Stebbins v. Judge of Superior Court of Grand Rapids
| Citation | 108 Mich. 693,66 N.W. 594 |
| Court | Supreme Court of Michigan |
| Decision Date | 24 March 1896 |
| Parties | STEBBINS ET AL. v. JUDGE OF SUPERIOR COURT OF GRAND RAPIDS. |
Petition by Charles D. Stebbins and others for a writ of mandamus to compel the judge of the superior court of Grand Rapids to vacate an order granting an injunction. Denied.
By the charter of the city of Grand Rapids, the municipality is authorized to purchase, among other things, a city market and to issue bonds therefor, under the limitation contained in the following provision: "Nothing in this act contained shall be so construed as to authorize the incurring of any bonded indebtedness against said city of Grand Rapids for any of the purposes above specified, unless the qualified electors of said city, voting in their respective wards shall have authorized the issuing of said bonds by a majority of their votes cast at any regular election, or at a special election called for the purpose of voting upon such question." The common council, under the authority conferred upon it by the charter, submitted to the electors at the general election held in 1895 the question of bonding the city for $75,000, to purchase a site for a public market and to erect and maintain market buildings thereon. Only one ballot was used, which contained the names of all the candidates and the bonding proposition. All the ballots were deposited in one box in each voting precinct. The number of electors voting at this election, as shown by the poll list was 12,579. The total vote upon the bonding question was 7,024 of which 3,874 were for, and 3,150 against, the proposition. The common council declared the proposition carried, voted to issue the bonds, advertised them for sale, received and approved a bid. Thereupon a taxpayer filed a bill of complaint to restrain the issuing of said bonds, alleging that such issue was unauthorized; and a temporary injunction issued. The relators applied to this court for the writ of mandamus to compel the vacation of this restraining order.
Henry J. Felker (Taggart, Wolcott & Ganson, of counsel), for relators.
Thompson & Temple (Taylor & Eddy, of counsel), for respondent.
GRANT, J. (after stating the facts).
On account of the public necessity for a speedy determination of the question, we decided to hear it upon this proceeding. It is contended on behalf of the city that a majority of the votes cast upon the question of bonding controls; while on the part of the respondent it is contended that the majority of all the votes cast at the election must control. The authorities are very numerous, and are not in harmony. An examination of them will show that the phraseology of the constitutional and statutory provisions in the various decisions differs, and the courts have had no little trouble to determine the clear legislative intent. The relators cite as supporting their position, the following authorities Gillespie v. Palmer, 20 Wis. 572; State v. Grace, 20 Or. 154, 25 P. 382; State v. Echols, 41 Kan. 1, 20 P. 523; Commissioners v. Winkley, 29 Kan. 36; Walker v. Oswald, 68 Md. 146, 11 A. 711; Yesler v. Seattle, 1 Wash. St. 310, 25 P. 1014; Sanford v. Prentice, 28 Wis. 361. Dayton v. City of St. Paul, 22 Minn. 400; Metcalfe v. Seattle, 1 Wash. St. 297, 25 P. 1010. Gillespie v. Palmer fully sustains the relators' contention, and, if it were accepted as the law, it would control the present case. The soundness of that decision was questioned in Sawyer v. Insurance Co., 37 Wis. 524, in which it was said that it had been subjected to the criticism that the court decided it in accordance with the "logic of the war," rather than by the "logic of the law." In Bound v. Railway Co. 45 Wis. 579, Chief Justice Ryan characterized it as a reproach to the court, and a judgment proceeding upon policy rather than upon principal. It is expressly repudiated in State v. Babcock, 17 Neb. 194, 22 N.W. 372, and State v. Lancaster Co., 6 Neb. 474, and is criticised in other courts. While we have great respect for the supreme court of Wisconsin, we do not think that that decision is supported by reason or authority. In State v. Grace the law provided that, "at the next general election, the question of the location of the county seat shall be submitted to the legal voters of the county, and the place receiving a majority of all the votes cast shall be the permanent seat." The reasoning by which the court reached the conclusion that the majority of the votes cast upon the removal, and not of all the votes cast at the election, should control, is found at pages 161 and 162, 20 Or., 382, 25 Pac. The conclusion is based largely upon the peculiar phraseology of the statute. In State v. Winkley the statute contained no such limitation as is found in the case now before us. The statute in that case simply provided for submitting the question of a bounty to the electors at a general election. It was there provided that, "if a majority of the votes [cast] are for the bounty," the law shall be declared in force. In State v. Echols the law required the question to be submitted to the voters of the county at a general or special election, and provided that "after said election the ballots on said question shall be canvassed in the same manner as in the election for county officers, and if the majority of all the votes cast shall be in favor of establishing such high school," etc.; and the case is decided to be ruled by State v. Winkley. In Dayton v. City of St. Paul the question arose upon a provision of the constitution relating to alterations of or amendments to it. That provision required a "majority of the voters present and voting." Under this general language, a majority of those voting upon an amendment was held sufficient. It was also held in the same case that a provision similar to the one now involved required a majority of all the electors who voted at the election. The constitution provided for submitting to the electors the question of constitutional conventions, and provided that, "if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall provide for calling it." It was held that the use of language so different...
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