Dingwall v. Common Council of Detroit

Morse, J. These applications for mandamus grow out of a disgraceful squabble between two factions of the common council of the city of Detroit, each seeking to get the advantage of the other in the appointment of election inspectors, who are ex officio members of the boards of registration. The charter of the city of Detroit, as amended by Act No. 564, Local Laws of 1887, page 909, provides for the election by ballot of five inspectors for each election district at the annual November election, who hold their offices for one year, or until their successors are duly elected and qualified. There is no provision for filling vacancies, except by the people at the polls. As it is provided that only three candidates can be voted for by any one elector, the minority party in each district is sure of representation on these boards in every district, and the chairman of the board, who is appointed as hereinafter stated, becomes a potent political factor on the board. The charter provides that the chairman of each board of inspectors shall be one of the aldermen of the ward, [570] or some elector of the election district, who are to be appointed as follows: “ Sec. 4. The common council shall, at least two weeks previous to each general election, assign and designate the aldermen from each ward to election districts therein, and shall at the same time appoint a suitable person, who shall be a qualified elector in the district, to each of the other districts in said city, and the alderman and person so appointed shall, respectively, be the chairman of the board of inspectors and of registration in their respective districts.” The chairman and five inspectors constitute these boards. They appoint the clerks of election. Any vacancy in those chairmanships, occasioned by death or removal from the district, is to be filled by the common council. If they neglect or refuse to do so, or a vacancy occurs from any other cause, the vacancy is to be filled by the people at the opening of the polls at any general or special election. Local Acts of 1887, p. 910. The common council met on October 21, 1890, and were proceeding to perform this duty, when Alderman Jacob introduced a resolution declaring the seat of Aider-man Dingwall of the first ward vacant, because of alleged removal therefrom. From the return of the majority of the aldermen present, and the city clerk, it appears that, thereupon, Alderman Yernor made a motion to adjourn. The yeas and nays were demanded by a sufficient number of aldermen, but, without calling the roll or putting the question, President Griggs declared the council adjourned, and left the chair. Alderman Yernor, who was president pro tern., refused to preside, and thereupon Alderman O’Kegan was called to the chair on motion and vote, and business was resumed. It pretty clearly appears from all the papers in the case that thereupon the minority — to wit, 11 members — left the council chamber for the purpose of breaking the quorum and preventing any further [571] business. The balance of the council — 15 in number and 1 less than a quorum — went on and transacted business, among other things assigning the aldermen, except in the first ward, to chairmanships, and other persons to the same, in conformity to the statute, and also going further and filling vacancies in the boards of inspectors. The record shows that the city clerk called the names of the 26 aldermen present at the opening of the meeting on every resolution, and recorded them as voting in the affirmative, Alderman Dingwall among the rest, although, after the 11 had left, the resolution declaring his seat vacant was passed. The minority were not justified in leaving the council, and the action of President Griggs in declaring the council adjourned was an outrage and cannot be excused. No presiding officer can arbitrarily adjourn a meeting in defiance of the majority present. It is very evident that the majority present were not in favor of adjournment, because they stayed and transacted business after the minority left. And these men who thus left the council chamber at the last meeting at which this designation and selection of chairmen of the different boards could be made under the strict letter of the charter, are entitled to no favor at the. hands of the courts. But this does not excuse the illegal action of those who remained. They well knew that they were without a quorum, and the counting of absent members, and recording them as voting in the affirmative on all questions, was also an inexcusable outrage, as was also the attempted unseating of Dingwall. The acts of both factions were exhibitions of political partisanship both unlawful and indecent. Such acts do not help either party, but serve only to disgust honest men of all parties. The courts cannot allow such proceedings to stand. But the people of Detroit cannot be disfranchised by [572] such proceedings, and the registration in that city which, has now taken place, the appointees of the meeting of October 21 acting upon such boards, is valid, and cannot be interfered with. They must be held to be de facto officers as far as they have acted, from the very necessity of the case. But none of them can act hereafter. It is the duty of the common council immediately to make a new designation and appointment of the chairman of each of the boards. The vacancies in the election inspectors can only be filled at the opening of the polls by the electors then present. And if the council, by the breaking of a quorum, or a tie vote, should neglect or refuse to fill the chairmanships, then the electors can do so at the opening of the polls. In relation to Alderman Dingwall it appears that he has since been recognized by the council, and the action taken on October 21 is admitted in the answer to have been illegal. No order is necessary on his application to have the portion of the record affecting him expunged. We cannot grant the order in full as prayed in the other case; but a writ of mandamus may issue to the common council requiring them to meet on Friday evening, October 31, 1890, at 9:30 o’clock, city time, and assign and designate under the charter the persons to act as chairmen of the different boards of election inspectors, at which meeting Alderman Dingwall must be recognized as an alderman. No costs will be allowed on either motion. Champlin, O. J., Long and Grant, JJ., concurred. Cahill, J., did not sit.