Wilson v. Atwood

• Decision Date: 08 February 1935
• Citation: Wilson v. Atwood, 270 Mich. 317, 258 N.W. 773 (Mich. 1935)
• Parties: WILSON v. ATWOOD.
• Court: Michigan Supreme Court

270 Mich. 317

258 N.W. 773

WILSON

v.ATWOOD.

Supreme Court of Michigan.

Feb. 8, 1935.

Petition by Guy M. Wilson for leave to file an information in the nature of quo warranto to try the title of Orville E. Atwood to the office of Secretary of State.

Petition denied.

Argued before the Entire Bench, except POTTER, C. J.

Andrew J. Transue, Walter G. Krapohl and William A. Neithercut, all of Flint, for petitioner.

Schmalzriedt, Frye, Granse & Frye, of Detroit, for Orville E. Atwood.

Harry S. Toy, Atty. Gen., and Peter J. Monaghan, Jr., and Edmund E. Shephered, Asst. Attys. Gen., for the People.

PER CURIAM.

Claiming to have been duly elected secretary of state at the previous fall election, for the term commencing January 1, 1935, and that the office was being illegally withheld from him by Orville E. Atwood, the present incumbent, Guy M. Wilson, of Flint, Mich., has petitioned this court for an order permitting him to file an information in the nature of quo warranto. He alleges that after the state board of canvassers made a finding that Mr. Atwood had received the highest number of votes, he filed a petition directed to the Senate and House of Representatives, constituting the Legislature of the state of Michigan, and asked that they meet in joint convention in accordance with article 16, § 4, of the Constitution, to conduct a proper investigation and determine after a recount that plaintiff was entitled to the office; that thereupon the Governor called the Legislature to convene in extraordinary session in joint convention on December 10, 1934, for the purpose of considering the election contest; that the Legislature assembled on that date, and adjourned from time to time until December 27, 1934, when in joint convention it authorized and directed the chairman to appoint a committee to investigate plaintiff's charges and report the result to the joint convention; that the committee thus appointed conducted a recount of the ballots cast in 628 precincts of the state, and on December 31, 1934, reported to the joint convention that petitioner had netted a gain of 13,777 votes in the recount and had received the highest number of votes cast for the office; that on that date the Senate and House, in joint convention assembled, thereupon by viva voce vote declared plaintiff elected secretary of state, and authorized and ordered the state board of canvassers to certify his election; that a certification to that effect was signed by George A. Shroeder and Don W. Canfield, respectively the chairman and secretary of the joint convention; that petitioner thereupon duly qualified as secretary of state and filed his oath of office and bond with the proper authorities, as required by statute.

In accordance with the order of the court, copies of the petition were served upon Mr. Attwood and the Attorney General of the state. The latter filed answers in which it claimed that under section 15271, C. L. 1929, the Attorney General of the state has the exclusive right and power to file an information in this court to contest the right to a state office; that in the event of the refusal of the Attorney General to act on proper showing and request, petitioner's sole remedy would lie in mandamus proceedings in this court to compel such action; but that petitioner in the instant case had not requested the Attorney General to act. It is further contended that it was improper and illegal for the ‘outgoing’ Legislature on the eve of the expiration of its term to pass upon the election of a state officer whose term of office was not to begin until after that of the Legislature had ended; that the Governor had no authority to summon the Legislature to convene in joint convention; that such convention could only be authorized by concurrent resolution of the Senate and House, and the Senate had at no time adopted any resolution to meet in joint convention with the House; that when a minority group of members of the Senate did meet in joint convention with a minority group of the House on December 27, 1934, there was not then, nor at any time thereafter during the remaining days of the convention, a quorum present of either house or of both houses; that the action of this minority group was null and void and of absolutely no effect; that the joint convention was not properly officered; that the attempted recount was carried on in a most fiagrant and fraudulent manner; and that the result announced was brought about by unlawful tampering with the ballot boxes, fraudulent marking of ballots, and false tabulation of the returns, all for the purpose of showing plaintiff's election.

The court was furnished with the duly certified journals of the House of Representatives and Senate, each containing a full and complete record of the proceedings of the second extra session of 1934, including all meetings of each house prior to the ‘joint convention,’ and all proceedings of the ‘joint convention’ up to the time of adjournment on the night of December 31, 1934. Because of the very great importance of the question, and the necessity of a prompt decision, if possible, the court ordered oral arguments on questions of law and on the facts as shown by the journals, of which the court takes judicial notice.

Without passing upon plaintiff's right to petition for the writ without relation to the Attorney General, and treating the call of the Governor for a joint convention as if he had called each house for the purpose of adopting proper resolutions for a meeting in joint convention, we turn to the question of the legality of the proceedings of the ‘joint convention’ itself. The journals of the respective houses and of the so-called ‘joint convention’ show beyond cavil that at no time on either December 27 or December 31, 1934, the only two days on which the two bodies pretended to meet in joint convention, was there present a quorum of either house, or of both houses. The acts of the so-called ‘joint convention’ and of the committees appointed by it were therefore a nullity. The sole provision in the Constitution relating to joint conventions is found in article 16, § 4, which does not attempt to regulate the proceedings of such conventions. Article 5, section 15, of the Constitution, however, provides that each house, except as otherwise provided in the Constitution, shall choose its own officers and determine the rules of its proceedings. In accordance with this section joint convention rule No. 3 (Michigan Manual, 1933, p. 457) was adopted by the Senate and House, providing that the rules of the House, as far as the same may be applicable, should govern the proceedings in joint convention. Therefore, applying to the joint convention House Rule No. 1 (Mich. Man., supra, p. 444), which states that a majority of the members elected to the House shall constitute a quorum, it is evident that the presence of a majority of the combined membership of the Legislature, if not of each...