144 Mich. 57 | Mich. | 1906
Relator was candidate for re-election to the office of mayor of the city of Marquette at the annual city election, held April 2, 1906, and, as shown by the returns from the several wards of the city, was defeated. He filed with the recorder of the city a petition for a recount of the votes cast for mayor at said election in the first, second, and fifth wards of said city, deposited the proper amount of money, and served upon the opposing candidate a copy of his said petition. The errors, mistakes, and frauds complained of were:
“(a) That in each of said wards, as your petitioner is informed and believes, votes were counted for said Culver in said canvass, which because of distinguishing marks, mutilations, and other invalidities appearing upon the face thereof, and elsewhere, ought not to have been counted.
“ (b) That in each of said wards, your petitioner is also informed and believes, votes cast for your petitioner for said office were thrown out and not counted for your petitioner because claimed to have some distinguishing mark, or to be mutilated or otherwise invalid, which ought to have been counted for your petitioner.
“ (c) That in each of said wards, as your petitioner is informed and believes, votes cast for your petitioner for said office were not counted and returned as cast for him.
“(<2) That in each of said wards, as your petitioner is informed and believes, votes were counted and returned as cast for said Rush Culver, for said office which were not in fact so cast.
“ (e) That in each of said wards, as your petitioner is informed and believes, the several boards of election inspectors returned a less number of votes as cast for your petitioner for said office, than were in fact cast for him.’’
The matter was presented to the common council at a
The first reason assigned by the common council for declining to entertain the petition for a recount is based apparently upon the idea that the common council of the city of- Marquette is not a canvassing board within the meaning of section 3725, 1 Comp. Laws. The charter provides:
‘ ‘ Upon the Thursday next following the day of said election the common council shall meet at the office of said recorder and thereupon determine who, by the greatest number of votés given in the several wards at such election, are duly elected to fill the respective city offices. ” Act No. 249, Local Acts 1891, chap. 5, § 1.
We have no doubt that the common council of the city is a board of canvassers within the meaning of the section referred to.
It is true the petition for a recount does not assert, upon the knowledge of relator, any errors in the count of votes. The averments made upon information and belief are very general. It is also true, however, that slight changes in one or all of the wards specified, if in relator’s favor, without corresponding changes in favor of Mr. Culver, tvill be sufficient to change the result announced. The petition is verified, the statute a beneficial one. Under all of the circumstances, we must decline to hold the petition insufficient.
The constitutionality of Act No. 208, Pub. Acts 1887, as amended by Act No. 267, Pub. Acts 1897 (section 3725, 1 Comp. Laws), is questioned by counsel for respondents, upon the ground, generally, not that the act is in direct conflict with the Constitution, but that it cannot be carried into execution unless by common consent, and reliance is placed upon the opinion of this court in Andrews v. Otsego Probate Judge, 74 Mich. 278. In that case, the court had under consideration Act No. 293, Pub. Acts 1887. The defects in that act pointed out by the court do not inhere in the statute which we are considering. The members of the board of canvassers of the city of
The writ will issue, commanding the common council to meet within ten days after notice of the issuing of the writ and within the same time proceed to a recount, according to the provisions of the statute, of the ballots cast for the office of mayor in the first ward of the city of Marquette, and the ballots cast for the same office in the fifth ward of the city of Marquette, provided an inspection of the ballot box of the fifth ward shall show that it was, after the election, fastened and sealed in the manner required by the statute, and that there has since been no tampering with the fastenings of the box.