Johnson v. Board of Canvassers

Hooker, J. At the 'village election of Casnovia, held on the second Monday in March, 1894, the official ballot contained but one ticket, i. e., the name of but one person for each and every office to be voted for at.such election. Relator’s name was printed thereon as candidate for the office of president. The relator was at that time president of said village, and for that reason did not act as inspector of election. The result of the election was [190] declared during the evening of election day by the inspectors, it being by them announced that relator had received 34 votes, and his competitor, John ~W. Dudley, 35 votes, for such office, and they made out a statement of the result of said election, in which they stated and gave out that said Dudley was elected president of said village. Upon Thursday following the election, viz., March 15, the council of said village convened to determine the result of said election, which meeting was adjourned one week without action. Before said adjourned meeting, relator made a petition for a recount of the votes cast for the office of president, and deposited the sum of $10, together with said petition, with the clerk of said village, and upon the 22d day of March caused a copy thereof to be served on said Dudley. The ground of • such application was the alleged failure of the inspectors to count for the relator [191] seven official ballots which were excluded by said inspectors for the reason that no stamp or cross appeared upon them. Relator’s petition alleges, and the return does not deny, that at said adjourned meeting the council declined to take any action in relation to his said petition, and adjourned without taking any action in regard to a canvass of said votes. The petition further states that Dudley gave out and claimed his election to said office. Relator thereupon obtained a writ of mandamus from the Kent circuit court, requiring respondents to meet-and count the votes cast at said election, and determine the result, and they bring the cause to this Court by certiorari. Three reasons are alleged for a reversal of the order of the circuit court: 1. The insufficiency of the petition for mandamus. [192] 3. That the statute does not authorize recounts in village elections. 3. That the unmarked ballots could not lawfully be counted. The act (No. 308, Laws of 1887) provides for the presentation to certain boards therein mentioned of a petition for a recount of ballots cast at any election by any candidate voted for at such election. Village boards or councils are not among them, and none of the boards mentioned have to do with elections of village officers. Were we to hold the act applicable to village elections, we should also be compelled to say that presentation to such boards was contemplated, though the express terms limit applications to those mentioned, viz., “board of city canvassers, if a city or ward office, or district board, or the board of county canvassers, in all other cases." We think it more reasonable to hold that the term “ any candidate voted for at any election" is limited by the other language of the act, and that it does not cover village, school-district, and possibly some other elections. ' The other important point relates to the ballot. Containing but one name for each office, there can be no doubt that the voter intended to vote for the peisons whose names were printed therein, unless we accept the ingenious argument of counsel that the voter desired that his ballot should not be counted, but put it in the ballot-box to deceive somebody, which would be going a great way to avoid the duties of citizenship. It is true that the law was not technically complied with by those who cast these ballots, but the stamping of these ballots would not, so far as we can see, have added to the certainty of the voter's intention, nor does the failure in any way hazard the rights of any one. In such a case the voter should not be deprived of his vote, if it can be avoided. We think, however, that the council could act only up [193] on the returns received from the board of inspectors, and that relator’s only remedy is by quo warranto. Roemer v. Board of Canvassers, 90 Mich. 27. We are therefore constrained to reverse the order of the circuit judge, with costs. The other Justices concurred.