Attorney General v. McQuade

• Decision Date: 24 December 1892
• Court: Michigan Supreme Court
• Parties: ATTORNEY GENERAL ex rel. SEAVITT v. McQUADE.

53 N.W. 944

94 Mich. 439

ATTORNEY GENERAL ex rel. SEAVITT v. McQUADE.

Supreme Court of Michigan

December 24, 1892

Quo warranto proceedings by the attorney general on the relation of John Seavitt, Jr., against Peter McQuade to test the right to the office of township clerk. There was an answer, replication, and rejoinder. Remanded for amendment of pleadings and trial.

Charles C. Stewart and John B Corliss, for relator. George H. Prentis, for respondent.

GRANT J.

This is a quo warranto proceeding to test the right to the office of township clerk of the township of Ecorse, in Wayne county. The answer to the information alleges that respondent was duly elected to said office at the township election held April 4, 1892; that relator and respondent were the two opposing candidates for said office; that there were two election districts; that respondent received 340 votes and relator 331; that respondent was declared elected by the board of canvassers; that certain illegal votes were cast for relator; and that respondent duly qualified, and entered into said office. The relator, in his replication, alleges that a good and valid election was held in district No. 1, where he received 260 votes and respondent 201. It then proceeds as follows: "The returns from district No. 2 showed 139 votes for the respondent, and 71 for the relator, whereas, in truth and fact, there was no valid election in said district No. 2, because of the willful and fraudulent conduct of the chairman of said board, Hyacinth Riopelle, who openly and fraudulently put into the ballot box 13 ballots or votes of persons who were not registered, and a large number of ballots or votes of persons who had shown their ballots after the same had been marked, to wit, 75; that the same was done by said Hyacinth Riopelle willfully and maliciously for the purpose of injuring the said relator; that the said Riopelle refused to swear an inspector for the purpose of marking ballots of incompetent voters in the presence of two inspectors, as required by law, and allowed and instructed third parties to enter the polling booths with a large number of electors, to wit, 75, and that after the tickets of voters, to wit, 75, had been so marked by third parties in the polling booths, the said Riopelle fraudulently and willfully, and to injure the relator and others on the ticket with him, placed said ballots, to wit, 75, in the ballot box; that a large number of such votes thus illegally and fraudulently put into the ballot box by said Hyacinth Riopelle, to wit, 65, were counted in favor of the respondent; that by reason of the aforesaid conduct of the said Hyacinth Riopelle the returns of precinct No. 2 are utterly invalid, and the election in said precinct vitiated and unworthy of any credit whatever, and the said relator is justly and legally elected by a majority of 59 votes." It is unnecessary to state any other allegation in the replication, since the question involved arises upon those above stated, the relator insisting that, if these allegations be true, the vote in district No. 2 was void, and must be thrown aside. To this replication the respondent did not demur, but interposed a rejoinder. The above allegations in the replication are neither traversed nor confessed and avoided. The matters therein stated, being traversible, must therefore be taken as confessed and true. Steph. Pl. 217; 1 Chit. Pl. (8th Amer. Ed.) 623; McCrary, Elect. � 405. To this rejoinder the relator demurred.

The question, therefore, presented for our determination is, did the conduct of Chairman Riopelle, and those acting under his direction, vitiate the vote of district No. 2? Under our statutes no unregistered person possesses the right to vote. If such person is unable to attend the meetings of the board of registration for certain specified reasons, he may be registered on election day upon taking the prescribed oath. How. St. � 93. The election in this case was held under Act No. 190, Pub. Acts 1891, the title to which reads: "An act to prescribe the manner of conducting, and to prevent fraud and deception at, elections in this state." A similar law was before this court in Common Council v. Rush, 82 Mich. 532, 46 N.W. 951 To view preceding link please click here in which certain defects in the then law were pointed out. The present act was evidently passed to cure those defects, and to provide more stringent regulations to preserve the purity of elections. What was there said in regard to the necessity, wisdom, and validity of such a law applies equally to the present case and no repetition is necessary. The elector is required to enter the booth alone, after receiving his ballot from the inspectors, and prepare his ballot concealed from the view of all other persons. He must then fold his ticket so that no part of its face shall be exposed, and with the initials of the inspector on the outside, and hand the same to the inspector, who shall deposit it in the box. If he expose his ballot to any person aside from the inspectors authorized to assist him it must be rejected. Sections 21, 26. If the elector shall make oath that he...