People ex rel. Angel v. Smith, 50

• Decision Date: 11 September 1950
• Docket Number: No. 50,50
• Citation: 43 N.W.2d 871,328 Mich. 323
• Parties: PEOPLE ex rel. ANGEL v. SMITH.
• Court: Michigan Supreme Court

Page 871

43 N.W.2d 871

328 Mich. 323

PEOPLE ex rel. ANGEL v. SMITH.

No. 50.

Supreme Court of Michigan.

Sept. 11, 1950.

Crandell & Crandell, Northville, for appellant.

Berry, Stevens, Barbier & Evely, Detroit, Donald D. MacFarlane, Detroit, of counsel, for appellee.

Before the Entire Bench.

CARR, Justice.

This is a quo warranto proceeding involving the right to hold the office of treasurer of Huron township, Wayne county. On the hearing in the circuit court the facts and the issue involved were stipulated by the parties. At a primary election held in said township on February 21, 1949, the relator, herein referred to as the plaintiff, and the defendant each sought the nomination as the candidate for said office on the Republican ticket. Plaintiff was successful and his name was printed accordingly on the election ballot. Ervin Maveal, Sr., was the candidate on the Democratic ticket.

At the spring election held on April 4, 1949, stickers or pasters bearing the name of defendant were placed by voters on the official ballots, over the name of the plaintiff on the Republican ticket and of Mr. Maveal on the Democratic ticket. Following the election and the counting of the ballots a recount was demanded and duly held. As a result it was found that plaintiff had received 416 votes, Mr. Maveal 288 votes, and defendant a total of 502 votes, of which 263 votes were under the caption of the Republican ticket and 239 correspondingly under the caption of the Democratic ticket. In consequence defendant was declared legally elected to the office, and plaintiff instituted the present proceeding.

The question at issue is whether the defendant is entitled to have counted for him the votes cast under the captions of both tickets. The trial judge determined the matter in defendant's favor. In the opinion filed by him in the cause it was said:

'I find nothing in the statute prohibitive of the manner of voting in the instant case. Nor is there any directive that a sticker candidate must be voted for under the label of one political party only. The blank spaces below the names of the candidates on the printed ballot invite and authorize the voter, if he so desires, to write in the name of the candidate he wishes to vote for, not appearing on the ballot, or to place a sticker containing the printed name of the candidate thereon. Nowhere in the statute itself or by any fair inference therefrom is there a qualification requirement that the township treasurer shall be a Republican or Democrat or any other party affiliate. The party designation at the head of the ticket is but incidental to the mechanics of the elective process. The person elected township treasurer is elected treasurer and not a party affiliate treasurer. Under our statutes governing elections it is legitimate for a person otherwise qualified to run as a sticker candidate; nor is there any requirement in the statute that he designate himself as any particular party affiliate.

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'The intent of the voter in the instant case is plain and unmistakable. There can, in reason and in fact, be little question but what each voter who cast his ballot for the sticker candidate intended to vote for and did vote for William J. Smith for the office of township treasurer.'

The right of an elector to vote for a candidate whose name does not appear on any ticket on the ballot is expressly recognized by statute. C.L.1948, § 178.19, Stat.Ann.1949 Cum.Supp. § 6.400, provides in subdivision (4): 'If the elector wishes to vote for a candidate not on any ticket, he may write or place the name of such candidate on his ticket, opposite the name of the office, and make a cross in the circle under the party name.' It will be noted that the above provision of the statute contemplates that the elector desiring to vote for a candidate whose name is not on the ballot shall place the name thereon 'on his ticket,' completing the act in the manner set forth. The statute may not be construed as precluding another elector, voting a different ticket, from likewise placing the name of the same candidate thereon.

Plaintiff argues that when defendant Smith sought the nomination for the office on the Republican ticket he thereby established a definite and fixed party affiliation, and that in consequence votes cast for him by placing the sticker bearing his name over the name of the regularly nominated candidate on the Democratic ticket could not be counted in his favor at the election. Attention is directed to C.L.1948, § 177.10, Stat.Ann.1949 Cum.Supp. § 6.354, requiring that any person nominated for the same office by more than one party shall give notice in the manner prescribed as to the party column in which he wishes his name to be printed on the election ballot, and to C.L.1948, § 177.9, Stat.Ann.1949 Cum.Supp. § 6.353, which requires that 'the name of no candidate shall be placed or printed in more than 1 column on the ballot for the same office.' We do not think that the sections cited are of controlling significance in the instant controversy. Defendant was not the candidate of either the Republican or Democratic party at the election on April 4, 1949. An elector voting the ticket of either party on the ballot had the right to place defendant's name thereon in the prescribed manner if he wished to do so. Obviously voters in each of the two parties mentioned availed themselves of that privilege.

The fact that the defendant was a candidate at the primary for the nomination to said office on the Republican ticket did not render him ineligible to fill the office if he received the greatest number of votes cast therefor at the election. The provision of C.L.1948, § 177.11, Stat.Ann.1949 Cum.Supp. § 6.355, that 'No person whose name was printed or placed on the primary ballots or voting...