Holt v. Board of Supervisors

Ostrander, J. It is one thing to determine in advance of an election that an illegal provision for the method of holding it shall not be enforced, as was done in Attorney General v. Board of Councilmen of Detroit, 58 Mich. 213 (24 N. W. 887, 55 Am. Rep. 675), and quite another thing to determine that the [242] actual result of an election which has been held shall not be conclusive. No citizen is. here claiming that he was deprived of the right to vote. It does not appear that any one was misled, or refrained from voting, or voted illegally, because of the manner of holding the election. The subject to be voted upon was published to the electors, a place for voting was. furnished, ballots were prepared, and the actual result was honestly declared. Conceding that the legislative direction for holding elections in the city of West Branch is not in harmony with the Constitution, and conceding, further, the general rule to be that an unconstitutional law is no law and cannot be made the justification, in law, for any action or nonaction, the invalid law is not here used to justify, but is sought to be used to defeat, the action of electors. The right of the electors affected to vote at the time the vote was taken, upon the matters actually voted upon, does not come from the invalid provisions of the statute. The complaint is that, following the invalid direction, the right was exercised in an improper voting place, in charge of persons having an apparent, but not a real, right to receive and count the votes. By applying a rule intended to preserve the rights of the electors, it is proposed to defeat the will of the electors, with the expression of which the operation of the invalid law is not shown to have in any way interfered. It is a serious undertaking, and the principle involved is not changed by the nature of the matter voted upon. The same rule should be applied as. in cases where it is sought to disfranchise voters on account of the action, or omission, of officers in following, or failing to follow, the rules governing elections. Adsit v. Secretary of State, 84 Mich. 420 (48 N. W. 31, 11 L. R. A. 534); People v. Avery, 102 Mich. 572 (61 N. W. [243] 4); Bragdon v. Navarre, 102 Mich. 259 (60 N. W. 277), and cases cited in the opinions. Usually, the writ of mandamus will not be granted where justice does not require it. I think the court below was right, and its action should be affirmed. Brooke, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred with Ostrander, J.