McLeod v. Kelly

• Decision Date: 30 December 1942
• Docket Number: Motion No. 106.
• Parties: McLEOD v. KELLY et al.
• Court: Michigan Supreme Court

304 Mich. 120

7 N.W.2d 240

McLEOD

v.KELLY et al. ^*

Motion No. 106.

Supreme Court of Michigan.

Dec. 30, 1942.

Action by Clarence J. McLeod against Harry F. Kelly and others, State Board of Canvassers for the State of Michigan, and George D. O'Brien, for a writ of mandamus commanding defendant board to remove the votes of eighteen precincts of the thirteenth congressional district in Wayne County cast at the general election November 3, 1942, and to return the plaintiff as elected congressman for the thirteenth congressional district, or to declare the election void.

Writ denied.

Before the Entire Bench.

David H. Crowley, Arthur E. Fixel, and George E. Brand, all of Detroit, for plaintiff.

Herbert J. Rushton, Atty. Gen., and Edmund E. Shepherd, Sol. Gen., for defendants.

Stanley E. Beattie, of Detroit, for O'Brien.

BOYLES, Justice.

Plaintiff, Clarence J. McLeod, and one George D. O'Brien were candidates for representative in Congress from the 13th congressional district (in Wayne county), at the general election held in said district November 3, 1942. The Wayne county board of county canvassers after canvassing the returns from the several election precincts in said district certified to the board of State canvassers that O'Brien had received a plurality of 1,509 votes. Before the State board had canvassed the returns from this district McLeod filed a petition in this court alleging irregularities in 18 precincts of said district, and asking that a writ of mandamus be issued commanding the board of State canvassers to ‘remove the votes of said eighteen precincts from the return on said congressional election,’ and ‘to return plaintiff as the elected congressman for the 13th congressional district of Michigan.’ By amendment to his petition, plaintiff asks that the board of State canvassers be commanded to declare the election held November 3 in said district for representative in Congress null and void, or in the alternative to remove the votes for representative in Congress of ‘said sixteen (16) precincts' from the return. On filing the petition, an order to show cause was issued and the board of State canvassers directed to refrain from certifying the election until further order.

In support of his petition, plaintiff has filed a number of affidavits and unsworn statements to the effect that at certain times during the election the ballots furnished in 16 precincts in said district did not contain the name of any candidate for representative in Congress, claimed by plaintiff to affect the right to vote of at least 2,500 electors, and that for this reason the board of State canvassers should declare the election void, or in any event should exclude these precincts entirely, in certifying the result of the election. The defendants, answering the petition, deny the truth of these claims, and by affidavit of Oakley E. Distin, director of elections of the city of Detroit, show that the failure to furnish ballots with the names of the candidates for representative in Congress occurred in only four precincts, affecting the votes of only 113 electors, whereby such failure could not affect the result as certified to by the Wayne county board of canvassers.

Defendant O'Brien appears specially and challenges the jurisdiction of the court. We agree with his contention, that the final determination as to who is entitled to the office rests solely and entirely with the house of representatives in Congress. U.S.Constitution, art. 1, § 5. Neither the board of State canvassers nor this court can settle that issue. This court cannot decide any contest over a congressional election so as to bind the house of representatives to accept the result. The board of State canvassers is without the power to declare the election void. The duties and powers of the board of State canvassers are defined and circumscribed by statute. The board examines the statements of votes as sent to the secretary of State and certifies the whole number of votes given, the names of the persons to whom the votes are given, and the number of votes received by each, 1 Comp.Laws 1929, § 3186 (Stat.Ann. § 6.475); determines therefrom the result of the election, including representatives in Congress, 1 Comp.Laws 1929, § 3182 (Stat.Ann. § 6.471); determines what persons have been duly elected by the greatest number of votes and certifies the same to the secretary of State, 1 Comp.Laws 1929, § 3187 (Stat.Ann. § 6.476). The secretary of State delivers to each person thus declared clected a certificate of his election, 1 Comp.Laws 1929, § 3188 (Stat.Ann. § 6.477). Our statute law also contains provisions for a recount of votes by the board of State canvassers where fraud or mistake is claimed. However, without regard as to whether the State board can order a recount of votes cast for representative in Congress, plaintiff expressly disavows any claim that a recount is sought.

The board of State canvassers is a State agency with duties to perform in accordance with State statute law and conceivably there might be circumstances under which the State board might arbitrarily refuse to certify an election where it was the clear legal duty of the State board so to do. This court has jurisdiction to issue a writ of mandamus commanding performance of a clear legal duty by a State agency.

Writ of mandamus will issue to compel public officers and tribunals to perform their duties, when right is clear and specific. National Bank v. State Land Office Board, 300 Mich. 240, 1 N.W.2d 525.

Writ of mandamus lies only to enforce performance of clear legal right or ministerial duty. Home Insulation Co. v. State Board of Tax Administration, 298 Mich. 657, 299 N.W. 755.

The primary purpose of the writ of mandamus is to enforce duties created by law. Waterman-Waterbury Co. v. School District, 183 Mich. 168, 150 N.W. 104.

Mandamus will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts but is designed to enforce a plain, positive duty upon the relation of one who has a clear legal right to have it performed, and when there is no other adequate legal remedy. Toan v. McGinn, 271 Mich. 28, 260 N.W. 108.

The writ of mandamus is a discretionary writ and should not issue unless there is a clear legal duty on the part of the defendant, and a clear legal right in plaintiff to the discharge of that duty. Taylor v. Isabella Circuit Judge, 209 Mich. 97, 176 N.W. 550;Smith v. Wagner, 234 Mich. 428, 208 N.W. 460;Miller v. City of Detroit, 250 Mich. 633, 230 N.W. 936; Toan v. McGinn, supra.

Mandamus issues only to compel the recognition of a clear legal right or the performance of a legal duty; it does not issue so long as the right or the duty is disputed or doubtful. Post v. Sparta Township Board, 63 Mich. 323, 29 N.W. 721;Peck v. Kent County Supervisors, 47 Mich. 477, 11 N.W. 279.

Precedent for the conclusion that we have jurisdiction to compel a board of canvassers to canvass the votes for the office of representative in Congress, and report the result to the secretary of State, is found in Belknap v. Board of Canvassers, 94 Mich. 516, 54 N.W. 376, where the writ was granted. We note that in that case the board was directed to accept the original returns and certify accordingly, contrary to the result reached by a recount. Also, in that case an issue of fact was raised as to the legality of an election for representative in Congress. The opinion states: ‘The house of representatives is made the judge of the election and qualificationsof its own members, and it is now well settled that Act No. 208, Laws 1887, (3 How.St. § 234a), under which the recount was had, has no application to such a case. * * * A determination of the essential facts in this controversy must depend upon a re-examination by the proper tribunal of the original ballots.’

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