People ex rel. Williams v. Cicott

Decision Date13 January 1868
Citation16 Mich. 283
CourtMichigan Supreme Court
PartiesThe People ex rel. Gurdon O. Williams v. Edward V. Cicott

November 12, 1867; November 13, 1867, Heard [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Quo warranto.

Motion for a new trial.

The information in this cause was filed by the relator, Gurdon O. Williams, to test the right of Edward V. Cicott to hold the office of sheriff for the county of Wayne.

At the April term, 1867, a motion was made in this court for a change of venue, but which was denied (15 Mich. 326), whereupon an order was entered that the issues of fact in said cause be sent down to the Wayne circuit court for trial, and that the circuit judge make a report thereon of the proceedings before him.

The jury rendered a verdict that the said Edward V. Cicott received a greater number of the lawful votes cast in the county of Wayne, for the office of sheriff than were given for any other person for said office.

The circuit judge made a report of the proceedings of said trial, and certified that he was satisfied with the verdict.

The motion for a new trial is based upon said report.

Ballots with initials not allowed.

Maynard & Meddaugh and A. Pond, for relator:

1. A new trial will not be granted unless the court is satisfied upon a full view of the case, that with the same evidence a second trial must result in a verdict for the relator.

This must be the result of a second trial, unless the discrepancy between the poll list and the ballots in the sixth ward renders the election there void as to sheriff.

On this point we make the following proposition:

That where the excess of ballots in a single ward or town over the names on the poll list is greater than the aggregate majority of a candidate in the county, the election in such ward or town is not thereby rendered void as to him, but the entire ballots will be presumed to have been legally cast, in the absence of any evidence to the contrary.

There is no evidence tending to throw a suspicion even upon the ballots of this ward.

The inspectors, having once counted and found that the ballots and poll list agreed, had no power, after the canvass disclosed a discrepancy, to correct it. Whatever is done by them in this way must be before the ballots have been opened, not afterwards: 1 Comp. Laws, § 62.

The poll list is not entitled to be made the standard of the number of votes polled when the parties come into court to try title to an office. The statutory provision is an arbitrary method of solving the difficulty by cutting the knot, and its operation is limited to, and spent on, the inspectors: 1 Comp. Laws, § 62.

Finding the ballots in the proper custody, preserved as the law directs, in the absence of all evidence tending to create a suspicion as to their genuineness, they must be presumed to be the identical ballots cast at the election in question. In the absence of all evidence to explain the discrepancy between the ballots and poll list, a mistake in the latter will be presumed, rather than fraud either in the electors or inspectors. This discrepancy is not so great but it is within the hypothesis of a mistake

2. But the excess of ballots over the names on the poll list in the sixth ward does not equal the clear and undoubted majority of the relator, provided the gain of the recount in Dearborn should have been allowed to him. The judge erred in leaving this question to the jury. There was nothing in it for them to pass upon.

Before the ballots were admissible in evidence at all, it became necessary to make a prima facie case in favor of their identity as the ballots cast at the election in question. This prima facie case was made, and the ballots were admitted. The evidence on this point was addressed to the court, not to the jury. Unless the judge erred in admitting the ballots, there was error in afterwards submitting the question of their genuineness to the jury.

But it is said that prima facie the inspectors' statement is correct. Our reply is that this presumption is overcome by the ballots themselves, as to which there was a prima facie case of genuineness made out.

The presumption as to the statement goes simply to the accuracy of the inspectors' work, while the prima facie case made in favor of the ballots goes back of the work of the inspectors, to wit: to the ballots themselves, which are the highest possible evidence of the result of the election.

Is the court willing to lay down the rule that when it is sought to show, either in a proceeding of this nature, or in any other, that the inspectors of an election have certified a false statement, and the ballots, so proven as to be presumptively genuine, are put in evidence for that purpose, the jury shall be at liberty, in the absence of all other evidence, to accept such statements instead of the ballots?

But we further insist that the inspectors' statement is not evidence at all--certainly not until the absence of the ballots is accounted for.

The statute makes it evidence to the board of canvassers; that is its purpose and object, and, having answered that, it is dead. It can never afterwards be revived, unless in an inquiry into the action of the inspectors or canvassers.

The question here is not what the inspectors did, but who received the greatest number of votes for the office of sheriff.

The eight ballots gained in Dearborn by the recount should, therefore, be allowed to the relator.

3. The circuit judge also erred in refusing to allow the relator the five ballots referred to in the eighth error assigned in our motion.

As to the one reading "Sheriff, Gurdon O. Williams," and which is defective only in omitting the word "for," there surely can be no question.

Why should not the other four be counted and allowed for the relator?

The case of the People v. Tisdale, 1 Doug. 59, goes upon the ground that the statute requires the entire Christian and surname to be written out in full.

We submit that the statute does not so require: 1 Comp. Laws, §§ 47-8.

"Containing the names of the persons for whom the elector intends to vote," is the language.

What does this language mean except that the ballot shall itself indicate the will of the elector? Was anything more ever intended by the legislature? Conceding for the present that its purpose may have been to prevent the introduction of any evidence outside of the ballot, was not this its only purpose?

Is not the will of the elector unerringly indicated in every instance in the four ballots in question? Is there any doubt, taking the ticket together, and the attendant circumstances, apparent to the inspectors as to the court and jury, what the intention of the electors was as to sheriff, in casting these ballots? There can be none.

The cases in New York sustain the case of People v. Tisdale in part only. The doctrine of the People v. Ferguson, 8 Cow. 102, that the initial letter of a candidate's Christian name on a ballot does not authorize the allowance of the ballot for him, is still the law in that state.

And the same rule seems to prevail in Wisconsin: Attorney-General v. Ely, 4 Wis. 420.

We are not aware that the courts of any other state except our own sustain this rule.

a. A slip pasted on the ticket, though not over the name of the opposing candidate whose name may remain, shows clearly the intention of the voter, and the slip should be allowed: People v. Saxton, 22 N. Y., 309.

b. There being no evidence before the court explaining these ballots, their meaning or the voter's intention was for the court and not the jury: 2 Pars. on Cont., 492; 8 Met. 573; 19 Ill. 29; 23 How. 420.

4. The judge erred in refusing to admit the testimony offered in explanation of these ballots: People v. Ferguson, 8 Cow. 102.

We enter into no argument upon this proposition in answer to the cases of People v. Tisdale and People v. Higgins, but assume that this court is fully convinced of the error of the rule there established, and which has marred the symmetry of our law on the subject of evidence already too long.

5. There was error in the ruling of the judge permitting testimony to show the mental condition of the witness, Cabot.

The constitution has not made intelligence or sanity one of the qualifications of an elector, and the courts can not do so: Const., art. 7, § 1.

If the question of a voter's sanity can be tried, so can that of his intelligence. Drunkenness itself would disfranchise.

At all events, until the voter's mental condition or status has become fixed by judgment of the proper tribunal, we submit the question can not be inquired into. The court will not try that question in an issue like the present.

6. It should not be permitted to inquire for whom an elector voted, or to show that persons voted who were not electors.

This proposition embraces the 6th and 7th errors assigned in our motion.

The provisions of our law with reference to elections are all against it. Voting is to be by ballot: Const., art. 7, § 2.

Ballots are to be folded up by the elector, and so handed to the inspector, who is not to open or permit them to be opened: Comp. L., pp. 107, 323-8.

The purity of elections does not demand that this inquiry be made. Convictions for illegal voting may be had without it.

We call attention to the dissenting opinion in People v. Pease, 27 N. Y., 45.

It is a significant fact, and one entitled to some weight in this connection, that the judges of the Supreme Court and court of appeals of New York, where there have been more of these election controversies than in any other state of the Union stand...

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