Common Council of City of Detroit v. Rush

• Decision Date: 14 October 1890
• Citation: 46 N.W. 951,82 Mich. 532
• Court: Michigan Supreme Court
• Parties: COMMON COUNCIL OF THE CITY OF DETROIT v. RUSH.

46 N.W. 951

82 Mich. 532

COMMON COUNCIL OF THE CITY OF DETROIT v. RUSH.

Supreme Court of Michigan

October 14, 1890

Mandamus.

B. W. Huston, Atty. Gen., (Alfred Russell and Don M. Dickinson, of counsel,) for relator. C. S. McDonald and Edward Minock for respondent.

GRANT J.

The common council passed a resolution, requiring the respondent to take the necessary action to carry into effect the election law of 1889 (Act No. 263) at the coming election. He refused, alleging two grounds therefor: (1) That the act is unconstitutional and void; (2) that the booths and railings will cost a large sum of money, and no provision has been made by the law for paying the expense. Petition for mandamus is filed to compel action upon the part of respondent. The act is entitled "An act to prescribe the manner of conducting, and to prevent fraud and deception at general elections in this state." Its validity is the only question involved. The provisions of the act do not apply to municipalities whose elections are governed by special enactment, except in so far as they relate to the ballot and booths to be used, as provided in sections 8, 9, 10, 11, 20, and 21. These provisions are therefore the only ones in controversy here. They read as follows: "Sec. 8. At every general or special election held in this state after the passage of this act, each elector shall vote by ballot, and shall, in full view, deliver to the chairman of the inspectors of election a single ballot or ticket, on which shall be written or printed, or partly written and partly printed, the names of the persons voted for, with proper designation of the office which he or they may be intended to fill. No ballot or ticket shall bear upon the outside thereof any impression, device, color, or thing, designed or liable to distinguish such ballot or ticket from other legal ballots or tickets, whereby the same may be known or designated. No ticket shall be used at any such election or circulated on the day of such election, unless furnished by the secretary of state for such purpose; and it is hereby made the duty of the secretary of state to procure and furnish, on application and payment to him of the actual cost, with ten per cent. added thereto by the state central committee, county or other managing committee of any political party or organization in this state, such quantity or amount of ballots to be used at such approaching elections as may be deemed necessary or convenient. All ballots to be of the same width and length. Sec. 9. It shall hereafter be the duty of the state central committee, county committee, or other managing committee of any political party or organization in this state, before each election in this state, to prepare and adopt by engraving or otherwise, a ticket vignette or heading, with an appropriate inscription, to be printed at the top of the ticket of the party, on the inside thereof, as a distinctive and characteristic heading thereto. Such vignette or heading shall not be more than two inches high by four and one half inches wide, and, in addition to the device adopted, shall set forth legibly the fact that the ticket is the regular ticket of the party with the name thereof. It shall also show the congressional, senatorial, and representative districts, and county where such ticket may be lawfully voted. Sec. 10. When such vignette and inscription shall have been adopted and prepared, an impression of the same, followed by the regular ticket of such party, printed so as to constitute a lawful election ballot, and sealed up in an envelope, shall be filed with the county clerk of the county where such election is to be held, at least ten days before the opening of the polls at such election. Such ballot shall be kept by such clerk on deposit, and from the time of said filing it shall be unlawful for any person to imitate, copy, or in any manner counterfeit the same. Any person violating the foregoing provision shall, upon conviction thereof, be punished by a fine not exceeding one thousand dollars, or by imprisonment in the state-prison for the term not exceeding one year, or both, in the discretion of the court. Sec. 11. Any person who shall knowingly print, circulate, distribute, or cause to be distributed, any ticket or tickets, ballot or ballots, having thereon the vignette, or any imitation of the vignette, or inscription of any ballot or ticket so filed with the county clerk, but containing the name or names of any candidate or candidates other or different from the name or names upon the ballot or ticket of such party so filed or deposited with said clerk, or who shall intentionally destroy or carry away any ballot or ballots, except for his own use in voting, which shall have been furnished by the inspectors of election for such purpose, shall, upon conviction thereof, be punished by a fine not exceeding one thousand dollars, or by imprisonment in the state-prison not exceeding one year, or by both such fine and imprisonment at the discretion of the court; provided, that nothing in this act shall be construed to interfere with the right of any elector to erase or insert any name or names upon such ticket, if done in writing, or by printed slips by the elector himself." "Sec. 20. In all townships containing one hundred or more electors, and in all voting precincts in cities and villages, the township board of each township, and the various officers whose duty it may be to designate and prescribe the place or places of holding general elections in the several cities, wards, election districts, and voting precincts throughout the state, shall, and in all townships having less than one hundred electors may, provide for, and cause to be erected in the room where elections are to be held, a railing or fence four feet in height, which railing or fence shall be placed through and across the center of the room, and shall cause a gate to be erected in said railing, and said gate shall be in charge of a gate-keeper appointed at the opening of the polls by the board of inspectors, and no person shall be allowed to be inside of said railing except to vote, and, as soon as the elector has voted, he shall retire without, and shall not again be admitted within, the railing, and only as many electors as there are booths shall be allowed within the railing at one and the same time, and the electors shall be admitted in the order in which they shall apply. The entrance gate shall be erected or placed at one side of the room, and on the inside of the said gate a booth or temporary room shall be erected. At least one such booth shall be provided at each polling place, and not less than one for each hundred persons entitled to vote thereat, and one booth additional for any additional number of voters less than one hundred and more than twenty-five, with walls not less than six feet high, and in such a manner that, as the elector passes in at the gate to the room where the ballots or tickets are taken by the inspectors of election, he shall pass through said booth or temporary room, and be concealed from the view of the inspectors of election and those without the said railing while passing through said booth. Said railing shall also contain an exit gate at a convenient place for voters to pass out. Sec. 21. Before the opening of the polls of any election within the provisions of this act, the inspectors of election shall cause to be hung up or deposited within the booth in the polling

place, and in towns where no booths are provided, by placing on a table or desk near the polling place, in separate packages, tickets of all political parties, and pasters or slips for the several candidates, if desired and furnished by them, to be voted at said election, for the use of electors and the inspectors of election shall cause said tickets to be replaced when used, so that tickets shall be so hung up or on deposit during the entire time that the polls are open." The constitution of Michigan contains three provisions upon the subject,-sections 1, 2, and 6 of article 7. Section 1 provides who shall be an elector, and that the legislature may provide the way in which his vote shall be cast. Section 2 provides that all votes shall be by ballot. Section 6 provides that laws may be passed to preserve the purity of election, and guard against abuses of the elective franchise. Under these broad provisions, it has been frequently held to be the exclusive province of the legislature to enact laws providing for the registration of voters, and the time, place, and manner of conducting elections. It may regulate, but cannot destroy, the enjoyment of the elective franchise. Whether such regulations be reasonable or unreasonable is for the determination of the legislature, and not for the courts, so long as such regulation does not become destruction. Attorney General v. City of Detroit, 44 N.W. 388. Courts will not declare the law invalid, because its enforcement might result in the restriction of the right to vote, else the registry laws would have been held void. Yet these laws have been universally sustained, on the ground of wise and necessary regulation. In 1832. Chief Justice SHAW sustained them, on the ground that they tended to "promote peace, order, and celerity in the conduct of elections, and as such to facilitate and secure this most precious right to those who were by the constitution entitled to enjoy it." Capen v. Foster, 12 Pick. 485. The principles then enunciated have been adopted by this court in numerous cases. Twitchell v. Blodgett, 13 Mich. 127; People v. Kopplekom, 16 Mich. 342; Attorney General v. Common Council, 58 Mich. 213, 24 N.W. 887. When power is conferred upon the legislature to provide instrumentalities by which certain objects are to be accomplished, the...