Ellis v. May

• Decision Date: 30 March 1894
• Citation: 58 N.W. 483,99 Mich. 538
• Court: Michigan Supreme Court
• Parties: ELLIS, Attorney General, ex rel. REYNOLDS v. MAY.

58 N.W. 483

99 Mich. 538

ELLIS, Attorney General, ex rel. REYNOLDS v. MAY.

Supreme Court of Michigan

March 30, 1894

Quo warranto by Adolphus A. Ellis, attorney general of the state of Michigan, on the relation of Henry M. Reynolds, against William May, to test title to the office of clerk of Wayne county. After the issues were settled, the case was sent to the circuit court, Oakland county, for a trial to a jury which found that relator received the greater number of votes. The trial court returned the proceedings to the supreme court, and relator asks judgment of ouster against respondent. Judgment for relator.

For prior report, see 56 N.W. 1035.

Jasper C. Gates and John B. Corliss, for relator. Edwin F. Conely, F. A. Baker, and Orla B. Taylor, for respondent.

LONG J.

This is an information in the nature of quo warranto to determine the question whether the relator or the respondent received the greater number of legal votes cast in the county of Wayne at the general election held November 8, 1892, for the office of county clerk. The original election returns, as certified by the inspectors of election and returned to the office of the county clerk, show that the relator received 26,821 votes and the respondent 26,799, or a majority for the relator of 22 votes. A recount was had under Act No. 208 of the Public Acts of 1887 (3 How. St. � 234a), by which it was shown that the respondent received 26,847 votes, and the relator 26,729 or a majority for the respondent of 118 votes; and the board of county canvassers were directed to issue the certificate to the respondent. May v. Board, 94 Mich. 505, 54 N.W. 377. In the present proceeding eight replications were filed to respondent's plea. Respondent demurred to these replications. The cause was heard on these demurrers at the October term, 1893, and the demurrers overruled, with leave to the respondent to plead over. The decision of these questions is reported in Attorney General v. May, 97 Mich. 570, 56 N.W. 1035. Rejoinders were filed by respondent to these replications, denying the facts therein set forth and putting himself upon the country. The cause was subsequently sent down to the Oakland circuit court for trial of these issues of fact. Forty-nine special questions were submitted to the jury for their findings, and, by their answer to question No. 46, they have found that Henry M. Reynolds received the greatest number of votes cast for that office, and that he had a majority over May of 1,926 votes. The trial court has returned the proceedings into this court, and relator now asks judgment of ouster against respondent.

The cause has been very ably argued upon both sides, and the issues now to be determined are narrowed down to two or three points. The principal question is raised under the sixth replication, the substance of which is set out in Attorney General v. May, 97 Mich. 572, 56 N.W. 1035. In that it is alleged that in the fourth precinct of the Fifth ward of the city of Detroit the chairman of the board of inspectors of election illegally and wrongfully received 750 ballots, and illegally and wrongfully deposited the same in the ballot box, said ballots having been marked and shown to persons who were not lawfully assisting the voters or any of them in the preparation of their ballots before said ballots had been deposited, and that the same were shown in such a manner as to disclose to the persons to whom they were shown some or all of the names of the candidates voted for upon said ballots; that said ballots were so deposited unmarked and unchallenged by the board of inspectors; that said votes went to make up the large majority of 553 votes in favor of respondent; that, by reason thereof, the election in said precinct was rendered wholly invalid, illegal, and of no effect upon the election for the office of county clerk; and that, by reason thereof, the said relator was elected by a majority of 565 votes. The objection to this replication was that it tendered an immaterial issue, and that it was not averred that the election in said district was so invalid as to effect the disfranchisement of all the electors therein. It was said by this court in the opinion overruling the demurrer: "It is alleged that 750 ballots were exhibited contrary to law; that the election in said precinct was therefore void, and that, with those votes thrown out, the relator was elected. The allegation is not confined to the canvass and recount, but to the illegality of the vote. If the respondent's position be true, that the replication alleges simply that the canvass and the recount of the votes cast at this precinct were invalid and illegal, the fair import of the language is that it attacks the legality of the entire vote of the entire precinct." Issue was joined upon this replication by the respondent, and it became one of the questions of fact to be found by the jury. By the answers to questions 13 and 14, the jury found that Henry M. Reynolds received in all the townships and voting districts of said county, not including the fourth district of the Fifth ward of Detroit, 25,910 votes, and that William May received in such townships and wards, not including the fourth district of the Fifth ward, 23,984. To question No. 46, the jury found that Mr. Reynolds received 1,926 majority over Mr. May. Many questions are raised over the findings under certain other of the replications, but, as the determination of the question arising under the sixth replication must settle the controversy in favor of Mr. Reynolds, the relator, we need not enter fully upon a discussion of the other questions. All of the votes in the fourth district of the Fifth ward of Detroit were discarded by the jury.

The testimony on the part of the relator showed that the inspectors of election in that district were Alois Diemel, Edward Fierz, John Manquin, Bernard Zentowski, Peter Brinker, and John Vandergyp; that no one was designated by the board to assist voters in the preparation of their ballots; that William F. Schneider and John Erhard were United States supervisors of election, and that Joseph Diemel and Peter Knauss were deputy United States marshals for that district; that the greater part of the voters were Poles, Germans, and Italians, and that from six to seven hundred of these voters were assisted in marking their ballots because they could not read English; that none of the voters thus assisted were sworn as to their ability to read English; that the only persons who actually marked the ballots for such voters were Alois Diemel, John Vandergyp, Joseph Diemel, and Peter Knauss; that during the election the marking of ballots for voters in this district as above described was seen and observed by the United States officers of election and the deputy United States marshals above named. On the part of the respondent, it is shown by the testimony, and admitted, that this large number of voters were assisted in marking their ballots, and, as claimed, because they could not read English; and that none of them, thus assisted, had been sworn as to his inability to read English. It is not denied that these deputy United States marshals saw how these ballots were marked, but it is claimed that this method was adopted because it was believed that, on account of the large registration and the great number of voters needing assistance, the proper vote of the district could not be cast if the work of assisting voters were to be done only by Diemel and Vandergyp in company with each other. It was also shown that Diemel and Vandergyp were designated by the board to assist voters in marking their ballots.

1. It is contended by counsel for respondent that the court was in error in its direction to the jury that "if any voter was not first sworn as to his inability to read English, and allowed his ballot to be marked for him, or allowed any one to see his ballot when it was marked, he thereby lost his right to vote at that election, and that it was unlawful for any inspector of election to mark the ballot of any elector who had not been sworn as to his ability to read English." Upon this point it is contended that the statute under which this portion of the charge was given is not mandatory, but directory merely, and that the provisions requiring assisted voters to be first sworn, as construed by the court below, is unconstitutional, because it puts unreasonable restrictions upon the right to vote. Section 32, Act No. 190, Pub. Acts 1891, provides: "When any elector shall make oath that he cannot read English, or that because of physical disability he cannot mark his ballot, or when such disability shall be made manifest to said inspectors, his ballot shall be marked for him in the presence of at least two of the inspectors by an inspector designated by the board for that purpose, who is not a candidate on said ticket." By section 26 it is provided "If any elector shall show his ballot, or any part thereof, to any person (other than one lawfully assisting him in the preparation thereof) after the same shall have been marked, so as to disclose any of the candidates voted for, such ballot shall not be received or deposited in the ballot box. In case such elector shall so expose his ballot, his name shall be entered on the poll list with a minute of such occurrence and such elector shall not be allowed to vote thereafter at such election." Section 45 of the act provides: "Any person who shall * * * disclose to any other person the name of any candidate voted for by any elector, the contents of whose ballot shall have been seen by such person * * * shall be deemed guilty of a felony, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or by imprisonment in the state...