup’rs of Elections (Ohio), 24 L. R. A. (N. S.) 188.

   Hooker, J.

The relator, a resident elector and taxpayer of Saginaw, in anticipation of a special election, which had been called for the purpose of taking the vote of the electors of the city upon a bonding proposition, petitioned the board of election commissioners, asking them to provide for the use at said election of printed or paper ballots, in place of voting machines owned by the city, and the request was refused. He then applied to the circuit court for a mandamus to compel such action, and upon a hearing the writ was denied. The case is in this court upon certiorari.

Counsel for relator say that there are two questions of law in the case: First, whether section 11, Act No. 214, Pub. Acts 1909, is constitutional; second, whether a vote by this machine is a vote by ballot. The section in question provides:

“When the right of any person offering to vote is challenged the inspector of election shall tender to him such of the oath required by the election law of this State as he may claim to contain the grounds of his qualifications to vote. And if the voter take such oath, he must be allowed to cast his vote upon the machine. If the challenge is not withdrawn, the inspectors of election shall write opposite the name of such voter in the registration book, the word ‘challenged,’ and if such voter then enters the machine to vote, the election officer shall write the word ‘ sworn ’ opposite the voter’s name in the pollbook. If sufficient evidence is produced by any challenger, or elector, who will make affidavit on blanks provided therefor, that he believes such voter is not a qualified voter, giving the reasons for same; or if such voter is known to the inspectors of election, not to be a qualified voter, they shall immediately cause the arrest of such voter, and upon conviction such voter shall be deemed guilty of a felony, punishable as provided in section 153 of the general election laws.”

Counsel make the argument that said section gives the right to vote to persons not constitutional electors, because it requires that any one who tenders a vote must be allowed to use the machine, provided he shall take the statutory oath. They also urge that the provision requiring the arrest of such persons in certain cases is in violation of the Constitution. The first provision is not peculiar to laws permitting the use of voting machines. For many years the law has required the acceptance of challenged votes, provided the persons offering them should take a similar oath, and we doubt if there is a State in the union where similar provisions have not been in force. There is no known way of preventing persons not electors from offering votes. If registered, the vote must be accepted, unless challenged. It might be said that such laws are unconstitutional for the same reason. All of these laws, as well as section 11 under consideration, are passed for the purpose of preserving the purity of elections, and the argument that they result in impurity, fraud, and abuse of the elective franchise seems to us unsound. These provisions provide some check upon the practice of fraudulent voting. They do not facilitate, but have a tendency to check, the practice, and to a degree tend to the purity of elections. So far as the other objection to this section is concerned, we think it unnecessary to enter upon a discussion of the immunity of citizens from arrest, or the necessary formalities to warrant arrests. It is sufficient to say that, should we be forced to hold that the provisions for arrest are not within the constitutional requirements, we might reasonably hold that the remainder of the section and act could, and should, be allowed to stand, under the well-settled rule in such cases.

An argument in support of the unconstitutionality of this section is made upon the fact that no method is provided by which a vote illegally cast can be identified, as is the case under the existing law providing for the use of paper ballots. If this is a valid objection to the section, it must also be true that many former acts were unconstitutional for the same reason. The practice of marking challenged ballots has not always prevailed, and in fact earlier laws have provided for the destruction of ballots. We are not aware that there is any constitutional requirement that a way shall be provided for the identification of all unlawful votes, or the preservation.of the evidence, if detected, and we know of no authority which justifies the conclusion that, having once attempted to provide for the identification of such votes, the legislature cannot pass a valid election law that shall omit such provisions. The challenge is no test of the electorship of the person offering a vote. Electors may be challenged, and persons not electors may vote without being challenged, and the wisdom of the practice of marking challenged ballots is a question of expediency, which is for the consideration of the legislature. Such designation is a matter of right, neither to the candidates, the challenger, nor the person challenged. Hence the omission does not make the act unconstitutional. We think, however, that the legislature did not at first intend to dispense with the provision for the identification of challenged votes, which is provided for in 1 Comp. Laws, §§ 3720, 3721, where ordinary ballots are used. Those sections were in force when the voting machine law of 1897 was passed (Act No. 61, Pub. Acts 1897, 1 Comp. Laws, §§ 3750-3758), and section 9 of that act provides:

“All election laws not incompatible with this act are continued in full force and effect.”

While the act of 1897 did not specifically provide for such designation it did provide, in section 5:

“An ordinary ballot box shall be provided for use in each voting precinct, wherein shall be cast duly authorized ballots relating to any question or matter not provided for by the voting machine, if any, and such votes shall be counted and returns made as provided by existing laws.” 1 Comp. Laws, § 3754.

Act No. 234, Pub. Acts 1903, provided a way for voting irregular ballots to the voting of which the machines might not be adapted. If it be thought that these are not sufficiently specific, section 17, added by Act No. 70, Pub. Acts 1907, is aimed at this subject, for it indicates the legislative understanding that the requirement of section 3720 was not to be dispensed with when the voting machine should be used, and points out the method to be pursued.

“When the right of any person offering to vote has been challenged, the inspectors of election shall tender to him such of the oaths required by the election laws of the State, as he may claim to contain the grounds of his qualification to vote. If such person, so challenged, will take either of the oaths provided by law his vote shall be received, and he shall have the right to cast a ballot in the manner provided in section eleven of this act for voting an irregular ballot, or in the ballot box provided in section five of act sixty-one, Public Acts of eighteen hundred ninety-seven, for voting on any question or matter not provided for by the voting machine: Provided, The ballot so cast shall comply with the provisions of sections three thousand seven hundred twenty and three thousand seven hundred twenty-one of the Compiled Laws of eighteen hundred ninety-seven.

‘ ‘ This act is ordered to take immediate effect.

“Approved April 30, 1907.”

Rut sections 11, 12, Act No. 214, Pub. Acts 1909, contain provisions inconsistent with the identification of challenged votes when voting machines are used, as the former requires the board to allow a challenged voter to vote on the machine upon taking the statutory oath, and the latter excludes an irregular ballot in such a case. We must conclude, therefore, that the requirement of identification was intentionally dropped in the law of 1909, and is not now permitted when voting is by machine.

We have already decided that a vote by voting machine is a vote by ballot. See City of Detroit v. Election Inspectors, 139 Mich. 548 (102 N. W. 1029, 69 L. R. A. 184, 111 Am. St. Rep. 430); Elwell v. Comstock, 99 Minn. 261 (109 N. W. 698, 7 L. R. A. [N. S.] 621); 11 Current Law, p. 1177, note. It is said that the decision in that case was limited by the assumption that:

“The voting machines in question will, if used, insure to the elector proper instruction in the use of the machines, absolute secrecy in voting, opportunity to vote for any person or candidate of his choice for any office to be filled at a particular election, a knowledge that he has voted, a correct record of the vote or votes, and a public and correct declaration of the total result of the election, and the recording and preservation of such result by officers chosen and sworn for that purpose.”

And it is said that the testimony taken upon issues framed in this case warrants no such conclusion. Apparently counsel expect that we will review the findings of the circuit court upon these questions, and this, too, on what they state to be “certain portions of the testimony.” This is not the practice in certiorari. We must presume that the facts which counsel say were assumed in the former case are properly found in this case.

We are of the opinion, also, that the fact that the voter cannot have visual evidence, at the time of using the machine, that it correctly records and counts the ballot which he votes, does not preclude the use of this machine. We know of no constitutional provision that requires that a voter shall have such knowledge, even when a paper ballot is used.

The order is affirmed, with costs against the relator.

Montgomery, C. J., and Ostrander, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
      In re WILSON.
    1. Constitutional Law — Title op Statute — Local Option — Intoxicating Liquors.
    The amendment of the local-option law by Act No. 183, Pub. Acts 1899, is not objectionable under the provisions of Art. 4, § 30, Const, of 1850, which require the object of a law to be expressed in its title, although the original act authorizes the boards of supervisors to act on petitions while the amendment is mandatory. 3 Comp. Laws, § 5413 et seq.

    3. Same — Title op Act — Legislative Functions.
    Neither is the amendment open to the objection that its objects are not all expressed in the title or that legislative powers are conferred upon the electors.
    3. Same — Class Legislation — Interpretation—Statutes.
    No discretion is left with the board of supervisors to repeal the act when the people of a county so vote.
    4. Same — Class Legislation — Exemption op Home Grown Products.
    The conviction of the petitioner in habeas corpus could not be affected although it should be determined that Act No. 170, Pub. Acts 1903, exempting the sale of wine or cider from home grown fruit in quantities of five gallons or more, is class legislation.
    Habeas corpus proceedings by Hawley C. Wilson to obtain his release from the jail of Jackson county.
    Submitted February 23, 1910.
    (Calendar No. 23,882.)
    Petition denied March 2, 1910.

      James J. Noon (Wilson & Cobb, of counsel), for petitioner.

      Albert O. Reece, Prosecuting Attorney, and Frank L. Blackman, Assistant Prosecuting Attorney, for respondent.
   Blair, J.

Petitioner seeks release from an alleged unlawful imprisonment in the county jail for the alleged offense of—

“Keeping a place where intoxicating liquors are sold, stored, kept for sale and furnished, * * * contrary to the provisions of a certain resolution adopted by the board of supervisors of the county of Jackson, Michigan, on the 13th day of April, A. D. 1909, in pursuance of the provisions of Act No. 207 of the Public Acts for the year 1889 (2 Comp. Laws, §§ 5412-5435), as amended.”

Petitioner alleges in the petition that such imprisonment is illegal for the following reasons:

“(1) Because Act No. 183 of the Public Acts of 1899, amending section 13, among other sections, of Act No. 207 of the Public Acts of 1889, is in violation of section 20 of article 4 of the Constitution of this State of the year 1850, which requires the object of a law to be expressed in its title, and setting out in full the title of Act No. 207 of the Public Acts of 1889, and original section 13. The title of the original act is the title of the amendatory act, which is recited in section 1 of the amendatory act. The object stated in the title of the original act is, among other things: * * *
“ (2) Because the objects of Act No. 183 of the Public Acts of 1899 are not all expressed in its title.
“(3) Because the amended section 13 takes from the board of supervisors the legislative powers conferred by the original section, and confers such powers upon the electors.
“(4) Because the amended section 13 commands the board of supervisors to order local option when a majority of the electors of the county vote in favor of it, thereby changing the legislative power conferred by the original section to a mandatory act without expressing the same in the title to the amendatory act.
“(5) Because said amended section 13 is class legislation, in that it provides one rule of action by the board of supervisors for electors favoring prohibition and another for those opposed to it. It is mandatory on the part of the board of supervisors to order prohibition in case a majority of the electors vote in favor of it, and permissive on the part of the board to repeal such resolution when there shall be a vote of the electors opposed to prohibition.
“(6) Because the board of supervisors of Jackson county acted in pursuance of the provisions of section 13, as amended, as appears by the resolution of said board authorizing prohibition, a certified copy of which is annexed to the petition; and because the board in all its proceedings up to and including the said order acted in pursuance of said amendatory act.”

1. It is urged—

“That a title authorizing and empowering the board to act is not broad enough to authorize legislation commanding the board to act. The title authorizes legislation leaving a discretion in the board, while the amended statute (section 13) commands the board to act.”

In Keefer v. Board of Sup’rs of Hillsdale Co., 109 Mich. 645 (67 N. W. 981), it was held—

“ That the purpose of the act (Act No. 207, Pub. Acts 1889) is to prohibit the traffic only in case the people of the county so decide, and that the predominant feature of the act is to confer upon the people of the county the right to decide whether they will or will not have prohibition; and it is with reference to this intent and purpose that the act must be construed.”

Construing the provisions of the amendatory act of 1899 with reference to the object of the original act as interpreted by this court in the case cited, we are of the opinion that such provisions are germane to the original title, and therefore not liable to the objection urged.

Points 2 and 3 are disposed of by our holding under point 1, although it is not intended to admit that the original act granted legislative powers to the board of supervisors. If the legislature under the original title could have conferred upon the people the power to determine when the act should take effect, instead of providing for joint action by the electors and the board, as we have no doubt it could, then it could accomplish the same result by amendment.

5. Petitioner under this head argues that—

“Section 13, as amended, is class legislation. It provides one rule for electors favoring prohibition, and another for those favoring regulation, or treating the liquor business as other kinds of business are treated. It provides that it shall be the duty of the board of supervisors, when the electors have declared in favor of prohibition, to order prohibition, and after two years, if the electors declare against prohibition, it is in the discretion of the board to act on the vote or not, and it can only do so by a majority vote of all the supervisors-elect. This section does not permit the board of supervisors to act upon their own judgment when ordering local option, which, as before said, is an attempt to convert a legislative act into an administrative act at the same time retaining the legislative character when declaring against prohibition. Both provisions are harmonious in the original section.”

It was held in the Keefer Case, supra, that the provision of section 9 of the original act that the proposition “may at any time ” after the expiration of two years be again submitted was mandatory, and left no discretion with the board of supervisors to refuse to call an election. We think the language of section 18, Act No. 183 of 1899, that the board of supervisors after the expiration of two years “ may again on petition,” etc., “act as in the first instance and repeal such resolution ” upon a majority vote of the electors to that effect, should receive the same construction, and be held not to leave any discretion in the board to refuse to repeal the resolution. The action of the board in the second instance is to be the same as in the first instance.

It was also suggested upon the oral argument that the provision of section 15 as amended by Act No. 170, Pub. Acts 1903, that the act should not be construed to prohibit “ the sale of wine or cider from home grown fruit in quantities of not less than five gallons,” etc., rendered the legislation unconstitutional as being class legislation. If is unnecessary to determine this question; since, if said Act No. 170, which was limited to an amendment of the single section 15 of the Act of 1899, should be held to be unconstitutional, it would in no wise affect the validity of the petitioner’s conviction.

The petition is dismissed, and the petitioner remanded to the custody of the sheriff of Jackson county for the execution of his sentence as provided by law.

Montgomery, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    PEOPLE'S BANK v. McMAHON.

    1. Bills and Notes — Conditions Precedent — Contracts—Question of Fact.
    It is proper to submit to the jury, in an action on a promissory note held as security for loans to a corporation of which the maker is a stockholder, the disputed question of fact whether or not the paper was executed on condition that the other stockholders should make similar notes.
    3. Same — Accommodation Note — Principal and Surety.
    A party who executes a promissory note for the purpose of enabling a company to borrow money for the conduct of current business, and who does not sign the instrument with others as makers and indorsers, but requires as a condition that the remaining stockholders shall also execute notes, is not a surety in relation to money borrowed on distinct notes of the corporation which were renewed before the maturity of the collateral instrument.
    3. Same — Negotiability.
    The fact that such note is nonnegotiable does not alter the defendant’s liability to the bank which received it as collateral security.
    Error to Washtenaw; Kinne, J.
    Submitted June 23, 1909.
    (Docket No. 85.)
    Decided March 5, 1910.
    Assumpsit by the People’s Bank against Charles D. McMahon upon a promissory note. A judgment for plaintiff is reviewed by defendant on writ of error. '
    Affirmed.

      A. J. Waters (A. J. Sawyer, of counsel), for appellant.

      A. F. & F. M. Freeman, for appellee.

       Rehearing denied May 7, 1910.

   McAlvay, J.

Suit was brought by plaintiff in assumpsit against defendant upon a certain nonnegotiable promissory note, dated March 3, 1903, due January 1, 1903, made by defendant and payable to the Manchester Canning & Packing Company. Defendant and many others were stockholders in said Canning & Packing Company, a Michigan corporation. This company held its meetings in the room of the plaintiff bank, and the cashier of the bank, in April, 1903, became a stockholder and its secretary.

This corporation soon after its organization, and early in the year 1903, found it necessary, in order to carry on its business for that season, to borrow money, and its board of directors on February 11, 1903, adopted the following resolution:

“That the stockholders be requested to lend their indorsement to the amount of their stock to secure a loan for the purpose of carrying on business for the coming season, and that the secretary notify the stockholders to that effect.”

About 50 notes were given to the corporation by stockholders, each for the amount of stock held by the maker. The record shows that all but about 15 stockholders gave such notes. These notes were used by the payee, it is claimed, as collateral to a loan of |7,000 made to it, from time to time, by plaintiff, which was represented by several of its notes, for amounts and becoming due as follows: March 3d (the date of the note in suit), $300, on demand; March 17th, $300, on demand; May 1st, $1,000, 90 days; May 10th, $3,000, 5 months; June 37th, $3,500, 4 months; July 8th, $500, 4 months; August 1st, $500, 4 months. As the notes of the corporation became due they were canceled and taken up, and new notes were given to plaintiff in place thereof. It is admitted by plaintiff that the $7,000 was all borrowed from it by the Canning & Packing Company for the purpose of carrying on its business for the season of 1902. It is not in dispute that this corporation became insolvent, and that on the new notes given as above stated there remains due and unpaid the sum of about $2,000. Plaintiff recovered a judgment for the amount of the note with interest.

Defendant asks for a reversal of this judgment on account of numerous errors which it is claimed were committed upon the trial and which are assigned. Defendant states in his brief that when his note was given to the plaintiff it was “as security for a loan for the M. C. & P. Co. for the season of 1902, on condition that all other stockholders would give like notes, which condition was known to plaintiff and not complied with.”

The disputed question of fact as to whether the bank took the note under the condition claimed was properly submitted by the court to the jury which returned a verdict for plaintiff. Defendant urges that he was entitled to a directed verdict, as requested, for the reason that he was a mere surety and plaintiff, by taking up and canceling as paid the original notes given by the Canning & Packing Company, and extending the time of payment and taking new notes without his knowledge or consent, released him as such surety. The note in suit was made payable to the Canning & Packing Company. There is a dispute as to whether it came into plaintiff’s hands from that company or from the defendant. Defendant testified that he signed it at the bank and handed it to the cashier. This was disputed. The note was indorsed by the payee to the plaintiff.

Defendant’s note was payable one year after date. He knew that this note and the notes of the other stockholders were given for the express purpose of securing money from the bank as needed to carry on this business for the season of 1902. The transaction was to extend over the entire season. The amounts required from time to time were borrowed from the bank on the terms above stated. The bank, of necessity, must require payment of this short-time paper when due, either in cash or by renewal. The notes were in fact renewed. Defendant’s contention would have required plaintiff bank, at the time the first of these notes came due, to notify one or all of the makers of these stockholders’ notes, and if the note was not paid or the time extended by consent of the makers, to look to them as sureties. Such action would have defeated the purpose for which these notes were given, namely, to secure the running of this business for the season. The time for which the stockholders’ notes were to run also strongly indicates that such was not the understanding of the parties.

We do not find that defendant stood in the relation of a surety to the notes of the Canning & Packing Company to the amount of $100. In fact there is no evidence in the case to establish such relation. It does appear, by a resolution of the officers of the Canning & Packing Company, “that the stockholders be requested to lend their indorsement to the amount of their stock to secure a loan for the purpose of carrying on business for the coming season,” but defendant testifies that he delivered this note to plaintiff as security for a loan to the Manchester Canning & Packing Company upon condition that all the stockholders were to give their notes for the amount of stock each held, which is a contention antagonistic to the claim that he was a surety, and his later testimony is clear that the note was to be used by the corporation as collateral, and so understood by defendant. Part of this testimony is quoted:

“Q. You put yours up for that purpose, didn’t you?
“A. Yes, with that understanding.
“Q. Yes, that was the understanding, that your note was to be put up as collateral security to the extent of $100, was it?
“A. Yes.
“Q. You men did not all sign the same note, the note that you signed, there wasn’t anybody else to sign; every one of you gave a separate note ?
“A. Yes.
“Q. And you gave your note for collateral security to the extent of $100 ?
“A. Yes, I understood it that way.
“Q. When you gave your note you went to the People’s ' Bank and saw Mr. Case about it ? ,
“A. Yes. He drew up the note and I signed it.
“Q. Right there, you knew then that was a note for $100, didn’t you ?
“A. Why it was given that way.
‘ ‘ Q. That you were giving your collateral note for $100 ?
“A. With the understanding that all were to do the same. They were all under the same obligation.
Q. You were not giving your name for more than $100, were you ?
“A. No, sir; I was not asked to sign anybody’s else note.
“Q. No, just your own note; and you gave that note upon the understanding that it was to be used as collateral security to the bank, didn’t you ?
(‘A. Yes, sir.”

This was exactly the contention of plaintiff and disposes of the question of suretyship. The request to direct a verdict for defendant was properly denied. The fact that this note was not negotiable is not material. It was used by the corporation at the bank with defendant’s knowledge and consent and for the purpose for which it was given. Other errors assigned need not be discussed. We find no error in the case.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


text:
    HARRISON GRANITE CO. v. STEPHENS.
    Contracts — Implied or Quasi Contracts — Quantum Meruit— Extra Labor — Excuses for Nonperformance.
    No action may be maintained for extra labor caused by quicksand which is found in soil upon which a mausoleum was to be erected under a contract to furnish and erect the same upon a proper foundation; although the contract specified a smaller excavation which proved to be insufficient, since it was the duty of the plaintiff to provide a sufficient foundation and no promise to pay for the required work can be implied.
    Error to Ottawa; Padgham, J.
    Submitted June 18, 1909.
    (Docket No. 31.)
    Reargued January 4, 1910.
    Decided March 5, 1910.
    Assumpsit by the Harrison Granite Company against George A. Stephens and others for interest on deferred payments, and for extra work. A judgment for plaintiff is reviewed by defendants on writ of error.
    Reversed, and judgment entered for the amount of interest only.
    Nims, Hoyt, Erwin, Vanderwerp & Foote, for appellants.

      Smith, Baldwin & Alexander, for appellee.
   Blair, J.

This is an action of assumpsit to recover the interest due on certain deferred payments, and for certain extra work performed by plaintiff.

On the l?th of November, 1902, the parties entered into a written contract, whereby the plaintiff agreed to furnish and set complete, upon a foundation provided by itself, to be placed, according to cemetery rules and regulations, on defendants’ burial lot in Riverside Cemetery at Moline, Ill., a family mausoleum, for which defendants agreed to pay $22,000. The contract, with the plans, designs, and specifications, furnished to and approved by defendants, provided in minute detail for the erection of the structure. Among other things, it was provided that the excavation for the basement should be to a depth of 10 feet. Plaintiff began excavating, under the contract, June 12, 1903, and when the work had proceeded to nearly the depth of the required 10 feet, it was discovered that the bottom was quicksand, and it became necessary to excavate to a depth of nearly 20 feet in order to obtain a solid footing for the foundation. Neither party had made soundings to determine the character of the soil of the lot, and both supposed it to be what it appeared to be on the surface. It was impossible to erect the building on the lot without doing the extra excavating. Defendants denied plaintiff’s right to compensation for the extra excavation, and, refusing to pay anything unless such claim were withdrawn, plaintiff commenced this suit. Soon after commencement of suit defendants paid the contract price, and it is conceded that plaintiff was entitled to a judgment for interest on deferred payments, amounting to the um of $810.75. The case was tried by the court without a jury, and the court found, as a conclusion of law from the facts found, that plaintiff was entitled to recover for the additional excavation—

“ Both on the law requiring payment where a valuable service has been performed by one, and another has the benefit of it, by implied contract to pay a reasonable price for such service, and on principle, when it becomes necessary to do extra work not provided for in the contract, to save the subject-matter of the contract from loss or de-, struction.”

Defendants bring the record to this court for review upon writ of error.

The general principle oi law which underlies this case is well established. If a man bind himself by a positive, express contract to do an act in itself possible, he must perform his engagement, unless prevented by the act of God, the law, or the other party to the contract. Stees v. Leonard, 20 Minn. 494; School Trustees of Trenton v. Bennett, 27 N. J. Law, 513 (72 Am. Dec. 373); Dermott v. Jones, 2 Wall. (U. S.) 1.

In the present case the plaintiff bound itself by a positive, express contract to furnish and set complete, “not later than the last day of September, 1903,” a mausoleum with a foundation at a depth of 10 feet, for which completed building defendants agreed to pay the sum of $22,-000. It was clearly possible for the plaintiff to discharge the obligation which it assumed, to furnish a completed mausoleum, since it actually did so. The fact that it was compelled, through the nature of the soil, to excavate deeper than was expected, did not operate to relieve it in law from the performance of its agreement, nor to charge the defendants with the expense thereof. The defendants were not guilty of any fraud or misrepresentation with reference to the character of the soil, and were as ignorant thereof as the plaintiff. As between the two innocent parties, the plaintiff, not having guarded itself in the contract it prepared against the contingency of an infirm soil, must, under the authorities cited above, bear the extra expense of making good its covenant.

Since it was the duty of the plaintiff, under its contract, to make the extra excavation, the law will imply no promise on the part of the defendants to pay therefor because of their knowledge that the additional work was being done, and presence at the same without protest. When notified that plaintiff would look to them for compensation for the extra work, defendants promptly repudiated any liability therefor, and the record discloses nothing to indicate any promise on their part, express or implied, to pay for the extra work, or request that it should be done.

The judgment is reversed, and a judgment may be entered in the court below for the sum of $810.75, with interest thereon from the date of the original judgment.

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