People ex rel. Evans v. Sutherland

• Decision Date: 17 June 1879
• Citation: 41 Mich. 177,1 N.W. 927
• Court: Michigan Supreme Court
• Parties: THE PEOPLE ex rel. EPHRAIM B. EVANS. v. CLARK H. SUTHERLAND.

1 N.W. 927

41 Mich. 177

THE PEOPLE ex rel. EPHRAIM B. EVANS. v. CLARK H. SUTHERLAND.

Supreme Court of Michigan

June 17, 1879

The duties imposed by statute upon the sheriff of a county, where an equal number of votes are cast for opposing candidates for office, and the matter is to be determined by lot, may be performed by a general deputy, and need not be by the sheriff in person. In an election for a county officer the votes were equal, and the right to the office was determined by lot under the statute, proceedings being before a deputy instead of the sheriff in person. The information was filed to test the right to the office. The plea of respondent set up that an equal number of votes were cast for each candidate, and that the proceedings by lot were before a deputy instead of the sheriff. On overruling a demurrer to the plea, held, that it would be irregular to allow relator to thereafter set up invalidity of votes cast for respondent. Costs allowed as for a hearing at previous term.

GRAVES, J.

This is an information to try the right to the place of clerk and register of deeds of Clare County, the offices there being united. The plea by respondent sets up that at the last general election the relator and himself were opposing candidates; that they received an equal number of votes; that the board of canvassers took the proper steps for a determination by lot before the sheriff; that relator and respondent attended at the time and place; that the sheriff was unable, by reason of sickness, to be present in person and his under-sheriff was absent from the county, and his general deputy appeared, by his direction, to conduct the proceeding in his stead; that thereupon the drawing took place before said deputy, in the mode prescribed, and the respondent won and received the proper certificate. The whole details, as set forth in the plea, need not be stated. The relator demurred and alleged for cause that no one except the sheriff in person was authorized to conduct the proceeding, and that the intervention of the deputy was unwarranted and the drawing void.

The question is important; but we are compelled to decide it without any aid from adjudged cases, and without recourse to technical considerations.

The relator claims that the act required of the sheriff is not one naturally appropriate to the proper sphere of duties pertaining to the office of sheriff, and not within the category of duties subject to be performed through a deputy that for this service the law presumes in favor of the character and personal fitness of the sheriff, and does not contemplate any delegation of the function. These views are not without weight, but they do not appear sufficient to decide the question. We do not place any stress upon the circumstance that both parties attended and went through the drawing before the deputy, without any objection. Whatever influence, if any, that might have in another case we do not regard it here. There is no complaint of anything unfair in the drawing.

In case of fraudulent conduct the proceeding would be invalidated by whomsoever conducted.

There is nothing in the nature of the required service to disable the sheriff from acting through his general deputy. The acts to be done are minutely specified, and nothing is left to discretion. If the law regard...