Groesbeck v. Bd. of State Canvassers, 314.

• Decision Date: 27 September 1930
• Docket Number: No. 314.,314.
• Citation: 232 N.W. 387,251 Mich. 286
• Parties: GROESBECK v. BOARD OF STATE CANVASSERS (BRUCKER, Intervenor).
• Court: Michigan Supreme Court

251 Mich. 286

232 N.W. 387

GROESBECK

v.BOARD OF STATE CANVASSERS (BRUCKER, Intervenor).

No. 314.

Supreme Court of Michigan.

Sept. 27, 1930.

Petition for mandamus by Alexander J. Groesbeck against the Board of State Canvassers, in which Wilber M. Brucker intervened.

Writ granted in accordance with opinion.

Argued before the Entire Bench. O. L. Smith, of Detroit, Joseph Walsh, of Port Huron, Edward N. Barnard, of Detroit, and E. C. Smith, of Lansing, for plaintiff.

John P. Kirk, of Ypsilanti, for defendant.

Kenneth M. Stevens and Waldo Granse, both of Detroit, John F. O'Keefe, of Saginaw, R. Glen Dunn, of Muskegon, Charles H. Goggin, of Alma, Frederick B. Brown, Clarence E. Page, and Claude H. Stevens, all of Detroit, George E. Nichols, of Ionia, and E. B. Howarth, of Royal Oak, for intervener.

FEAD, J.

On petition of plaintiff, Alexander J. Groesbeck, defendant, board of state canvassers, is conducting a recount of the votes cast for candidates for the nomination for Governor on the Republican ticket, at the primary election held September 9th, at which plaintiff, intervener, Wilber M. Brucker, and Edward J. Jeffries were the candidates. Claiming that the recount is being conducted illegally in many particulars, plaintiff seeks a writ of mandamus to compel lawful procedure and count. Defendant and intervener have answered, denying illegality both in law and in fact. The answers have been traversed.

The petition and answers present no controlling questions calling for framing issues of fact. Objection is made to the petition as being prematurely filed and for other reasons. This court has jurisdiction, Bradley v. Board of State Canvassers, 154 Mich. 274, 117 N. W. 649, and, because the time for certification of the nominee for the election ballot is short, the right to a correct recount clear, and we think the defendant board has misconceived its duty in some respects, we are moved to disregard technicalities of practice and proceed to determination of the legal questions. A preliminary statement of some principles established in this state will obviate the necessity for repetition in discussing specific subjects.

The primary election was held under Act No. 351, Pub. Acts 1925, as amended, a condification known as the Michigan Election Law. The act is framed with the imperative ‘shall.’ The provisions are all mandatory in the sense that the election officials are bound to obey them. Their observance may be enforced by mandamus, Baker v. Board of Election Commissioners, 110 Mich. 635, 68 N. W. 752, and the act provides criminal penalties for their violation. Some provisions are made mandatory in absolute effect by the use of specific imperative language. Others, while employing no special emphiatic words, are held mandatory because they are designed to preserve the purity of the election, the secrecy of the vote, or the official character and integrity of the ballots both during and after the election. Such mandatory provisions must be given full effect, even though it results in disfranchisement of voters or prevention of recount. Attorney General v. May, 99 Mich. 538, 58 N. W. 483,25 L. R. A. 325;Attorney General v. Glaser, 102 Mich. 397,61 N. W. 648,64 N. W. 828;Keith v. Wendt, 144 Mich. 49, 107 N. W. 443;People v. Rinehart, 161 Mich. 585, 126 N. W. 704;Ritze v. Board of Canvassers, 172 Mich. 423, 137 N. W. 964;Smith v. Board of Canvassers, 220 Mich. 319, 189 N. W. 856.

Other provisions, however, while expressed mandatorily, are held directory in some circumstances, in that their nonobservance is not fatal to a count of ballots, motably when they involve the performance of duty by an election official, the neglect of which has no effect upon the election or will result in disfranchising voters without their fault. An elector has the right to rely upon a legally authenticated ballot, in statutory form handed to him at the polls by an election official, as being an official ballot upon which he can cast a lawful vote for a candidate of his choice. He is not bound to trace the history of the ballot to ascertain that all the provisions of law have been fulfilled in its preparation. This court has said:

‘It may be stated, as a general rule, that the provisions of law relating to the manner of conducting elections will not be held so far mandatory as that a departure from the rule will result in the disfranchisement of a district or a class of voters, or the defeat of a candidate himself free from fraud, except in cases where the legislative intent that such departure * * * shall have such effect is clearly and unequivocally expressed. This is a rule which has been applied in this state.’ Lindstrom v. Board of Canvassers, 94 Mich. 467, 54 N. W. 280, 281,19 L. R. A. 171.

‘If the fraud of the voters, the ballots should not be counted; if that of the inspector, they should.’ People v. Bates, 11 Mich. 367, 83 Am. Dec. 745.

‘The voter finding the ticket upon the ballot cannot be required to determine its regularity at his peril. This might involve a necessary knowledge of facts difficult to ascertain. He may safely rely upon the action of the officers of the law, whom he has a right to suppose have done their duty.’ Bragdon v. Navarre, 102 Mich. 259, 60 N. W. 277.

‘It would be a dangerous rule to establish that the board of election inspectors could thwart the will of the voters by a neglect to perform the duty imposed upon them by statute, and it should not be so held except where the plain provisions of the statute require it.’ Attorney General v. Glaser, 102 Mich. 397,61 N. W. 648,64 N. W. 828.

See, also, People v. Board of Supervisors, 240 Mich. 115, 215 N. W. 33;Abbott v. Montcalm County Canvassers, 172 Mich. 416, 137 N. W. 961;Horning v. Board of Canvassers, 119 Mich. 51, 77 N. W. 446; 9 R. C. L. pp. 1061-1091-1092; 20 C. J. p. 152.

It must be assumed that the Michigan Election Law was codified with these principles in mind.

Defendant refused to recount the ballots in boxes where the number of ballots did not correspond with the number of voters as shown by the poll lists, but accepted the original returns of the canvasses by the election inspectors. It is charged, and not denied, that the original returns show count of all the ballots in such boxes, including the excess number over the poll lists. The statute makes the poll list the official and determinative evidence of the number of votes cast. Michigan Election Law, part 3, chap. 5, § 5; part 4, chap. 8, §§ 17, 28, chapter 12, §§ 1, 2. It was the first duty of the inspectors of election, after the polls were closed and as part of the count of votes, to compare the poll lists, count the ballots, and, before beginning the actual canvass, to withdraw from the box the ballots in excess of the number of voters according to the poll lists, if any. Chapter 12, §§ 1, 2, supra. It is true the statute gives the recount board no authority, in express words, to make such withdrawal. Its powers are not detailed. They are summed up in the inclusive duty to ‘make a recount’ and return. Part 4, chap. 19, §§ 5, 12. The function of the recount board is to correct fraud or mistake under statutory conditions. To do this, it makes a new count, such a count as the board of election inspectors should have made, ‘doing again what the inspectors of election have done.’ Bradley v. Board of State Canvassers, 154 Mich. 274, 117 N. W. 649, 653. This carries authority to do what the inspectors should have done in the count. Otherwise a recount would be futile, a plain fraud or mistake would be perpetuated, and an apportunity for future fraud pointed out. Defendant should make the proper withdrawal of excess ballots and proceed with the recount of the precincts so involved. It seems hardly necessary to state that this ruling would not apply to an instance where the excess was caused by the inspectors putting blank ballots into the boxes, or where the original canvass corresponds with the poll lists.

Upon completion of the canvass it is the duty of the board of election inspectors to tie the counted ballots in packages or rolls, indorse upon each package ‘a statement showing the number and kind of ballots included in such package,’ and deposit them in the ballot box. Part 4, chap. 12, § 5. Defendant refused to recount ballots not indorsed with the required statement. In this it was right. The statement is part of the statutory evidence of the integrity of the ballots, and its absence is fatal to a recount. Smith v. Board of Canvassers, 220 Mich. 318, 189 N. W. 856.

The election inspectors are also required to deposit in the ballot boxes a copy of the talley sheet. Defendant refused to recount the ballots in boxes containing no tally sheet. The tally sheet contains merely the computation of an inspector or clerk. The statute gives it no force of any sort, evidentiary or advisory. It has no effect on protecting or preserving the ballots. It may have some use in a quo warranto proceeding, but has none in a recount.

By Act No. 306, Pub. Acts 1929, section 16, chapter 18, part 4 was added to the Election Law. It provides that a recount shall be had of ballots in packages and rolls tied and sealed in the legal manner, if the number corresponds with the poll list, even though the seal on the box has been broken. The presence of a tally sheet is not made a condition of such recanvass. The added statute modified former requirements of recount as set out in earlier acts and the decisions thereunder. It cannot be supposed that the Legislature understood or intended that a tally sheet in the box is necessary to recount where the box is properly sealed in full compliance with law, and that it is not necessary where a safeguard of the integrity of ballots, the seal on the box, is wanting. The absence of a tally sheet does not justify refusal to recount.

Counsel agree that, to be counted, ballots must contain initials of the election inspectors. In tearing off the perforated corners...