Ellis v. May

• Citation: 97 Mich. 568,56 N.W. 1035
• Court: Michigan Supreme Court
• Decision Date: 24 November 1893
• Parties: ELLIS, Attorney General, ex rel. REYNOLDS, v. MAY.

56 N.W. 1035

97 Mich. 568

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

Supreme Court of Michigan

November 24, 1893

Quo warranto by Adolphus A. Ellis, as 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. Respondent demurs to relator's replications. Demurrers overruled.

A. A. Ellis, Atty. Gen., (Jasper C. Gates and John B. Corliss, of counsel,) for relator. Edwin F. Conely and Orla B. Taylor, for respondent.

GRANT J.

The information in this case is filed to test the title to the office of the clerk of Wayne county, and is in the usual form. The plea is also in the usual form, and alleges that at the election held on the 8th day of November, 1892, the respondent received the greatest number of votes, and was duly elected to the office.

Eight replications were filed. The first alleges that 54 of said votes are void and illegal, because each of said votes bore a distinguishing mark, so made thereon as to distinguish it from the other ballots cast at said election, and that by reason thereof said respondent did not receive the greatest number of votes.

The second alleges that 20 other ballots were void for a similar reason, and that by reason thereof said May did not receive the greatest number of votes.

The third alleges that by the original canvass and returns of the several boards of inspectors of election in the various townships and voting precincts of said county, made according to law, it appeared that relator received 26,821 votes, and respondent 26,799 votes; that afterwards the board of county canvassers of said county of Wayne met, and said respondent filed with the clerk thereof a duly-verified petition alleging certain errors and mistakes in the canvass and returns of the boards of inspectors and in many of the townships and voting precincts; that said board of canvassers caused all the ballot boxes used in said election to be brought before it, to be opened, and a recount of the votes cast for said office to be made; that in the township of Ecorse 283 votes were cast for relator, and 423 for respondent; in the First ward of the city of Wyandotte, 199 votes were cast for relator, and 121 for respondent; in the Third ward of said city of Wyandotte, 218 votes were cast for relator, and 127 for respondent. It sets forth the canvass and return of the votes by the boards of inspectors of elections of said township of Ecorse, and the First and Third wards of said city of Wyandotte; alleges that after the votes had been so canvassed and returned, and before the ballot boxes used in said township and wards had been brought before the board of county canvassers on the 10th of November, 1892, the votes so cast at said election in said township and wards were so changed, erased, altered, and mutilated, in the interest of respondent, as to destroy 106 votes, which were in truth and in fact cast in favor of relator, and to insert in said ballot boxes, instead thereof 106 false and fraudulent votes in favor of the respondent all in such a manner that no valid, legal, or effective recount of the votes so cast in favor of said relator and of said respondent for said office could be had or made under the direction of said board of county canvassers; that by the recount made by said board of county canvassers, aside from the votes cast in said township of Ecorse and said wards of the city of Wyandotte, relator received 26,760 votes, and the respondent 26,748.

The fourth alleges that, aside from the fourth precinct of the Fifth ward of the city of Detroit, relator received 26,462 votes, and respondent 25,897; that in said fourth precinct of the Fifth ward the returns showed 858 votes in favor of respondent, and 298 votes in favor of relator; that there was no valid or legal election held in said fourth precinct, for the reason that the board of inspectors of elections received, canvassed, and returned, with the other votes then and there cast, 215 ballots cast by persons who were not then and there registered as electors of said precinct; that by reason thereof the election in said precinct was wholly vitiated.

No question is raised as to the fifth replication, and it need not, therefore, be noticed.

The sixth alleges that in said fourth precinct of the Fifth ward 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, because said ballots had been marked, and, before the same had been deposited, were shown to persons who were not lawfully assisting the voters, or any of them, in the preparation of their ballots, and 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 the respondent; that by reason thereof the election of such precinct was rendered wholly invalid, illegal, and of no force or effect upon the election for the office of county clerk; and that by reason thereof said relator was elected by a majority of 560 votes.

The seventh replication alleges that 215 ballots were cast in said fourth precinct of the Fifth ward at said election by persons unregistered, and who did not, by the taking of any oath or otherwise on said election day, qualify themselves as electors of said precinct; that said votes were therefore illegal and void, and were illegally canvassed and returned by said board to the board of county canvassers, and that for that reason the election in said precinct was rendered invalid and illegal, and should have neither weight nor bearing upon the election to said office of the county clerk;...