Gardner v. Board of School District No. 6

*136 Wiest, J. The bill herein was filed to restrain defendants from issuing bonds authorized at an election in a school district. Plaintiffs appealed from a decree adjudging the election valid and dismissing their bill. The point principally stressed is that unqualified persons voted, sufficient in number to offset the majority the proposition received. Plaintiffs called witnesses who voted, and, without claim of privilege, a number admitted disqualifications. Thereupon the circuit judge permitted such self-confessed illegal voters to be questioned as to how they voted, and it appeared from their testimony that most of them voted against the bonding, and that in truth and fact the proposition to bond carried by a small majority. Counsel for plaintiffs contends that the court was in error in permitting such inquiry. The court was right. Each witness so inquired of had confessed disqualification to vote. A legal voter is protected from disclosing how he voted, but one who admits that he voted illegally may, in a judicial proceeding involving the election, be required to disclose how he voted. If a voter, as a witness, voluntarily admits the illegality of his vote, he waives the privilege against self-incrimination, and he may be required, in behalf of exact justice, to disclose how he voted. The offense committed by such a person, if any, is in voting at all and not in how he voted, and the privilege against self-incrimination if waived as to his illegal act in voting cannot be made to extend to the subject of how he voted. The rule upon this is supported by ample authority. 9 R. C. L. pp. 1150, 1151; Powers v. Harten, 183 Iowa, 764 (167 N. W. 693); Gaiennie v. Druilhet, 143 La. 662 (79 South. 212); Montoya v. Ortiz, 24 N. M. 616 (175 Pac. 335). The same holding was made in People v. Cicotte, 16 Mich. 283 (97 Am. Dec. 141). But *137 counsel for plaintiffs contends that, under subsequent legislation relative to school districts and codified in Act No. 319, Pub. Acts 1927, that decision is no longer applicable. The statute so invoked relates to the procedure to be employed in case the right of one offering to vote is challenged. At the election we are considering no voter was challenged, and the statutory provisions relative to challenges, marking of ballots, preservation of evidence, and procedure thereunder do not apply. The statute secures secrecy of the ballot and affords review of action based upon challenges, but does not allow parties attacking the election to show that unqualified persons voted without challenge and then claim that the number thereof equaled the majority the proposition received, and, therefore, regardless of how such persons illegally voted, the bond issue did not carry. Cases involving challenged voters and acts of election inspectors with respect thereto have no application to the question at bar. The election was “called to be held in schoolhouse in said school district, etc.” In thé district are two school buildings; one used as a kindergarten, and situated across the road from the school building proper. Because of the two school buildings we are asked to hold that the place of election was indefinite. There is no evidence of confusion as to place and no possible reason for the voters not understanding where they were to vote. We are not impressed with the point urged. The question submitted was: “Shall School District No. 6, Township of Leoni, county of Jackson, state of Michigan, borrow the sum of eighty-five thousand dollars ($85,000.00) and issue its bonds therefor for the purpose of erecting the (and) furnishing addition to schoolhouse in said district * * *.” *138 The point is made that the particular schoolhouse was not designated. No claim is made that anyone thought that an addition to the kindergarten building was contemplated. Plans for an addition to the school building proper had been prepared, thoroughly discussed in the district, and were displayed at the voting place. An addition to the schoolhouse proper was clearly intended and so understood by every voter. After the election, over 100 legal voters requested the district board to call a special meeting to take action toward rescission of the bonding authorization. This request was not complied with. Plaintiffs claim right to have such special meeting called under the provisions of section 3, chap. 2, pt. 2, Act No. 319, Pub. Acts 1927. That section provides: “Special meetings may be called by the district board * * * and it shall be the duty of said board or any of them, to call such meetings on the written request of not less than five legal voters of the district. * * * but no special meeting shall be called unless the business to be transacted may lawfully come before such meeting, and no business shall be transacted at a special meeting unless the same be stated in the notice of said meeting. ’ ’ The action contemplated did not fall within the scope or purpose of the mentioned statutory special meeting. We find no occasion to discuss jurisdictional questions presented by defendants. The decree dismissing the bill is affirmed, with costs against plaintiffs. North, C. J., and Fead, Clark, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision.