Maynard v. Board of Canvassers , 11 L.R.A. 332 ( 1890 )

Champlin, O. J.

The Legislature, at its biennial session of 1889, passed an act numbered 254 (3 How. Stat. p. 2835), entitled—

“An act relating to the election of Eepresentatives to the State Legislature in districts where more than one is to be elected.”

Sections 1 and 2 of said act read as follows:

“Sec. 1. The People■ of the State of Michigan enact, That, in all elections of Eepresentatives to the State Legislature in districts where more than one is to be elected, each qualified elector may cast as many votes for one candidate as there are Eepresentatives to be elected, or may distribute the same among the candidates as he may see fit, and the candidates highest in votes shall be declared elected.

“’Sec. 2. The name or names of the person or persons for whom such elector intends to vote for as a Bepresentative to the State Legislature shall be written or printed, or partly written and partly printed, upon the ballot containing the names of the persons to be voted for for other State offices, and opposite the name of each person voted for as a Bepr'esentative to the State Legislature there shall be written or printed in plain figures the number of times the elector intends to vote for said person in whole numbers: Provided, That in case the total of the numbers opposite the names of the persons voted for exceed the total number of Eepresentatives to be elected from that district, the excess shall bo taken from the person so voted for lowest on the ticket, and, should there still be an excess, then from the next above, until the numbers correspond.”

Section ,3 repeals all laws and parts of laws inconsistent therewith. This act was approved by the Governor on July 3, 1889.

The city of Grand Rapids comprises one election district, and is entitled to elect two Representatives to the State Legislature. It is known as “ The First Representative District.” Fred A. Maynard, the relator, is an elector residing in that district, and in his petition, duly verified, in which he prays for a mandamus, states that on November 4, 1890, there were in said election district 14,272 qualified electors duly registered according to law, and entitled to vote for the officers then to be elected, and to elect two Representatives in the State Legislature; and that under, the laws of this State each of said electors ivas entitled to cast his vote for two Representatives in the State Legislature, one vote for each, or to cast for one person for Representative in said Legislature two votes, as the elector might see fit; that at said election 13,000 of said qualified electors voted for the several officers to be elected; that at said election 5 persons were voted for as Representatives, including relator; that the returns from the several voting precincts have been duly returned .and filed; that such returns show that, for the office of Representative, relator received 8,368 votes; Mr. White, 7,358; Mr. Hayward, 7,074; Mr. Thaw, 623 votes; and Mr. Belden, 1 vote; that the inspectors in several of the precincts counted and returned the cumulative votes for relator as single votes only; that the board of district canvassers met, and from the returns made a statement that, for said office of Representative, White received 7,258 votes; Hayward, 7,074 votes; Maynard, the relator, 5,374 votes; Thaw, 623 votes; and Belden, 1 vote, — and determined that White and Hayward were elected; that relator had the greatest number of votes, and was duly elected Representative; that he bases his claim to election upon the legality of said cumulative votes, and avers that if every ballot having his name only for Representative as aforesaid, with the statement “ two votes” opposite the name as aforesaid, shall be counted as two votes, then he received more than 10,000 votes for said office, and this exceeded the votes given for any other candidate. lie admits that, if said votes cannot be counted for him cumulatively, — that is, if every ballot having the statement “two votes,” as aforesaid, for him js legal only as one vote, and must be so counted, — then the said White and Hayward received a greater number of votes for Representative at said election than the relator. He prays for a mandamus to compel the board of district canvassers to declare him elected, and that the chairman and clerk certify the same.

The board of canvassers have answered, in which they deny that the cumulative votes cast for relator are legal, and deny that they should be counted. They set up that, previous to the election held on November 4 last, a convention of the Democratic party of the first representative district met, and placed in nomination Arthur S. White and John W. Hayward for the office of Representatives in the State Legislature, to be voted for upon a general ticket at the said election, and their names were so printed upon the 'tickets of that party; that a convention of the Republican party also met previous to the election, and placed in nomination only one person as Representative, and that person was Fred A. Maynard, the relator, and his name was printed upon the tickets of that party, with the words “two votes” opposite said name; that the ballots used at said election were furnished by the Secretary of State of the State of Michigan for that purpose; that the returns from every precinct show a large excess of votes cast over the number of voters listed in the poll-lists. These poll-lists show that 13,164 'electors voted in the city, and the return of votes shows that 23,799 votes wore cast, — an excess of 10,635 votes. The board claim that the act above recited is unconstitutional and void, and, so considering it, they disregarded it, and declared those persons elected who had received the highest number of votes, counting one vote to a ballot.

At the time of the argument, petitions for mandamus had been filed on behalf of' four persons who claim to have been elected by cumulative votes to the office of Representative in the city of Detroit, and counsel re|3resenting the parties in interest there were permitted to present their views upon the constitutionality of the law.

There has been in the latter half of the present century a growing desire to secure to minorities a proportionate representation in legislative and corporate bodies, and from time to time schemes have been advocated by those who have desired to bring about what they claim as a reform in existing modes of election to secure to the minority a just and proportionate representation. These schemes may all be reduced to four well-recognized classes, viz.:

1. ‘The “restrictive,” which requires a certain number to be -elected on one ticket, and prohibits any elector from voting for the whole number to be elected. Thus, if four are to be elected, no one can vote for more than two.

2. The “ cumulative,” which requires three or more to be elected, and permits the elector to cast as many votes as there are persons to be elected, and to distribute such votes among the candidates as the elector may choose.

3. The “ Geneva,” “ free vote,” or “ Gilpin ” plan. By this plan the districts are required to be large, and each party puts in nomination a full ticket, and each voter casts a single ballot. The whole number of ballots having been ascertained, that sum is divided by the number of places to be filled, and each ticket is entitled to the places in proportion to the number of votes cast by it, taking the persons elected from the head of the tickets. This plan doubtless comes the nearest to a proportional representation of the minority of any plan devised which is practical for popular elections. It was originated by Hr. Gilpin in 1844, who advocated it in a pamphlet published in' Philadelphia. It has never been adopted in this country,, but has become the liste libre of Geneva, and is said to work well in Switzerland.

4. The “ liare " plan, or “ single vote." This method is too intricate and tedious ever to be adopted for popular elections by the people. It requires successive counts and redistribution of the votes until an election is reached.

The effort to realize minority representation hy the use of the restrictive method was tried in Ohio, under an act passed in that state. The law was declared unconstitu. tional by the supreme court. State v. Constantine, 42 Ohio St. 437. That court held that it was the right of every elector to vote for every candidate or person to fill the offices provided by law to be elected by vote of electors, and a law which said that no person could vote for more than two of the four persons to be elected took away from the elector a substantial right guaranteed to him by the constitution.

In Pennsylvania, Mr. Buckalewe for many years advocated the adoption of the system of cumulative voting in order to secure minority representation; and, mainly through his efforts, in 1874 a provision was inserted in the constitution of Pennsylvania (article 16, § 4) permitting stockholders in corporations to vote cumulatively upon the shares of stock. It was held in Hays v. Com., 82 Penn. St. 518, that, as to corporations existing at the time the constitutional provision was adopted, the constitutional provision could not apply, because it interfered with and affected existing vested rights.

In 1870 the state of Illinois adopted a new constitution, which contains this provision (article 4 §§ 7, 8):

“The house of representatives shall consist of three times the number of the members of'the senate, and the term of office shall be two years. Three representatives shall be elected in each senatorial district at the general election in' the year of our Lord 1872, and every two years thereafter. In all elections of representatives aforesaid, each qualified voter may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same, or equal parts thereof, among the candidates, as he shall see fit, and the candidates highest in votes shall be declared elected.”

In Nebraska (article 11, § 5), in West Virginia (article 11, § 4), in Missouri (article 12, § G), and in California (article 12, § 12), by constitutional enactment, cumulative voting is permitted upon stock in corporations. So far as I am aware, Illinois is the only state which has tried the experiment of cumulative voting for members of the-legislature. It is significant that all the states which have authorized such voting have submitted it to the-people for their adoption as a part of the fundamental law. In Ohio the legislature endeavored to authorize it, without a constitutional amendment, and it was declared unconstitutional. In New York there has been legislation sanctioning such voting in certain cases;- and, although the question has been twice before the court, of appeals of that state, that court found a way of disposing of the cases in which the questions were raised without passing upon the constitutionality of the law. People v. Crissey, 91 N. Y. 616; People v. Kenney, 96 Id. 294.

Such has been the action of other states. Is the law contrary to the Constitution of this State? The provisions of the Constitution bearing upon this question are those relating to elections, and those to the election of Representatives. Article 7, § 1, prescribes the qualification of electors. It says: “In all elections, every male citizen * * * shall be an elector, and entitled to vote.” Section 2 provides that “all votes shall be given by ballot, except for such township officers as may be authorizecl by law to be otherwise chosen.” Article 4, § 2,' provides that the Senate shall consist of 32 members. They shall be elected for two years, and by single districts. Each district shall choose one senator. No county shall be divided in the formation of Senate districts, except such county shall be equitably entitled to two or more Senators. Section 3 provides that the House of Eepresentatives shall consist of not less than 64, nor more than 100, members. Eepresentatives shall be chosen for two years, and by single districts. No township or city shall be divided in the formation of a Eepresentative district, but, when any township or city shall contain a population which entitles it to more than one Eepresentative, “then such township or city shall elect, by general ticket, the number of Eepresentatives to which it is entitled.” Section 34 provides that the election of Senators and Eepresentatives shall be held on the Tuesday succeeding the first Monday of November biennially. The first Constitution, adopted in 1835, was substantially the same, except that elections were annual. Senators and Eepresentatives were not required to be elected by single districts.

Laws were immediately enacted providing for elections, and the manner of conducting them, under which every elector was entitled to express his will as to the choice of rulers, and who should represent him in the Legislature, by depositing a ballot upon which his choice was indicated, containing the name of one person for one office; and if two ballots were found folded together in the box, or if any ballot included more than one name for any office, they were destroyed as fraudulent and illegal, and not counted. These laws were in force at the time of the adoption of the present Constitution, and have been continued in force ever since. They afford a practical construction of the right of every elector to vote for every officer to be elected, and that his vote shall be of equal effect with, and no more than, the vote of every other elector for every officer to be elected. Laws were passed, and exist to-day, punishing any elector for voting more than once for any candidate. Bepeaters and ballot-box stuffers were condemned under severe penalties. Such has been the Constitution and practical operation under it for more than half a century. More than this, such has been the practice by all the states of our Union under constitutional provisions similar to ours.

It was conceded upon the argument by counsel who appeared to defend the constitutionality of this law that, when the Constitution was adopted, no such thing was thought of as cumulative voting; that it is a recent invention; and that our people, when they adopted the Constitution, had no thought of investing the Legislature with the right of enacting a cumulative voting law; but they contend that, no matter what has been the uniform custom, the Legislature has the power to enact a cumulative voting law, or any other law that is not expressly or by plain implication forbidden them to do by the Constitution. The rules for construing the Constitution of this State have often been passed upon by this Court, and certain principles recognized in the performance of this duty. Thus, it has been said that, before an act of the Legislature can be declared by the courts unconstitutional, it must be prohibited by the exjjress words of that instrument, or by irecessary implication; and some members of the Court have gone so far as to say that, before you can declare the act void, you must be able to lay your finger upon the very language of the Constitution which prohibits the exercise of the power of the Legislature to enact the law. Scott v. Smart’s Ex’rs, 1 Mich. 295; People v. Gallagher, 4 Id. 244; Sears v. Cottrell, 5 Id. 251; Tyler v. People, 8 Id. 320; People v. Blodgett, 13 Id. 127; People v. Mahaney, Id. 481. The rule above announced has not been unquestioned, and in almost every case the result announced failed to secure the unanimous concurrence of the members of the Court.

In reaching a conclusion as to whether an act of the Legislature is prohibited by the express language or by necessary implication, and to enable the Court correctly to construe the Constitution, certain rules have been laid down for its guidance which will be now referred to.

“ Constitutions,” says Mr. Justice Cooley in the case of Bay City v. State Treasurer, 23 Mich., at page 506,' “do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberate action; and it cannot be permissible to the courts that, in 'order to aid evasions and circumventions, they shall subject these instruments, which in the main only undertake to lay down broad general principles, to a literal and technical construction, as if they were great public enemies, standing in the way of progress, and the duty of every good citizen was to get around their provisions whenever practicable, and give them a damaging thrust whenever convenient. They -must construe them as the people did in their adoption, if the means of arriving at that construction are within their power.”

Chief Justice Ohristiancy, in Kennedy v. Gies, 25 Mich. 83, said:

“ In legal reasoning, and in the construction of constitutions and statutes, we are often compelled to content ourselves with conclusions somewhat less certain than those involved in mathematical axioms, because neither conventions nor legislatures always use language with mathematical accuracy, and neither the human mind nor human affairs will always submit to merely mathematical, rule. For various reasons, and - upon various grounds, ■exceptions or qualifications are sometimes implied, though not expressed.”

The learned Judge then instances cases where, if the Legislature should give to courts jurisdiction to try cases involving certain amounts or of a certain character, such act of the Legislature would not give such judge the right to try his own cause. In that case, also, he held that it was legitimate to inquire whether there was not something in the nature of the provision itself, considered in connection with the legislative and judicial history of the State, and the action of the convention which framed it, which might furnish a satisfactory inference that such an exception was intended, and should therefore be implied.

In People v. Harding, 53 Mich. 485, Mr. Chief Justice Cooley said:

In seeking for the real meaning of the Constitution, “we must take into consideration the times and circumstances under which the State Constitution was .formed, the general spirit of the times, and the prevailing sentiments among the people. Every constitution has a history of its own, which is likely to be more or less peculiar, and, unless interpreted in the light of this history, is liable to be made' to express purposes which were never within the minds of the people in agreeing to it. This the Court must keep in, mind when called upon to interpret it, for their duty is to enforce the law which the people have made, and not some other law which the words of the Constitution may possibly be made to express.”

In the ease of Attorney General v. Detroit Common Council, 58 Mich. 216, some views of our late associate, Mr. Justice Campbell, are of special significance as bearing upon the question under consideration. He said:

“It is needless to explain that under that instrument the whole scheme of government, in every department, depends upon the action of the qualified voters in their election districts. * * * All legislation imposing restraints or conditions upon voting must conform to the other clauses and provisions of the Constitution. No part of that instrument can be allowed to override of destroy any other part. * * * There is nothing in the Constitution which permits the Legislature, under the desire to purify elections, to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise. And as the right of voting is the same everywhere, it is obvious that the conditions regulating the manner of exercising it must be the same, in substance, everywhere. The machinery of government differs in its details in cities, villages, and townships; and of course it is unavoidable that there must be some differences in methods and officers to administer the election laws. But it cannot be lawful to create substantial or serious differences in the fundamental rights of citizens in different localities in the exercise of their voting franchises.”

In the light of these decisions there is in my mind no doubt that the act under consideration is unconstitutional. The Constitution is the outgrowth of a desire of the! people for a representative form of government. The foundation of such a system of government is, and always has been, unless the people have otherwise signified by their constitution, that every elector entitled to cast his ballot stands upon a complete political equality with every other elector, and that the majority or plu" rality of votes cast for any person or measure must prevail. All free representative governments rest on this, .and there is no other way in which a free government may be carried on and maintained. That the majority must rule, lies at the root of the system of a republican form of government no less than it does in a democratic. IVhen there are more than two candidates for the same •office placed in nomination, it may often happen that one candidate, although he may receive more votes than any other, may not receive a majority of the votes cast-Still the principle of majority rule is preserved, for in such case more of the electors prefer such candidate than they do any other particular candidate to represent them. It is the constitutional right of every elector, in voting for any person to represent him in the Legislature, to express his will by his ballot; and such vote shall be of as much influence or weight in the result, as to any candidate voted for, as the ballot and vote of any other elector. The Constitution does not contemplate, but by implication forbids, any elector to cast more than one vote for any candidate for any office. This prohibition is implied from the system of representative government provided for in that instrument.

The political history of the State from 1836 to the present time shows that every elector has an equal voice in the choice of those who shall represent the people in the Legislature. It is implied in those provisions of the Constitution which require that Rejsresentatives in the Legislature shall be chosen by ballot, and by single districts. By these provisions every elector expresses his wish by ballot, and a single vote is implied. It is implied in those provisions of the Constitution that declare that every male citizen of 21 years of age, and possessing the qualifications prescribed, shall be entitled to vote at all elections; and that all votes shall be given by ballot, except for such township officers as may be authorized by law to be otherwise chosen. What do these provisions express? What is the meaning of the word “vote?” It means, according to Worcester,—

“Suffrage; voice or opinion of a person given in some matter which is commonly to be determined by a majority of voices or opinions of persons who are empowéred to give them; the wish of an individual in regard to any question, measure, or choice, expressed by word of mouth, by ballot, or otherwise; that by which the will, preference, or opinion of a person is expressed; a ballot.”

See, also, Bouv. Law Dict. tit. “Vote.” And what is meant by the word “elections,” used in this article of the Constitution? Bouvier defines “election” as signifying the choice which several persons collectively make of a person to fill an office or place. This is the most usual acceptation of the term,. We think, also, that he expresses the common opinion of the public in the fourth paragraph under this title, where he says:

“ One of the cardinal principles on the subject of elections is that the person who receives a majority or plurality of the votes is the person elected. Generally, a plurality of the votes of the electors present is sufficient, but 'in some states a majority of all the votes is required. Each elector has one vote.”

Giving to the language of the Constitution its ordinary signification, it declares the principle that each elector is entitled to express his choice for Representative, as well as all other officers, which is by his vote, and the manner of .expressing such choice is by ballot. When he has expressed his preference in this manner, he has exhausted his privilege; and it is not in the power of the Legislature to give to his preference or choice, without conflicting with these provisions of the Constitution, more than a single expression of opinion or choice. As to members of the Legislature, county or township officers, the Constitution nowhere in express terms prohibits the Legislature from enacting a law that the certificates of election shall be issued to the person having the least number of votes. This is practically what is asked for in this case, for relator admits that he has received a minority of the votes cast, if each elector can cast but one vote for a candidate. No one would contend that a law declaring the person who received the least number of votes elected to an office would be a constitutional and valid law; and yet we cannot lay our finger upon the clause prohibiting in terms such legislation.

It is true, the Constitution does not prohibit the Legislature by express language from concocting' some scheme by which the equality of the electors in the choice of' Representatives may be impaired or defeated. There is nothing in the Constitution which by express language prohibits the Legislature from enacting a law providing that such electors as appear by the assessment roll of the preceding year to have been assessed $1,000 and upward shall have an additional vote for each $1,000 for which they are assessed and pay taxes on. This would permit every elector qualified under the Constitution to vote at least once, and others to vote as many times as they were assessed $1,000 upon the assessment, roll. It requires no argument to show- that such legislation would defeat the object of the elective franchise, which is that every elect- or’s franchise is of equal value to that of every other elector, and it would subvert the will of the people as expressed through the ballot. And such is the case before us. No reason can be given why, under our Constitution, one elector should be entitled to vote twice or seven times for any particular person to represent him in the Legislature, when any other elector, who desires to exercise the right which the Constitution gives him to vote for every person allowed by law to represent him in the Legislature, is permitted to vote but once. The choice of the elector, as expressed by the ballot, who “plumps” his vote under this law is equal to the choice of two electors in Grand Eapids, or to seven in Detroit, who exercise the right which the Constitution gives them to vote for every candidate to be chosen. It is no answer to say that he, too, may forego the right of an elector to vote for the number of Eepresentatives which the law permits in cities entitled to more than one Eepresentative; for to do so he is compelled to relinquish a. constitutional right, and his right as an elector is in this respect abridged. What different in principle or in result is this law, which permits one elector to cast more than one vote for a candidate, from the act of the person who stuffs a ballot-box with more votes for a particular candidate than there were electors voting for him? The only difference is that in one case the will of the majority is overcome and defeated under the forms of law, and in the other without law. Both are frauds upon the rights of the majority of the electors; both alike strike down the constitutional safeguards of the people; both are subversive of a free representative government.

It must be conceded that the Constitution, by implication, prohibits cumulative voting in single districts; that is, where but one Representative can be elected. The prohibition is equally strong in cities or towns where, by the Constitution, more than one Representative can be elected. With regard to such municipalities, the Constitution declares that such town or city shall elect by general ticket the number of Representatives to which it is entitled. Here the method of election is prescribed, and cannot be ignored. What is meant by the term “general ticket?” In the connection in which the language occurs, the term “ general ticket” is opposed to “partial” or *' special,” and signifies that the whole number of Representatives to which the town or city is entitled shall be placed upon the ticket to be voted, thereby constituting a “ general ticket.” This signification corresponds with the primary meaning of the word “general” as defined by lexicographers. It is, moreover, consistent with the provision for electing Representatives when only one is to be chosen, making the whole proceedings uniform throughout the State. Any other construction, or any construction of the Constitution which will permit an elector to vote more than once for the same person to be a Representative, would destroy that uniformity of the right of every elector, wherever he may reside in this State, to cast one vote, and but one vote, for each Representative for which he is entitled to vote; and as was said by Mr. Justice Campbell in the case of Attorney General v. Detroit Common Council, 58 Mich. 216,—

“It cannot be lawful to create substantial or serious differences in the fundamental rights of citizens in different localities in the exercise of their voting franchises.”

The law under consideration does-create substantial and serious differences between the rights of the electors in Grand Rapids and in Detroit and those of other parts of the State, in the exercise of their voting franchise. In Grand Rapids it defeats the will of a majority of the electors, and, instead of securing a minority representation, it gives an equal representation with the majority. In Detroit, as stated upon the argument of the learned counsel, instead of that municipality being represented in the Legislature by those electors who constituted a majority who voted for Representatives, and, if no elector had voted more than once for any candidate, such majority would have elected seven Representatives, the¡i minority of ’ the electors voting have elected four out [ of the seven by “plumping” their • votes in different ' parts of the city. Here the will of the majority has been defeated and overridden by votes which do not represent the will of an individual elector in each case, but which do represent, if the law is constitutional, a legal stuffing of the ballot-boxes with false votes. In this State, no matter by what means accomplished, whether because a candidate who receives a majority of the votes is ineligible, or whether an elector votes more than once for a candidate, no person is elected who receives only the vote of a minority of the electors voting. People v. Molitor, 23 Mich. 341. Although the Constitution requires Representatives to be elected upon a general ticket in the cases specified,- yet every elector is not obliged to vote for every office to be filled, or for every person on the ticket. He may vote for one or more, but-he cannot vote more than once for any one person, for the reason before stated.

Under ordinary circumstances, where a person claims an election to a legislative body which is the sole judge of the election and qualifications of its own members, we should not grant a writ of mandamus to compel the canvassing board to r.everse its action. Sherburne v. Horn, 45 Mich. 160. And while we adhere to the doctrine laid down in several of our previous decisions, that the duties of a canvassing board are ¡surely ministerial, yet, feeling, as we do, that the law is unconstitutional under which the relator claims to have been elected, we should stultify ourselves to command even a ministerial board to observe it. Happily, we are relieved from such dilemma by the honorable course of the relator, who has set up the fact in his petition that he is not entitled to the certificate unless the votes can be counted for him cumulatively, and that a less number of. electors voted for him than for those whom the canvassing board have declared •elected, and his counsel frankly states to us that unless the cumulative voting law is valid his client has no claim and asks no relief. TVe have also a precedent from Ohio, where the duty of the canvas.sing board is ministerial, but who refused a certificate of election to an office claimed to b'e vacant, but which they deemed not vacant. The supreme court held that although the duties of the canvassing board were ministerial, and they had no right to consider the question of vacancy, yet the court would consider it, and not compel the performance of an act that was useless. State v. McGregor, 44 Ohio St. 628 (10 N. E. Rep. 66).

If the people of this State desire to provide for some different means to secure minority representation than that which is. in a measure secured by the single district system under the present Constitution, they must do sot through, an amendment to that instrument, by which a proposition so vitally interesting to them may be passed, upon by the popular vote; but it is to be hoped that, when a plan is submitted to them, it will not be the system of cumulative voting, which obtains such unequal and unjust results, overturning, in many instances, the-'j will of the majority, and concerning which Mr. Horton, * in the Penn. Monthly for June, 1873, said:

. “The larger the district, the more dangerous the peculiarities of this system. Were it tried on such a scale as that of congressional elections in Ohio, anything like fairness or proportionality would at first be impossible. Tending, as it plainly must, if unrestrained, to make representation fluctuating and disproportionate. It would eventually compel the tightening of the already oppressive bands of party discipline. In general, the scale which, under the present district system, tends now to a majority, and now to a minority, would be permanently weighed down in favor of a minority.55

If proportional representation is desired, the Geneva orjj Gilpin plan approaches the nearest to exact justice. But-.', every plan yet devised is open to serious objection. Were the law under consideration a valid emanation of legislative power, we should not offer any suggestions as to its wisdom or expediency, and what we have said is in response to the argument advanced that there was a wide_ spread and prevailing desire for some sort of minority representation.

Upon consideration of the whole record, the application must be denied.

Morse and Long, JJ., concurred with Champlin, C. J.

Grant, J.

The respondent declined to canvass and count the votes for Representatives in the Legislature in the city of Grand Rapids, and to issue a certificate to relator, according to Act No. 254, Laws of 1889, which provides for cumulative voting in certain cities entitled to more than one Representative. This refusal is based upon the unconstitutionality of the act. The relator thereupon presented his petition to this Court to compel the canvassing of the votes, and the issuance of a certificate to him.

At the threshold of this controversy is ah insurmountable objection to the position taken by the respondent, if it were insisted upon. The sole duty of the canvassers under the law is to examine the original statements certified to them by the several boards of inspectors of election, or certified or corrected copies thereof, and from them to ascertain the number of votes cast for the different officers, and to make statements thereof, and issue certificates accordingly. They have no discretion, no judicial power or functions, and no ministerial functions, except in so far as the word “ministerial" means “clerical," which is one of its definitions given by Webster. Their functions, therefore, are purely clerical. The relator, upon the face of' the returns, was entitled to a certificate of election. The real question here is, who was elected Representative? The proceeding by mandamus is not the proper remedy to try the title to an office. This can only be done, finally and conclusively, by quo warranto proceedings. Frey v. Michie, 68 Mich. 323. In my judgment, it was never contemplated by the Legislature that the board of canvasser's should possess any other power than to canvass the returns and to declare the result. This does not determine the title, to the office. The certificate is only prima facie evidence of title, throwing the burden of proof upon him who contests. People v. Van Cleve, 1 Mich. 363; Sherburne v. Horne, 45 Id. 160. The canvassers have no right to shift this burden of proof by withholding the certificate, or issuing it to another.

But it is said that constitutional questions have often been raised and decided by this Court in mandamus proceedings. This is true where personal and property rights are involved, and great inconvenience and damage would result if prompt action were not taken. ■ In such case the public officer or body charged with the performance of duty may either decline to act on the ground of the alleged unconstitutionality of the law, or he may proceed. In either event mandamus will lie, — to set him in motion in the one case, and to restrain him in the other. But this does'not apply to cases where the duty of the officer is only clerical or ministerial, and the law provides an ample remedy afterwards to test the validity of his action, and that, too, without any inconvenience or damage. In such case the officer must perform his duty, and leave the parties interested to contest the result in the proper forum and by the proper proceeding. He should not, in such case, be heard to plead the unconstitutionality of the law as an excuse for his refusal.

The result of the respondent's action in this case is to shift the burden of proof to one upon whom the law in such cases does not place it. It can make no difference that that burden involves the constitutionality of the law, rather than a question of fact. This is not the proper proceeding, therefore, to raise the constitutionality of this act of the Legislature; and this Court should, in my judgment, decline to determine it in all cases where it is not expressly waived by the relator. This the relator has// done, and upon that ground alone I consent to a deter-]/, mination of the main question. Upon this question I fully concur in the result reached by my Brother Chaiiplin, and in his reasons therefor.