137 N.W.2d 778 | Mich. Ct. App. | 1965
LAVAN
v.
RETTINGER.
Michigan Court of Appeals.
Stanley E. Beattie, for plaintiffs.
Tom Downs, for defendants.
QUINN, P.J.
Pursuant to leave granted, plaintiffs filed complaint in quo warranto in Livingston county circuit court against defendants to test individual defendants' rights to hold office as officers or members of the Livingston county Democratic committee or the county executive committee. By amended complaint, plaintiffs requested similar relief and in the alternative a judgment declaring the September, 1964, Democratic county conventions invalid and ordering a new convention. Defendants answered and trial was had. Plaintiffs had judgment for the alternate relief.
A Democratic county convention was called in Livingston county for September 12, 1964. It is conceded that this convention was invalid because temporary chairman Rettinger refused to follow the statute[1] and read the county clerk's list of certified *664 delegates. Defendant Rettinger called a second convention for September 15, 1964, but failed to notify all delegates thereof. The invalidity of this convention is conceded. In addition, at the first convention, the temporary chairman refused the vote to 80 of 119 delegates certified by the clerk. No other Democratic county convention has been called, and the individual defendants, except Sixbey, continue as hold-over officers or members of the county committee or county executive committee. At the primary election held September 1, 1964, plaintiff Lavan was nominated Democratic candidate for State representative, and plaintiffs McMillan, Mier, Shinn, and Rettinger were nominated as Democratic candidates for county clerk, treasurer, register of deeds, and drain commissioner respectively. Their nomination made them members of the Democratic county executive committee.[2]
There are only two justiciable issues in this case, namely: did the trial court have authority to order a new convention, and did the trial court properly refuse to go behind the election certificates of precinct delegates to determine the propriety of their election. The trial court found no specific authority for ordering a new convention; none has been cited, and this Court has found none. However, the language of the controlling statute is mandatory,
"The county conventions of each political party shall be held at such time and place as the county chairman of each political party, through its chairman, shall designate."[3]
This language imposes a duty to call and creates a right in party members to have a convention. In such situations, courts have authority to enforce the *665 duty and protect the right. 20 A.L.R. 1035, 1041; Baker v. Board of Election Commissioners of Wayne County (1896), 110 Mich. 635; Soutar v. St. Clair County Election Commission (1952), 334 Mich. 258; Wojcinski v. State Board of Canvassers (1957), 347 Mich. 573. The trial court properly ordered a new convention.
The trial court ruled that neither it nor the county convention could go behind the election certificates of precinct delegates to determine the propriety of their election, except for fraud shown to have occurred between the counting of the votes and certification. The record contains no showing of such fraud. It is this Court's opinion that the ruling was correct. The statute spells out the manner of questioning the propriety of the election of delegates[4] and specifies the method of reviewing any determination made as to the propriety of election of delegates.[5] These statutory methods were used in this instance. Absent fraud, these methods are conclusive.
Defendants raise two further questions, neither of which requires decision. The question of applying the "one man-one vote" principle to the election of delegates was not raised below; it cannot be raised here for the first time. Citation of authority is not required to support this elemental rule of appellate practice.
The last error alleged is that the trial court erred in finding that "the riot or close to it was the result of action of the Democratic county chairman". No such finding appears in the judgment, and it is immaterial to decision in any event.
The trial court is affirmed, with costs to plaintiffs. An order may enter in this Court directing the call *666 of a new Democratic county convention in Livingston county forthwith and in conformity with all pertinent statutes and that the delegates and delegates at large to such convention shall be those certified by the county clerk of Livingston county in his official certificate dated September 4, 1964.
McGREGOR and WATTS, JJ., concurred.
NOTES
[1] PA 1954, No 116, §§ 621, 622, 625 (CLS 1961, §§ 168.621, 168.622, 168.625), as amended by PA 1964, No 236 (Stat Ann 1956 Rev §§ 6.1622, 6.1625, and Stat Ann 1964 Current Material, § 6.1621, p 478).
[2] PA 1954, No 116, § 599 (CLS 1961, § 168.599), as amended by PA 1963, No 245 (Stat Ann 1963 Cum Supp § 6.1599).
[3] PA 1954, No 116, § 622 (CLS 1961, § 168.622 [Stat Ann 1956 Rev § 6.1622]).
[4] PA 1954, No 116, § 624 (CLS 1961, § 168.624 [Stat Ann 1956 Rev § 6.1624]).
[5] CLS 1961, § 168.522 (Stat Ann 1963 Cum Supp § 6.1522).