Lindquist v. Lindholm

Sharpe, J. Petitions for the recall of the plaintiff from the office of alderman of the fourth ward of the city of Iron Mountain were circulated, signed by the requisite number of voters, and filed with the defendant city clerk, as provided for in section 51 of the charter of said city. The reason assigned for the recall here relied upon was thus stated: “Second. That Alderman Edward O. Lindquist voted for himself for the office of mayor fro tem. of the city council at the meeting of the council, May 4, 1931, and thereby violated section 10 of the city charter, which says: ‘No alderman shall vote on any question in which he shall have a direct personal interest.’” *154 A call for a special election pursuant thereto was issued, whereupon the plaintiff filed his petition herein for mandamus to “vacate and countermand” such call and to restrain the defendant board of election commissioners from preparing the ballots therefor. An order to show cause was issued, and, after return thereto and hearing had, the trial court denied the same. An appeal to this court was allowed. On consideration of the record and briefs presented, it seemed to us that the question to be decided was whether the plaintiff was legally elected mayor pro tem. by the city council. We thereupon requested counsel to file briefs expressive of their views on this question. With the aid of those furnished we have given the matter further consideration, and are impressed that the right of plaintiff to hold this office should be tested by a quo warranto proceeding, and may not be made the basis of a petition for recall. If the plaintiff had the right to vote for himself in the election of a mayor pro tem. by the council, he is entitled to perform the duties of that office; if not, then no mayor pro tem. was elected by the council, and the plaintiff has no legal right to fill the office. This court has many times held that the only way to try titles to office finally and conclusively is by quo warranto. Curran v. Norris, 58 Mich. 512; Frey v. Michie, 68 Mich. 323; Gildemeister v. Lindsay, 212 Mich. 299. The provisions for such a proceeding are clearly outlined in the statute. 3 Comp. Laws 1929, § 15271 et seq. The office in question is one provided for in the charter of the city under the power conferred on it by the Constitution and laws of the State. *155 The impropriety of permitting plaintiff’s right to hold this office to be tested by a recall would seem apparent. The statute relating thereto (1 Comp. Laws 1929, § 3383) provides that the petition therefor “shall state clearly the reason or reasons for said demand.” In Newberg v. Donnelly, 235 Mich. 531, 534, it was held that the statement of the reasons “must be such as will furnish information to the electors on which they may form a judgment when called upon to vote.” See, also, People, ex rel. Elliot, v. O’Hara, 246 Mich. 312. Plaintiff’s right to vote for himself for the office in question under the charter provision involves a construction of the language used therein upon which attorneys and courts may well differ, and, in our opinion, the ordinary voter could not intelligently express a judgment thereon. The writ will issue as prayed for in the petition. As this question was not raised on the hearing in the trial court, and as the matter is one of public interest, no costs will be allowed. Clark, C. J., and McDonald, Potter, North, Dead, Wiest, and Butzel, JJ., concurred.