Rich v. State Canvassers

• Decision Date: 22 May 1894
• Citation: 100 Mich. 453,59 N.W. 181
• Court: Michigan Supreme Court
• Parties: RICH, GOVERNOR, v. BOARD OF STATE CANVASSERS.

59 N.W. 181

100 Mich. 453

RICH, GOVERNOR, v. BOARD OF STATE CANVASSERS.

Supreme Court of Michigan

May 22, 1894

Petition by John T. Rich, governor, relator, against the board of state canvassers, for mandamus, alleging that the board of state canvassers failed in its duty in canvassing the votes cast at the election of 1891, and asking that said board be reconvened, and required to canvass said votes. Allowed.

Geer & Williams, for relator.

Otto Kirchner, for the Attorney General.

MONTGOMERY J.

At the election held in this state in the spring of 1891, there was submitted to the electors a proposed amendment to article 9 section 1, of the constitution, relative to the salaries of state officers, the effect of the amendment, if adopted being to increase the salary of the attorney general to $2,500 per annum. Upon the canvass as made by the board of state canvassers, the amendment appeared to have received a majority of 1,287 votes in the state, and the result was so determined and declared by the board. On the 29th of January of the present year, a petition was filed by the governor the attorney general being the interested party, asking that the board of state canvassers be reconvened and required to recanvass the votes cast, the petition alleging that the board of 1891 failed in its duty, in that no canvass of the vote cast in the county of Gratiot was made, and that this county gave 1,316 negative votes on the proposition, and but 626 in its favor. The petition also alleges that the returns from the county of Gogebic were fraudulently changed by adding 1,000 to the affirmative vote, so that, as a matter of fact, the amendment was defeated in the state by more than 400 votes. There can be no question that the returns from Gogebic county were falsified. But it is insisted by the attorney general that, the board of state canvassers having actually determined the result, there is no power to review their proceedings, either directly or collaterally, and that the determination must stand; and, secondly, that the returns from the county of Gratiot were irregular, and therefore the board was justified in throwing out the returns wholly, and was not bound to send a messenger for an amended return; and, thirdly, that, if it be held that the board neglected a duty in this last respect, the record of the canvass in Gratiot county shows that the statute relative to the canvass of votes was not complied with, and that a return taken from such records would not have been in a form which could have been recognized by the board of state canvassers, and hence that the forgery of the Gogebic returns did not in fact change the result, and that the recanvass of the returns would not result in reversing the determination reached by the board in its original canvass, as announced.

1. It is contended that the authority of the board of state canvassers in determining the question of whether a constitutional amendment has been adopted is similar to that exercised by a board of supervisors in canvassing the votes, and determining whether a proposition to remove a county seat has been adopted; and that it has been held under various conditions that the court will not review the decision of the board of supervisors in determining such result. Attorney General v. Board of Sup'rs, 33 Mich. 289; People v. Board of Sup'rs, 34 Mich. 211; People v. Treasurer, 41 Mich. 6, 2 N.W. 181; Hipp v. Board, 62 Mich. 456, 29 N.W. 77; Attorney General v. Board of County Canvassers, 64 Mich. 612, 31 N.W. 539; and Double v. McQueen, 96 Mich. 45, 55 N.W. 564. The authority conferred upon the board of supervisors is defined in section 491, 1. How. St., which, after providing for the submission of the question, the manner of voting, and canvass of the votes, and the transmission of the statement of the result to the county clerk, further provides as follows: "The board of supervisors, for the purpose of ascertaining the result of such vote in such county, shall examine such statements and certificates and canvass the votes therein certified, and shall determine and declare the result of the vote in the county, and such result shall be entered upon their records; and in case the result shall be in favor of the proposed removal, they shall provide for such removal, together with all the records and papers of such county, within one year after such result shall be ascertained and determined, as aforesaid, by them, and shall remove the same as soon as suitable buildings have been provided for the reception thereof, and they shall enter upon their records the time when such removal shall be deemed to have taken place, and from and after that time, the place so designated shall be and continue the county seat of said county for all purposes whatsoever." In the first case cited, this statute was construed, and it was said: "It is impossible, as it seems to us, to give due force to this language without holding that the decision of the supervisors was meant to be, and must be, conclusive. There is no intimation that any right to contest it was to be left open afterwards; but their action is to settle the question of the removal 'for all purposes whatsoever.' It could not settle that question if a judicial review were still the right of dissatisfied parties. The question was one of a nature peculiarly proper to be submitted finally to their determination, and this consideration is not without its force when the question is one of construction. But there are other considerations bearing in the same direction, which may well be illustrated by the present case. The diligence of the relator enabled him to present his complaint before the removal to Baldwin had been perfected, but that is a circumstance that may not exist in the next case that arises. The circuit judge is required to hold his courts in the court-house provided for him, and he cannot lawfully hold them elsewhere, except when the county has no courthouse at all. The officers of the court-the sheriff and clerk-are required to keep their offices and records at the county seat. If the circuit court in chancery could take cognizance of this case, it can of any similar case; and perhaps in the next case, sitting at the new county seat, it will be called upon by information to make solemn decision that it has no authority to decide, and to take jurisdiction for the purpose of holding that, sitting where it does, it has no jurisdiction at all. This would be the anomalous and absurd position in which a judge might be placed if he should assume to take cognizance of such a question." It will be observed that not only is the board to make the determination, but the same section provides for action by the board based upon this determination. The reasons for holding their decision final, which do not obtain in favor of the construction of the statute governing the board of canvassers, which is contended for by counsel for the attorney general, are strongly stated in the language of Mr. Justice Cooley, above cited.

Turning to the provision for canvassing the votes on a constitutional amendment, we find that it reads as follows (1 How. St. �� 213, 214): "The secretary shall lay before the board the statement received by him of the votes given in the several counties for or against such amendment to the constitution. *** The board shall then proceed to examine such statements, and to ascertain and determine the result, and shall make and certify under their hands, a statement of the whole number of votes given for, and the whole number of votes given against, such amendment of the constitution, *** and they shall thereupon determine whether such amendment to the constitution *** has been approved and ratified by a majority of the electors voting thereon, and shall make and subscribe on such statement a certificate of such determination, and deliver the same to the secretary of state." No action by the board, as a board, is to be predicated upon this finding. The language is almost identical with that which provides for the canvass of votes for state officers,-sections 208 and 209; the latter section providing that "the canvassers shall certify each statement made by them to be correct, and subscribe their names thereto; and they shall thereupon determine what persons have been, by the greatest number of votes, duly elected to each respective office, and make and subscribe on each statement a certificate of such determination, and deliver the same to the secretary of state." And section 137 makes provision for the canvass of votes cast for member of congress, and provides that "the returns and canvass of votes given thereon, shall be proceeded and determined in the same manner herein provided for the same officers to be elected at general biennial elections." So, it will be seen that the duty is imposed upon the board of determining what person has been elected representative to congress, by language just as imperative as that contained in section 214, relative to the determination of the question of whether an amendment to the constitution has been adopted. Yet we held in Belknap v. Board, 95 Mich. 155, 54 N.W. 696, that a recanvass of the vote for member of congress might be directed by mandamus after the expiration of the term of office of the old board, and after such board had made the canvass, entered their determination, and issued a certificate.

It is contended that the determination of the question whether an amendment to the constitution is carried involves the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any purported amendment by the executive or any executive department is final, and that the action cannot be questioned by the judiciary. But, with reference...