148 Mich. 513 | Mich. | 1907
The relator and one Paquette were rival candidates for the office of county treasurer of Cheboygan county. The returns of the inspectors of the various precincts gave the relator a majority of 85 votes. When the board of county canvassers convened, Paquette presented a petition for a recount of the ballots cast in the townships of Ellis, Forest, Mackinac, Koehler, and Nunda. On this recount all of the votes cast in the townships of Ellis and Koehler were rejected, which changed the result, giving Paquette a majority of 56. The ballots cast in Ellis township were rejected because initialed in blue pencil, and not in ink; those in Koehler, because initialed in blue pencil, or lead pencil, and not in ink. The board continued in session from November 13th to November 24th. On November 24th they finally determined the facts as prayed for in the petition for recount. Thereupon, on application of the relator’s counsel, they adjourned to the following Tuesday, to hear a petition for recount to be presented on behalf of relator. On that day they were served with the order to show cause issued in this cause, and restraining them from issuing a certificate of election of Paquette.
Two questions were presented to the circuit court: (1) Is this a proper case for mandamus ? (2) If so, were the ballots properly rejected ? The court assumed that the remedy was a proper one, and held that the ballots were properly rejected, and the relator has brought the case here by certiorari.
Relator’s counsel say that only the latter question is before us, inasmuch as the circuit court passed upon it, and did not discuss the former. The assumption that mandamus was a proper remedy was equivalent to so deciding. If the judge was wrong in his conclusion upon the question of the invalidity of the ballots, it does not follow that his decision must be reversed and a writ granted, if in
We held in the cases of Packard v. Board of Canvassers, 94 Mich. 450, and Henderson v. Board of Canvassers, 94 Mich. 452, that where a board refuses to make a recount, it may be compelled to proceed and make such recount, but that when such board has acted, declared the result, and adjourned, a mandamus will not lie to compel them to reconvene, and declare some other result, which a-court of justice may determine to be a more just one. In other words, the courts will set refractory boards in motion, but will not control their action in recounting the votes over which they have jurisdiction by mandamus. If the recount is erroneous, the remedy by quo warranto is open. We do not overlook the case of Horning v. Board of Canvassers, 119 Mich. 51, where an order granted a mandamus in a case quite similar to this. Apparently the jurisdictional question was not raised by the assignments of error. Had it been, the case would have been ruled by Packard v. Board of Canvassers and Henderson v. Board of Canvassers, supra.
The order is affirmed.
