Williams v. Cleary

• Citation: 60 N.W.2d 910,338 Mich. 202
• Decision Date: 27 November 1953
• Docket Number: No. 121,121
• Parties: WILLIAMS et al. v. CLEARY, Secretary of State. * Motion
• Court: Supreme Court of Michigan

Page 910

60 N.W.2d 910

338 Mich. 202

WILLIAMS et al. v. CLEARY, Secretary of State. ^*

Motion No. 121.

Supreme Court of Michigan.

Nov. 27, 1953.

Alfred B. Fitt, Detroit, for plaintiffs.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Detroit, Russell A. Searl, Asst. Atty. Gen., for defendant.

Before the Entire Bench.

CARR, Justice.

The facts in this proceeding are not in dispute. At the general election held November 4, 1952, Governor G. Mennen Williams was a candidate for re-election. The returns to the board of State canvassers, made pursuant to statute by local election officials, indicated that he had received the highest number of votes cast for the office of governor. Thereupon the candidate receiving the next highest number of votes filed a petition, in accordance with pertinent provisions of chapter XIX of the Michigan election law ¹, demanding a recount of various precincts throughout the State. Governor Williams, hereinafter referred to as the plaintiff, then filed a counter petition asking in terms for recounts in all precincts, other than those in which voting machines were used, not covered by the original recount petition, and deposited in connection therewith the sum of $12,500, estimated on the statutory basis of $5 for each precinct. It was subsequently determined that plaintiff's counter petition covered 1908 precincts and that, in consequence, the amount deposited exceeded the required sum by $2,960. Said sum was returned to plaintiff and is not involved in this controversy.

Before the completion of the recounts demanded, the candidate filing the original petition requested leave to withdraw it. Thereupon plaintiff filed a like request as to his counter petition, reserving at the time the right to demand a return of the amount of his deposit. The requests were granted and the recount proceedings terminated. A certificate of election was then issued to plaintiff. A demand for the return of the deposit made by plaintiff was denied as to the sum of $9,540 covering the 1908 precincts in which he had sought a recount. The present mandamus proceeding followed, plaintiff claiming that he is entitled to the full amount of his deposit under statutory provisions hereinafter quoted. On behalf of defendant the right to such return is denied on the theory that the legislature in the enactment of the election law and the amendments thereto failed to make provision therefor.

The primary question at issue is, as above indicated, one of statutory construction. Chapter XIX, § 1, of the election law, being C.L.1948, § 189.1 as amended by P.A.1951, 1951, No. 213, Stat.Ann.1951 Cum.Supp. § 6.540, reads as follows:

'Sec. 1. Any candidate voted for at any election for an office, the votes for which are canvassed by the board of state canvassers, who considers himself aggrieved on account of any fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by said inspectors, or of any county canvassing board, may, not later than 2 days after the final certification and determination of the state board of canvassers, present to and file with the secretary of state a written or printed petition which shall be sworn to by such candidate, setting forth as near as may be the nature and character of the fraud or mistakes complained of, and the townships, cities or counties, or the precincts thereof, in which they exist, which petition shall pray for a correction thereof by a recount of the votes cast therein, and any counter petition shall be filed in like manner within 24 hours thereafter: Provided, That any candidate at any general or special election for a seat in the legislature, intending to file a contest in accordance with the rules of either house of the legislature, shall make the deposit of money required by this act with the clerk of the house or the secretary of the senate, as the case may be, and shall file 2 additional copies of any petition required by this act with the clerk of the house or the secretary of the senate, as the case may be, and the ballots in any precinct petitioned for recount in any legislative contest shall not be recounted for that office by any board of canvassers but shall be preserved until the contest is disposed of under the rules of the legislative body concerned.'

Section 3 of the chapter, C.L.1948, § 189.3, Stat.Ann. § 6.542, governs the matter of deposits required from candidates demanding recounts, and the refunding thereof in certain cases. As last amended by P.A.1931, No. 200, it reads:

'Sec. 3. The candidate or elector presenting such petition to the secretary of state shall at the same time deposit with such officer the sum of five dollars for each precinct in which a recount of the votes is demanded. If by reason of such recount, the petitioner succeeds in establishing fraud or mistake as set forth in his petition and receives a certificate of election or establishes sufficient fraud or mistake to change the result upon any proposition, the votes for and against which were recounted, the money deposited by him shall be refunded. In event no refund is made as herein required, then the secretary of state shall pay to the treasurer of each county its proportionate share of such deposit based upon the number of precincts in such county in which the votes were recounted.'

It may be noted that the recount provisions of the election law as originally enacted in 1925 contained, in section 1 of chapter XIX, no provision for the filing of a counter petition. The clause now appearing therein with reference to such action was inserted by P.A.1937, No. 308. Counsel for defendant suggest that since the provisions of section 3 as to refunds were not then, or later, amended, it may be inferred that the legislature did not have in contemplation the making of a refund to a candidate filing a counter petition, under circumstances of the character involved in the case at bar. We do not understand, however, that there is any claim on the part of defendant that section 3 should be construed as not requiring the making of the prescribed...