Roemer v. Board of City Canvassers ( 1892 )

Montgomery, J.

Eelator was a candidate at the November election for alderman of the Fifth ward of the city of Detroit. At the close of the polls the inspectors of election for the third district of the said ward made a canvass of the votes,' publicly announced the result, and prepared and signed a return, which was at once filed with the city clerk. This return shows that the relator received 350 votes in such district, and that Alois A. Deimel received 171 votes. The board of canvassers convened on the 7th of November, for the purpose of canvassing the returns. Canvasser Erhard, who was also one of the inspectors of election for the precinct in question, represented to the board that a mistake had been made by the inspectors in stating the number of votes cast for relator and Deimel, respectively, and produced a so-called corrected return, signed by the inspectors, which showed that Deimel received 383 votes, and the relator 358. This now return, it appears, was prepared nearly a week after the first return had been filed with the city clerk. The board of canvassers proceeded to appoint a committee to examine the tally-sheets of the district in question, to be found in the boxes in custody of the police department, with instructions to report their finding to the board. The committee proceeded to investigate, and made a report, stating:

“ We believe the inspectors discovered an error, and were desirous of correcting it; but we believe the canvassing board is powerless to receive oral statements in relation thereto.”

The report further stated that, as the result of their investigation, upon opening the ballot-box, and tabulating the vote, the total vote cast for relator was 352, and the vote cast for Deimel was 168. This report the board of canvassers refused to adopt, and proceeded to canvass the vote as reported in the second or substituted return. The relator’s petition is accompanied by the affidavits of two of the inspectors of election, each stating, in effect, that they made no investigation before signing the new or amended return, and stating their present opinion that the original return made by the inspectors is the correct one.

The tally-sheets have been produced, and it is claimed by the respondent that they show the substantial accuracy of the second return. It is claimed that it is shown by these tally-sheets that 111 votes were improperly deducted from the aggregate of 'the votes cast for Deimel. The tally-sheets show that credits were given, presumably for votes received, and the candidate is also in one column debited with a considerable number of votes, but for what reason is not altogether clear. The relator is also debited with votes on the same sheets. The method adopted was confusing, well calculated to result in mistakes similar to those claimed to be shown in this ease, and not in harmony with the method prescribed by section 36, Act No. 190, Laws of 1891.

We are not able to say, from the tally-sheet itself, that the second return is correct. Enough does appear, however, to indicate that there was an error in the original returns, and, in our judgment, it will be the plain duty of the common council, on the request of either party, to order a recount of the ballots, and to seat the person having the highest number of votes in the ward; and we cannot assume that there will be any disposition on the part of the council to avoid its duty.

We are all satisfied, however, that the canvassing board had no right to accept or act upon the second return of the inspectors; that such second return was a nullity. When the inspectors had completed their count, and executed and delivered the returns, their legal powers ended, and any attempt on the part of the inspectors to change or modify such original returns in any particular involving any other than a mere clerical duty was clearly beyond their powers. Local Acts of 1887, p. 911; Laws of 1891, p. 269; Keeler v. Robertson, 27 Mich. 116. It is not necessary to go to the length of holding that a clerical error which is patent upon the face of the papers may not be corrected by the board of inspectors after the returns have been made up and signed; but that question is not now before us.

It is urged that, even if the board exceeded its authority, the Court should not interpose by mandamus, and compel a re-canvass of the votes, but should leave the relator to his remedy by a contest before the council. We cannot accede to this’ view. Such remedy could not precede the organization of the common council, and is manifestly inadequate. If the remedy by mandamus is not open in such a case, it follows that canvassing boards have the power, wholly to thwart the expressed will of the people, if the usurpation of authority by the board be general; and while, in the present case, nothing, appears which would justify us in inferring that any but honorable motives actuated the respondent, yet we cannot establish a rule which would make fraud on the part of such boards impossible of direct redress. The case of Sherburne v. Horn, 45 Mich. 160, cited by respondent’s counsel, does not, we think, conflict with the views herein expressed. It was said in that case:

“Were it clear that this matter could be disposed of from an inspection .of the returns, we should be disposed ■•to grant the order.”

And in a later case of Coll v. Board of Canvassers, 83 Mich. 367, the remedy by mandamus was given in a case precisely analogous to- the present.

The relator is entitled to the relief prayed.

The other Justices concurred.