Attorney General v. City of Detroit

• Decision Date: 28 December 1889
• Citation: 44 N.W. 388,78 Mich. 545
• Court: Michigan Supreme Court
• Parties: ATTORNEY GENERAL v. CITY OF DETROIT.

44 N.W. 388

78 Mich. 545

ATTORNEY GENERAL v. CITY OF DETROIT.

Supreme Court of Michigan

December 28, 1889

Petition for mandamus.

E. F. Conely and Wm. P. Wells for relator. J. W. McGrath and F. A. Baker for respondent.

MORSE J.

At the last session of the legislature an act was passed, entitled "An act to preserve the purity of elections, and guard against abuses of the elective franchise, in the city of Detroit." This act was approved by the governor July 1 1889, upon which day it took effect, and became operative. Local Acts 1889, p. 994.

The relator, in his petition, sets forth that the common council of the city of Detroit has neglected and failed to comply with the law, and still fails and neglects to do so, although well aware that the necessity of such compliance is reasonable and urgent; and that he believes that said common council intend to ignore the act entirely, and that such body intend to hold the city election to take place in November 1889, under the registration and election laws in force before the passage of this act, the same in every respect as if no such act had been passed. The attorney general therefore asks that this court issue a peremptory mandamus to compel said common council to resubdivide into election precincts or districts, containing each not more than 300 electors resident therein, such wards of the city of Detroit as may require it, under this act, and to provide suitable and proper means for the registration of electors upon such subdivision or rearrangement as the circumstances may require. The relator, from the records in the city clerk's office, makes a showing of the number of votes cast in each election district now existing in said city, 61 in number, at the November election in 1888. This showing, under the act, would necessitate the creation of 68 additional precincts, making a total of 129. Section 1 of the act provides: "That, as soon as possible after this act shall take effect, the common council of the city of Detroit shall by ordinance, if it shall appear that at the election held in November, 1888, or at the election held in April, 1889, more than 500 votes were cast in any election precinct, again divide the ward or wards in which such precinct or precincts may be, and establish new election precincts or districts therein, if necessary, or rearrange the same so that each precinct shall contain, as near as may be, an equal number of electors, no precinct to contain more than 300 electors resident therein; and as often as it shall appear, after any election thereafter held, that more than 600 votes have been cast in any election precinct, said precinct shall, within six months after said election, again be subdivided, or the precincts of the entire ward be rearranged and divided, so that each precinct shall contain 300 electors, as near as may be, resident therein." And section 2 provides that for the registration, as provided by the act, to be held in 1889, the inspectors of election selected at the last election shall act, and hereafter four persons for each election precinct, respectively, residents and electors therein, shall be selected in the manner now by law provided for the selection of such inspectors in said city, to act as a board of registration for such precinct, and such board shall elect one of its number as chairman. Section 3 constitutes these boards of registration election inspectors, and, in case of the unavoidable absence at any time of any member of the board, the remaining members may temporarily appoint another person to act in his stead until he appears. The remaining 23 sections of the act relate to the manner and effect of the registration of voters, some of which sections will be noticed hereafter.

The common council of the city of Detroit, in answer to the order to show cause why the writ of mandamus should not issue to compel them to obey this law, say: "(1) That a compliance with the law would create in all 129 voting districts. The expense of such compliance for the approaching municipal election would be over $23,000, and probably $25,000. That the amount to be raised for this purpose upon the assessment and levy for taxes this year is but $6,000. The act was passed after such assessment and levy, and makes no provision for the expense attending and necessary to its execution. There is no money in the contingent fund of the city, and such expense can lawfully be paid from no other fund. (2) There are at least 35,000 voters in the city of Detroit, of whom there are at least 5,000 foreign-born electors, who have taken out their naturalization papers, or declared their intention to become citizens, without the state of Michigan. That large numbers of persons so naturalized in other states have voted, from year to year, from five to forty years, within the city of Detroit, and their citizenship has been open and notorious, and their qualifications as electors conceded. That many of them have not now their citizenship papers, but the same have been lost or destroyed. In many instances it would be impossible to procure certified copies of the same, or any record evidence of their issue; but said electors are able to procure abundant evidence of the exercise of the rights of citizenship, and of electors. That under laws heretofore existing these men have been able to produce sufficient evidence of their rights as electors, but that the act under consideration here practically disfranchises these, at least 15,000, people, who are in fact and in law qualified voters in said city. (3) That this law will also disfranchise a large number of electors, residents of Detroit, who do business outside of and away from said city, as such persons will necessarily be absent from the city during the days fixed by this act for registration. (4) It will also disfranchise those persons who from sickness are unable to appear before the boards of registration on such days. (5) It will disfranchise those moving from one ward to another after the last day of registration, who are electors under the constitution and general laws of the state as to qualifications of voters. (6) That there are at present 5 duly-elected election inspectors in each of the present 61 election precincts. That for these reasons, and for other good and substantial reasons appearing upon the face of the law, the act is inoperative, burdensome, unreasonable, unconstitutional, and void."

Upon hearing and argument of this matter upon petition and answer, we, on the 11th day of October, 1889, denied the application for the writ. The reasons for so doing will now be stated.

The first objection, as to expense, we did not consider, as it could not be alleged as a sufficient reason for not obeying a valid law.

But a serious difficulty arises in the outset, as to the operation of this law. If we were concerned only with the question of dividing the wards of the city into election districts containing not more than 300 electors,-certainly a desirable thing,-there could be no hesitation in granting the writ; but the object of this law is not simply to create voting districts where the electors shall not exceed this number but it is a scheme for a new system of registration, and requiring that all persons not complying with the rules and regulations of such registration shall not be permitted to vote, under any circumstances whatever, under heavy penalties. The machinery for the approaching municipal election is not provided by the law, except as it undertakes to provide the same from the law now in force, and which it undertakes to repeal. By this neglect to provide for this emergency, we think the act is inoperative. There are now 61 election districts, with 5 inspectors in each, making in all 305 inspectors. Under this act there must be 129 districts. Under section 1 of the act, by the statement of votes cast in November, 1888, found in relator's petition, there are but 3 wards-the Fourteenth, Fifteenth, and Sixteenth-that will be undisturbed. In the other 13 wards there are precincts in each that cast over 500 votes. These wards must be rearranged and subdivided, and 120 districts created, in all, therein. There are 3 precincts each in the remaining wards. An inspector cannot act out of his own precinct; and consequently 45 of those now in office will remain in these 3 wards, as before. But, of the remaining 260 inspectors who are to act in the 120 districts to be created, none of them can act out of the wards or precincts in which they live. As far as their duties as inspectors of election are concerned, there would be no trouble, as the people at the opening of the polls would have an undoubted right to fill all vacancies by election on the spot, or to create an entire new board, if there were no inspectors left in such precinct by the new division and arrangement of the ward. But it is different with such inspectors acting as a board of registration before election day. The authority to fill vacancies, or to create an entire new board of registration, must be found in the laws. There is no inherent right in the people to do it. This law makes no provision for filling any vacancies in the inspectors acting under the present law. There are but 260 inspectors for 120 districts,-a fraction over 2 for each. It must necessarily happen that in the new subdivision of these wards some precincts will have more than their proportion residing within their limits, and some less, and some will have none. If any precinct should, in such division, be left without any inspectors residing within it, the inevitable result, under this act, would be the disfranchisement of the electors of such precinct for want of registration. People v. Kopplekom, 16 Mich. 341. There is no provision in this act providing...