7 N.W.2d 240 | Mich. | 1942
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *122 Plaintiff, Clarence J. McLeod, and one George D. O'Brien were candidates for representative in congress from the 13th congressional district (in Wayne county), at the general election held in said district November 3, 1942. The Wayne county board of county canvassers, after canvassing the returns from the several election precincts in said district, certified to the board of State canvassers that O'Brien had received a plurality of 1,509 votes. Before the State board had canvassed the returns from this district McLeod filed a petition in this court alleging irregularities in 18 precincts of said district, and asking that a writ of mandamus be issued commanding the board of State canvassers to *123 "remove the votes of said 18 precincts from the return on said congressional election," and "to return plaintiff as the elected congressman for the 13th congressional district of Michigan." By amendment to his petition, plaintiff asks that the board of State canvassers be commanded to declare the election held November 3d in said district for representative in Congress null and void, or in the alternative to remove the votes for representative in congress of "said 16 precincts" from the return. On filing the petition, an order to show cause was issued and the board of State canvassers directed to refrain from certifying the election until further order.
In support of his petition, plaintiff has filed a number of affidavits and unsworn statements to the effect that at certain times during the election the ballots furnished in 16 precincts in said district did not contain the name of any candidate for representative in Congress, claimed by plaintiff to affect the right to vote of at least 2,500 electors, and that for this reason the board of State canvassers should declare the election void, or in any event should exclude these precincts entirely, in certifying the result of the election. The defendants, answering the petition, deny the truth of these claims, and by affidavit of Oakley E. Distin, director of elections of the city of Detroit, show that the failure to furnish ballots with the names of the candidates for representative in Congress occurred in only four precincts, affecting the votes of only 113 electors, whereby such failure could not affect the result as certified to by the Wayne county board of canvassers.
Defendant O'Brien appears specially and challenges the jurisdiction of the court. We agree with his contention that the final determination as to who *124
is entitled to the office rests solely and entirely with the house of representatives in congress. U.S. Const. art.
The board of State canvassers is a State agency with duties to perform in accordance with State *125 statute law and conceivably there might be circumstances under which the State board might arbitrarily refuse to certify an election where it was the clear legal duty of the State board so to do. This court has jurisdiction to issue a writ of mandamus commanding performance of a clear legal duty by a State agency.
Writ of mandamus will issue to compel public officers and tribunals to perform their duties, when right is clear and specific. National Bank of Detroit v. State Land OfficeBoard,
Writ of mandamus lies only to enforce performance of clear legal right or ministerial duty. Home Insulation Co. v. StateBoard of Tax Administration,
The primary purpose of the writ of mandamus is to enforce duties created by law. Waterman-Waterbury Co. v. SchoolDistrict No. 4,
Mandamus will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts but is designed to enforce a plain, positive duty upon the relation of one who has a clear legal right to have it performed, and when there is no other adequate legal remedy. Toan v. McGinn,
The writ of mandamus is a discretionary writ and should not issue unless there is a clear legal duty on the part of the defendant, and a clear legal right in plaintiff to the discharge of that duty. Taylor v. Isabella Circuit Judge,
Mandamus issues only to compel the recognition of a clear legal right or the performance of a legal duty; it does not issue so long as the right or the *126
duty is disputed or doubtful. Post v. Sparta Township Board,
Precedent for the conclusion that we have jurisdiction to compel a board of canvassers to canvass the votes for the office of representative in congress, and report the result to the secretary of State, is found in Belknap v. Ionia County Boardof Canvassers,
"The house of representatives is made the judge of the election and qualifications of its own members, and it is now well settled that Act No. 208, Pub. Acts 1887 (3 How. Stat. § 234a), under which the recount was had, has no application to such a case. * * *
"A determination of the essential facts in this controversy must depend upon a re-examination by the proper tribunal of the original ballots."
A similar precedent for issuing the writ is found in Dingeman
v. State Board of Canvassers,
"Other cases might be cited, but these are sufficient to demonstrate the rule adopted by this court. Running through all these cases is the rule, to my mind clear and distinct, that wherever by the organic law, whether Federal, State, or municipal, a tribunal is created to finally determine the right to an office, that tribunal is exclusive, and there, and there only, may the right to the office be tested. By the organic law of this State the legislature, sitting in joint convention, is made such tribunal as to the office here involved. By that tribunal, and by that tribunal alone, may the ballots cast for the office of circuit judge be recounted, and the contest for this important office be decided."
In the absence of a recount, the legal duty imposed upon the board of canvassers is purely ministerial. In McQuade v.Furgason,
"If the statements made in the answers of the respondents and the affidavits accompanying them are true, the election law of this State was most grossly violated. But the return by a majority of the board was made, and it is the settled law of this State that canvassing boards are bound by the return, and cannot go behind it, especially for the purpose of determining frauds in the election. Their duties are purely ministerial and clerical. They must be governed by the return. Coll v. Detroit Board ofCanvassers,
"These affidavits are ex parte, and cannot be considered upon this hearing."
It is the clear legal duty of the board of State canvassers to certify the result of the election as shown by the returns. The petition and return in the case at bar raise issues of fact as to how many precincts were affected, how many voters were deprived of the right to vote, and whether the result *128 would have been different if ballots had been furnished. McLeod's claims are squarely disputed by O'Brien. On the face of the returns as canvassed, O'Brien was elected by 1,509 plurality. Whether enough more votes would have been cast for McLeod than for O'Brien to overcome this lead, by the disputed number who did not vote for this office, is a matter of pure speculation. McLeod claims that 2,500 or more votes were affected by the claimed illegality. With O'Brien's plurality of 1,509 votes as certified by the county board of canvassers, a simple computation shows that out of 2,500 more votes, McLeod would have had to receive over 2,000, and O'Brien less than 500, to have changed the result. The director of elections shows by affidavit that only four precincts were without ballots, affecting only 113 votes. Plaintiff asks that we command the board of State canvassers to declare the election void, or to throw out the vote of 16 or more precincts. This would result in disfranchising approximately 5,000 electors who voted in the 16 precincts now referred to. Assuming that the State board might be directed to take testimony, or that this court should (as suggested by oral argument and supplemental brief) take testimony as to the disputed facts, to do so would not determine the result of the election. The final decision rests with the house of representatives in congress. We see no desirable result to be accomplished by taking testimony comparable to the delay in representation in congress from the 13th district for an indefinite period of time. United States statutes provide an adequate method for contesting an election to the house of representatives and for taking testimony before a congressional committee.
Plaintiff relies on People, ex rel. Brown, v. Board ofSupervisors,
The weight of authority in other jurisdictions adheres to the rule of law that where constitutional or statutory provisions make a legislative body the sole judge of the election and qualifications of its own members, the final decision rests in such body, and courts cannot interfere. Williams v. Maas,
We are not unmindful of plaintiff's claim that there were mistakes and irregularities in the election in this district. As to that, while plaintiff disclaims any demand that the State board conduct a recount, the allegations in the petition, and plaintiff's supplemental brief, both point to issues of fact to be determined only by a recount. The petition alleges the result would be changed if illegal votes were excluded, that illegal votes were cast, that ballots were not tallied or returned, that the system of numbering, initialing and tallying was destroyed, that a certain number of tally books were *130 locked up in ballot boxes, "with the result that * * * the votes therein tallied cannot be ascertained unless and until a recount is had as provided by the statute."
The issue before us is whether plaintiff has established a clear legal duty that we should command the board of State canvassers to perform. We find none. An order may be entered setting aside the stay order heretofore directed to the board, and the writ is denied. No costs awarded.
CHANDLER, C.J., and NORTH, STARR, WIEST, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred.