Trumbull v. Board of Canvassers

Ostrander, J. (after stating the facts). As adopted, the act above quoted provided for the application by an aggrieved candidate to the board of city canvassers if a city or ward office was in question, to district boards (whatever that may have been intended to mean) and to the board of county canvassers in all other cases. In other respects, the provisions of the act were substantially-the same as they now appear. Before the act was amended to its present form, the legislature in 1891 (Act No. 190, Pub. Act 1891) provided for an official ballot upon which the names of all candidates for office are to be printed. Later the case of May v. Board of Canvassers, 94 Mich. 505, was before this court. It was said in -the opinion in that case: “We deem it proper to add that the law in its present form is not well adapted to our present system of voting. The chief purpose of the act was to furnish a way for the correction of mistakes in the original count. At the time of its enactment candidates were voted for on separate tickets, and it could rarely occur that any ground of difference would exist as to what ballots should be counted for a particular candidate. Since its enactment the general election law of 1891 has provided for an official ballot, upon which the names of all the candidates are printed, and prohibiting distinguishing marks. It has come within the observation of this court that this provision has resulted in bitter controversies, and has furnished ample opportunity for radical disagreements as to what constitutes distinguishing marks, and the power thus vested in partisan tribunals arbitrarily to determine this question is [536] liable to result in future scandal, unless some means of direct judicial review be provided. ” In the case before us we are confronted with another difficulty. The act in terms makes it the duty of the board of canvassers, upon receiving the petition of an aggrieved candidate, “to proceed to make an investigation of the facts set forth in said petition;” For such purpose the power is expressly given to the board to cause ballot boxes to be brought before it, to appoint a committee to make a recount of ballots. It was said'in May v. Board of Canvassers, supra, that the board, in the absence of suggestion to the contrary, might indulge the legal presumption that the ballot boxes called for had been preserved in their integrity. This presumption is, of course, based upon the various provisions of law for returning the ballots to boxes by the inspectors and the sealing and custody of the boxes. “We have no doubt,” the opinion proceeds, “ that, if it had been brought to the attention of the board that the ballot boxes were claimed to have been tampered with, it would have become the duty of the board to cause the boxes to be brought before it and make an investigation. Such investigation would, by the terms of thé statute, evidently be confined to an inspection of the boxes themselves, and the board would be authorized to exercise the quasi judicial function of determining whether a recount of the ballots as cast could be had. If an inspection of the boxes show that they have not been preserved in their integrity, we think it would be extravagant to claim that the law is so imperative in its requirements that the official return, presumably correct, could be overcome by any such experiment as a count of ballots which are not apparently the same as those cast at the election.” It is true that this court has decided that a vote cast by a machine is a constitutional ballot. City of Detroit v. Board of Election Inspectors, 139 Mich. 548. It is true that the Abbott voting machine is one used by express legislative permission. But there is no basis in the statute authorizing its use, or- in any rules or regulations of the city of Jackson, for the legal presumption that, [537] after the inspectors of election have read the machine at the close of an election and declared the result, the machine and the registers of votes remains unchanged. It may be that, as in* the case before us, a showing of facts can be presented from which the board of canvassers may presume that in fact the machine has remained unchanged. If the fact is contested, may the board of canvassers determine the truth of the matter ? This question must be answered with reference to the other provisions of the statute, as well as to general rales concerning the exercise of judicial functions by tribunals such as a board of city canvassers. A provision of the statute to which we direct attention is the one reading: “ For fraudulent or illegal voting or tampering with the ballot boxes before a recount by the board of canvassers, the remedy by quo warranto shall remain in full force together with any other remedies now existing.” 1 Comp. Laws, § 3725. Whatever our view may be of the legal force of the provision of the statute referred to, its presence in the law is bound to affect our judgment concerning the applicability of the law to the case of a contested election when the voting is by machine. There being no legal presumption that the machine has remained unchanged, the fact must be, in some cases at least, determined by the testimony of those supposed to have information. This involves the weighing of testimony, and generally the exercise of judicial power. Plainly, the act in question was not intended for elections conducted by machines. This being so, in view of the difficulties in applying the statute to the case before us —difficulties which we have rather suggested than discussed — we are of opinion that the order of the court below directing the board of canvassers to examine the voting machine should not have been made. It is reversed, and set aside. No costs are awarded. Moore, C. J., and Carpenter, McAlvat, and Hooker, JJ., concurred.