Keith v. Wendt

Montgomery, J.

This is certiorari to review the decision of the circuit judge made on an application for mandamus to require the respondents, who constitute the common council of the village of Fairview, to declare the relators, who were candidates for village offices, elected to the various offices for which they were candidates.

The petition sets out that the relators were, according to the declaration made on election day, elected; that, after such declaration was made, the ballot box was not kept in the manner required by statute; that the defeated candidates had applied for a recount of the ballots; and that such recount was not authorized, for the reason that the requirements of the statute as to keeping the ballot box and preserving the integrity of the ballots had not been observed.

The circuit judge did not make a positive order for the issue of certificates, but did direct that the board, before proceeding to a recount, should make a preliminary examination of the ballot box and determine whether it had been locked as provided by law, and whether it was sealed with the election seal of the village as required by law. The court further directed that, if the respondents should find that the requirements of .the law had not been observed, the respondents should proceed to make the declaration of relators’ election. The court further directed that respondents should refrain from opening the ballot box mentioned, until the further order of the court. Borne criticism is made of the form of the order, and particularly of the last clause.

The order staying action is in form unusual, but, as we read the record, there seems little room for controversy as to the main facts. The order might therefore have been broader in the first instance, if the rule contended for by the relators be applied. That contention, briefly stated, is that a recount can be had, under 1 Comp. Laws, § 3725, only in cases when the recount board can find, from an inspection of the ballot box, that the statutory requirements for the preservation of the ballots as cast have been observed. We held, in May v. Board of Canvassers of Wayne Co., 94 Mich. 511, that, where it claimed that the ballot box had been tampered with, it was the duty of the board to cause the box to be brought before it and make an investigation. It was also said that such investigation would be confined to an inspection of the box itself. It was not determined in terms that the board must, as a prerequisite to a recount, find that the box had been sealed as the statute requires; but we think such a view was foreshadowed. Further consideration has strengthened our belief that there can be no certainty in proceedings under this statute, if boards are permitted to set up standards of their own in regard to the steps necessary for the preservation of the ballots cast. The test must be this: Have the ballots been preserved as the law .directs? See Andrews v. Otsego Probate Judge, 74 Mich. 284.

It is true that, in quo warranto proceedings, the law as to preservation of ballots is held so. far directory that it becomes a question for a jury as to whether the ballots not cared for strictly as the law directs are in fact the ones cast at the election. People v. Sackett, 14 Mich. 320. In such case, however, there is an opportunity afforded for a judicial determination of the facts. The statute in question provides no machinery for a trial of disputed questions of fact, and such an important judicial power cannot be implied, if, indeed, it were competent to bestow it upon such a tribunal.

As the order made was less broad than the facts authorized, the writ of certiorari will be quashed, with costs.

Carpenter, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.