People ex rel. Keeler v. Robertson

• Decision Date: 22 July 1873
• Citation: 27 Mich. 116
• Court: Michigan Supreme Court
• Parties: The People on the Relation of Alonzo M. Keeler v. George W. Robertson

27 Mich. 116

The People on the Relation of Alonzo M. Keeler v. George W. Robertson

Supreme Court of Michigan

July 22, 1873

Heard on Demurrer April 22, 1873; April 15, 1873

Heard on Verdict July 18, 1873.

Information in the nature of a quo warranto.

Demurrer overruled.

Byron D. Ball, Attorney General, for the People.

Edgar Weeks, E. W. Meddaugh and A. B. Maynard, for the relator.

R. P & J. B. Eldredge, Hubbard & Crocker and A. C. Baldwin, for the respondent.

Graves, J. Christiancy, Ch. J., and Cooley, J., Campbell, J. concurred.

OPINION

Graves, J.

This is an information brought to try the right to the office of register of deeds for Macomb county.

By this plea the respondent set up that at the late general election, himself and the relator were opposing candidates for the office; that four thousand eight hundred and ninety-seven votes were cast for it, of which nearly the whole number were equally divided between them by the actual count and determination of the board of county canvassers, and that thereupon lots were drawn by relator and respondent, in which proceeding the latter won and was furnished with a certificate of election. The plea assumed to detail the proceedings at length, but they need not be recited here. The relator filed a replication to the plea, and asked that certain issues said to be involved should be sent down to some proper county for trial. The suggested issues, looked to an inquiry into the legality of votes counted by the board of canvassers on the side of respondent. The latter demurred to the replication, and insisted that by the law of the State the canvass and proceeding by the board, with the decision by lot and the certificate awarded to him, were and are conclusive, and exclude all inquiry into the validity of the votes cast.

The question thus raised is important, and has received deliberate attention. The law which provides for drawing lots by competitors for office, declares "that whenever in elections of members of the State Legislature, or county officers, it shall appear, on the legal canvass of the votes, that two or more persons have received an equal number of votes, and that a failure to elect to any office is caused thereby, such persons shall draw lots for election to such office in the manner following," etc.--Comp. L. 1871, § 136.

The course to be pursued by drawing slips marked "elected" and "not elected," is then pointed out, and the act proceeds to declare "that any person drawing a slip in which is written the word elected' shall be deemed legally elected to the office in question; and the officer conducting such drawing shall forthwith give him a certificate of such election." The remaining portions are unimportant to the present inquiry.

The respondent was understood as arguing that the relator having participated in the drawing, and having lost, he ought to be precluded from going behind that process and the canvass. That the trial by lot being admissible only when the votes are found to be equally divided, his engaging in the drawing ought to estop him from asserting that the lawful votes were not so divided. He was further understood as insisting that the Legislature being authorized by the constitution to declare when an office shall be deemed vacant, and also the manner of filling the vacancy, the law for drawing lots is to be considered as a regulation on that subject, and as contemplating the office as vacant in case of an equal division of votes, and as giving a method for filling it.

The relator's position was understood to be, that the drawing was intended to go no further as respects the right to investigate the legality of the election than to place the successful candidate in the same situation he would occupy if holding a certificate of election issued upon a count terminating in his favor.

Whatever opinion may be entertained by different gentlemen as to the mere personal propriety of going back to contest the validity of an election, by one who has actually engaged in a drawing and lost, it appears to me that when an information is filed by the Attorney General to inquire for the public into the right, though on the relation of the losing party in the drawing, it is not admissible to say that the inquiry shall be closed in consequence of the relator's connection with that drawing. The office is created for the public advantage, and not to provide emolument for an individual, or to be owned and dealt with as mere private property. One, it is true, may be lawfully entitled to fill it, and have a valid right to its fruits. He may have a title which will exclude the legal claims of others; but his relation to the place as a candidate or aspirant is not such as to overbear the public right or such as to so far identify him with that right or clothe him with a capacity to represent it that his personal doings in a trial of chance under the statute will foreclose the State.

The primary and general right must remain paramount, and until some agency duly representing it and competent to bind it, has intervened in a way to preclude investigation, the course of judicial inquiry must continue open.

The second ground advanced by the respondent is next to be considered. The ground is, as before stated, that the canvass and drawing constitute in the given case an operation in view of the statute where a vacancy is ascertained and filled.

In the first place it must be noticed that the law necessarily applies to cases where no vacancy in fact exists, and where the winning candidate can find no place open to him at the time. The lot is to take place whenever an equal division of votes appears, and is to be made soon after the election and immediately after the canvass. It applies to general elections and elections for full terms. And these terms commence on the first day of January next after the election, and not earlier, and the old officer is therefore in when the drawing occurs, and his term will go on until the end of the year. The person, then, who draws the office for a regular term cannot be entitled to enter and hold until some time afterwards, as the office is then full. Again, the language of the act is not appropriate to any such design, and neither the nature of the thing, nor the course of legislation favors the idea that the act was meant to be a regulation under the power to declare vacancies and fill them. No other result is permissible without imputing very gross absurdity to legislation. Specific regulations of a different kind are made for filling vacancies. And a number of acts have been passed at different times expressly directed to the subject of vacancies and the way of filling them.

By section 582, Comp. L., it is expressly provided that in case of a vacancy in the office of register of deeds his deputy shall perform the duties of his office during the continuance of such vacancy; and the next section provides that when there is no deputy, or he is unable to perform the duties, the judge of the circuit court or county judge may appoint for the time being. These citations are made not to show that the regulations are valid or otherwise, but to show what the legislation has in fact been on the subject. We see here that the Legislature really acted upon the subject, and we notice that in doing so express reference is made to the existence of a vacancy. The meaning is not left to a doubtful or unnatural implication.

Chapter eleven of the Compiled Laws is also expressly applicable to vacancies and the mode of filling them. Indeed, the specific regulations on this subject are numerous, and they manifest that the act for drawing lots could not have been intended to cover any part of the same object.

But the argument supposes this statute to be in subservience to the before-mentioned constitutional provision, and it may be well to see, therefore, whether that provision was meant to allow the Legislature to fill a vacancy in the office of register of deeds in this way. It is in these terms: "The Legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this constitution: Const., Art. III., § 37.

We observe that the power given by this particular section is subject to a qualification plainly stated in the section itself, and that such qualification excludes the power in cases where the constitution makes provision for filling vacancies. If, then, we find a provision elsewhere in the constitution for filling a vacancy in the office of register of deeds, it cannot be said that the power to regulate that subject resides in this clause. And there is such other provision.

Section 3 of Article X. declares that "In each organized county there shall be * * a register of deeds, * * chosen by the electors thereof once in two years, and as often as vacancies shall happen," etc.

It is, therefore, obvious that the law for drawing lots cannot safely be referred to any such theory as that insisted on by the respondent. The clause in the constitution on which that theory is made to rest, will not bear the construction which the theory requires.

Is the law rightly subject to any other view which will make it operate so as to shut out a judicial investigation of the legality of the proceedings prior to the canvass and drawing? If it is, it must be because the terms used, when fairly considered, manifest an intent that the result reached by the board of canvassers, when followed by a formal drawing, shall be conclusive upon the candidates, and also upon the public. Is such an intent manifest? In looking at the question we are still to remember that the end aimed at by the institution of these offices is the public...