124 Mich. 511 | Mich. | 1900
The relator, De Gaw, instituted quo warranto proceedings to try the right of Fitzsimmons to the office of justice of the peace, to which each claims to have been elected at the election in the fall of 1898 in the city of Detroit. The cause was heard by the circuit judge without a jury, and the court found that the respondent received, and was elected by, a majority of the votes cast, and rendered judgment of not guilty. The relator brought the cause here by writ of error.
At the commencement of the trial, the court, by consent of the parties, appointed auditors, who opened the ballot-boxes of those precincts in which the correctness of the count was questioned. They tabulated the undisputed ballots, and marked and returned to the court such ballots as were questioned, with the result of their count. The questions before us are (1) whether the entire vote in certain precincts should have been excluded; (2) whether certain rejected ballots in different precincts should have been counted for the relator; (3) whether other ballots counted for the respondent should have been rejected. Counsel have also discussed some ballots alleged to have been erroneously counted for relator.
We have inspected the disputed ballots, and the tabulation. which follows will serve to explain the result reached by us in relation to them. The finding of the circuit judge does not give the total vote of each party, or the plurality received by either. These are deducible only from the various findings, and, as we understand them, the court counted for the relator 18,255, and for respondent 18,260, ballots. We are of the opinion that to
De Gaw.
Fitssimmons.
Reported by auditors.--!_______________■ 16,786 16,671
Fifth district of Twelfth ward, undisputed------------:__________________ 91 158
Fifth district of Twelfth ward, disputed, but counted.......... 4 18
Ballots initialed in blue pencil, counted 699 906
Bromley ballots, Second district, Fourteenth ward.............. 158 120
Bleil ballots, Second district, Fourteenth ward........... 84 56
Bridgman ballots, Seventh district, Sixth ward---------- 216 180
Theo. ballots__________________ 193 114
Of disputed ballots_________ 24 37
18,255 18,260
We make changes in the above as follows:
De Gaw.
Fitzsimmons.
Disputed ballots erroneously rejected-.. 13 7
Add---------- 18,255 18,260
18,268 18,267
Erroneously counted, deduct.......... 5 12
18,263 18,255
From 22 ballots, Fifth district, Twelfth ward, reject and deduct.............. 4
18,263 18,251
We must therefore reverse the judgment of the circuit court, and, as the finding is conclusive of the questions involved, we may properly enter a judgment of ouster here. It will be so ordered, with costs of both courts to the relator.