People ex rel. Speed v. Hartwell, 12 Mich. 508

People ex rel. Speed v. Hartwell

12 Mich. 508 | Mich. | 1864

Manning J.:

The motion to dismiss the information, for the reason that the term of the office which respondent is charged with having usurped has expired since the filing of the information, must be denied. If the only object of the proceedings was to oust the incumbent, there would be great propriety in granting the motion. But the statute under which the information is filed provides for the imposition of a fine, in the discretion of the Court, and the payment of costs by respondent should he be found guilty of the intrusion: — Comp. L. § 5312, 5311. And when the office is claimed by another, the information may be so framed, as in the ease before us, as to try the right of such person to the office, who, on obtaining a judgment in his favor, at any time within one year thereafter, may make and file a suggestion that he has sustained damages to a certain amount by reason of the usurpation, and pray judgment therefor against respondent: — Comp. L. §§ 5293, 5297. And such information may be filed without leave of the Court:- — Comp. L. § 5291. When it is necessary to obtain leave of the Court to file the information, the Court may, in' its discretion, refuse to permit the information to be filed. In the case of The People v. Sweeting, 2 Johns. 184, the Court refused to give leave because the term of office would expire, and the office be filled by an election, before the proceeding to oust the incumbent could be made effectual. And in The Commonwealth v. Athearn, 3 Mass. 285, leave was refused on the ground that the term of office would expire before the question could be tried. But in The People v. Loomis, 8 Wend. 396, the Court refused, under a statute like our own, to dismiss although the term of office had expired.

Before speaking of the pleadings, it will be necessary to refer to the city charter, and to the law of the case.

*523By the charter an annual city election is required to be held on the first Tuesday after the first Monday of November in each year, at such places in the several wards as shall be designated by an order of the common council at least twenty days previous thereto, notice of which, and of .the officers to be elected, and of the time for opening and closing the poll, is required to be given within three days after the date of such order, by the city clerk, by publication in two or more daily papers published in the city: — Laws 1857, p. 82, § 1. A city attorney is to be elected, and to hold his office for two years: — Ibid. p. 74, § 1, and p. 77, § 13. And if an office becomes vacant, Jt may be so declared by the common council: — Ibid. p. 80, § 22. And if a vacancy occurs in any elective office, other than Mayor or alderman, the common council are to appoint some person eligible under the charter to serve in such office until the next annual election, when the vacancy is to be filled for the residue of the official term: — Ibid. p. 80, § 26. Such are the provisions of the charter bearing on the questions before us.

The common council declared a vacancy in the office of city attorney, and appointed the. respondent to fill it. And the information states that the relator at the next annual election thereafter was duly elected ' to fill the vacancy, &c.

In the notice of election given by the city clerk, no mention whatever was made of the vacancy. Did this ■omission in 'the notice vitiate the election of the relator?

There can be no doubt had the notice omitted to state that there was to be an election of an alderman in each of the wards of the city at that election, that such omission would not have rendered void the election of such officers. The statute in this particular is directory merely. It is nevertheless the duty of the city clerk to see that it is carried into effect, and if he should wantonly and corruptly omit to give notice of the officers to be elected» *524he may be punished therefor criminally. To go further than this and hold the election void, would place it in the power of the city clerk to defeat the election of any or all city officers to be elected at an annual election. Electors are supposed to know what officers are to be elected at a general election, and, if in doubt, can readily inform themselves. The design of the notice is to remind them of their duty to the public. It is in no way connected with the elector’s right to the elective franchise; nor is it a condition precedent to be performed by another to entitle him to exercise the right. There is a material difference, it is said, between an election for a full term and to fill a vacancy. The charter makes none in the case before us, and we can not make any. We know of no rule of construction by which we can hold the notice both necessary and unnecessary; that is, necessary to the validity of the election of some officers to be elected, and not as to others. The alleged difference is, that an elector may not know of the vacancy, while he is presumed to know of the election of officers for a full term. He must however be presumed to have cognizance of the proceedings of the common council, which are published in the official paper of the corporation. And the vacancy was declared by that body, which, at the same time, appointed the respondent to fill it until it should be filled at a general election.

The first 'plea to the information admits the vacancy, states the appointment of respondent to fill it, by the common council, and says that at the next general election in said city, held on the third day of November, 1863, there was no election to fill the unexpired term. The People reply to this part of the plea, taking issue on the election to fill the vacancy, and conclude to the country. The plea admits the holding of the annual election, but denies it was an election to fill the vacancy. If the views we have expressed are correct, it was an election *525to fill the vacancy, as well as for the election of officers for a new term; and the issue made by the plea and replication for a jury to try is one of law and not of fact. We mention this in passing, not that there is any question in regard to it now before us.

The plea further states, “ nor was there any notice given of such vacancy.” The People in their replication to this part of the plea admit its truth, and set forth in full a notice given of the city election which mates no mention of the vacancy; and conclude with a verification. The respondent demurs, and the People join in the demurrer. Want of notice we have stated does not vitiate the election. The plea consequently is bad. So is the replication, as it tenders an immaterial issue by the new matter set up in it. On this demurrer there must be judgment for the People, as respondent committed the first error.

Respondent’s second plea, like the first, sets up various matters as a defense, none of which are material except the statement that the electors of the city did not vote to fill the vacancy, and that no ballots were cast for that purpose. The plea concludes to the country, and is demurred to by the People, in which the respondent joins, because, first, it offers to put in issue' matter not properly issuable; and because, second, it does not conclude with a verification. It is not demurred to for duplicity. Neither of the objections stated in the demurrer is well taken. . For if there were no votes given at the election to fill the vacancy, the relator could not have been elected, and that part of the plea is therefore material. And it should not conclude with a verification, as it denies, or puts in issue, a material allegation in the information, which states that a large number of ballots to wit, 2800 in number, were cast for the relator to fill the vacancy. The issue formed by the information and plea, is, whether any votes were cast to fill the vacancy *526at the election. If there were not, as we have stated,, the relator oonld not have been elected. The information states that there were, and that the relator received the greater number of such votes; both which facts are material to show his title to the office, and both being material, respondent was at liberty to take issue on either of them.

The third plea is clearly bad, as it relates to the election of respondent for the full term, of which no complaint is made in the information.

There must be judgment for the People on the-demurrer to the second replication to the first plea, and on the demurrer to the third plea, and for the respondent on the- demurrer to the second plea, with leave to the People to withdraw their demurrer to that plea, and add the similiter. Neither party to have costs against the other.

Christianck and Campbell JJ. concurred. Martin Ch. J. did not sit in this case.