Lindquist v. Lindholm

• Court: Michigan Supreme Court
• Writing for the Court: SHARPE
• Citation: Lindquist v. Lindholm, 258 Mich. 152, 241 N.W. 922 (Mich. 1932)
• Decision Date: 04 April 1932
• Docket Number: Motion No. 421.
• Parties: LINDQUIST v. LINDHOLM, City Clerk, et al.

258 Mich. 152

241 N.W. 922

LINDQUIST

v.LINDHOLM, City Clerk, et al.

Motion No. 421.

Supreme Court of Michigan.

April 4, 1932.

Appeal from Circuit Court, Dickinson County; Frank A. Bell, Judge.

Action by Edward O. Lindquist against Harold C. Lindholm, Clerk of the City of Iron Mountain, and others, constituting the Board of Election Commissioners. From judgment denying petition for mandamus, plaintiff appeals.

Writ directed to issue.

Argued before CLARK, C. J., and McDONALD, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ.Daniel J. O'Hara, of Iron Mountain, for appellant.

Ray E. MacAllister, of Iron Mountain, amicus curiae.

Ray Derham, of Iron Mountain, for appellees Election Commissioners.

SHARPE, J.

Petitions for the recall of the plaintiff from the office of alderman of the fourth ward of the city of Iron Mountain were circulated, signed by the requisite number of voters, and filed with the defendant city clerk, as provided for in section 51 of the charter of said city. The reason assigned for the recall here relied upon was thus stated: ‘Second. That Alderman Edward O. Lindquist voted for himself for the office of mayor pro tem. of the city council at the meeting of the council, May 4th, 1931, and thereby violated Section 10 of the City Charter, which says: ‘No alderman shall vote on any question in which he shall have a direct personal interest.’'

A call for a special election pursuant thereto was issued, whereupon the plaintiff filed his petition herein for mandamus to ‘vacate and countermand’ such call and to restrain the defendant board of election commissioners from preparing the ballots therefor. An order to show cause was issued, and, after return thereto and hearing had, the trial court denied the same. An appeal to this court was allowed.

On consideration of the record and briefs presented, it seemed to us that the question to be decided was whether the plaintiff was legally elected mayor pro tem. by the city council. We thereupon requested counsel to file briefs expressive of their views on this question. With the aid of those furnished, we have given the matter further consideration, and are impressed the the right of plaintiff to hold this office should be tested by a quo warranto proceeding, and may not be made the basis of a petition for recall.

If the plaintiff had the right to vote for himself in the election of a mayor pro tem. by the council, he is entitled to perform the duties of that office; if not, then no mayor pro tem. was elected by the council, and the plaintiff has no legal right to fill the office.

This court has many times held that the only was to try titles to office finally and conclusively is by quo warranto. Curran v. Norris, 58 Mich. 512, 25 N. W. 500;Frey v. Michie, 68 Mich. 323, 36 N....