The Detroit times. [volume] (Detroit, Mich.) 1903-1920, 1908-09-29


doubted In at least Oliver and Grant
townships. and Is more than likely In
many others, say those who are IN
position TO know.
AS far as the brief investigation pro-
ceeded, II was conclusively shown tnat
primary election insptcors were lax
in their observance OF the require
ments OF the primary law. but all the
canvassing board can do, under yes
terdays decision, is TO recount the
ballots without withdrawing any.
Written BY ostrander.
The opinion OF the court was written
by Judge Ostrander and goes exhaus-
tiyely into the law and the facts.
The conclusion OF the court Is that
writ of mandamus should issue 10
compel the canvassers TO promptly
proceed 10 recount the votes as Pc
titioned for, and that a writ OF pro
hibition should issue restraining TEE
canyassers from going into the en-
rollment or Withdrawing ballots from
the boxes. as the board did In recount
ing the vote OF Oliver township, HUI
ron county.
I'VE are agreed" says the opinion
char while the state board OF can
vassers Is a constitutional body, II Is
performing in this instance statutory
duties. it's authority in the premises
being derived wholly from the legs
lature.
III a particular method OF perform
ance is pointed out by the legislature
to reach a result which is also Gear
" indicated. that method shouio De
pursued. especially in cases where per
suing different method would OF
might. involve a different result or 40
result at all. The exercise OF certain
powers having been provided for, the
exercise of others not incidental OF
necessary to the exercise Of those ex'
pressly given, Is forbidden
The court says 1t Is clearly stated
that fraud or error by the board OF
inspectors only In the court or In the
count or In the return may be invesu-
gated
.'What is provided for Ia recount
another count. Of the ballots, the
court explains.
"It seems to be conceded that
neither relator occupies the position
de facto, or de lure. OF public oni'
Ger and that an inquiry owLor mere,
after. in the nature Of quo warranto
proceedings cannot be Instituted by a
candidate. In short. the finality OF the
determination OF the respondent board
IA admitted.
I'VE do not find ambiguity in the
language OF the act. or any conhict
between the general purpose of the
legislation and the provision for a re-
count. We find provision for re-
count OF the votes, for doing again
what the election inspectors have
done. This conclusion Is support
ed by a consideration OF the other
provisions OF the law. The liking OF
dates for enrolment and for the PR
mary election, with reference to the
constitutional general election day, Is
indicative OF the legislative concep-
ton of the powers and duties Of the
respondent. But beyond this. the oh.
feet OF the legislation which Is to SO.
cure direct voting for candidates for
public ONCE. could not be In fact &C.
complished II the inquiry proposed
could be enacted upon. Upon well set
tied principles courts will decline 70
nullify a statute by construction un.
less the duty so to do is clear.
THE court Is not insensible to the
argument that unless the state board
Of canvassers exercises powers be-
yond those impaired by the words
employed In the statute. defeated
candidate may have no redress, a sue
cessfsil candidate may profit by illegal
acts OF voters and inspectors and the
will of the party electors. legally ex-
pressed. may be, legally, reversed.
Every experiment In popular govern.
ment has It's attendant dangers.
"No individual or public right would
have been infringed II the legislature
had made no provision for an appeal
from the decision Of the various boards
of election inspectors.
Powers Not Judicial.
Holding as we do. that the respon-
dent board may lawfully do no more
than recount the votes and declare
the result In accordance with such
count, IL follows, that the powers con-
ferred by the act are ministerial AMI
not judicial. II remains to apply the
ruling TO the facts. II Is q mistake TO
suppose that the inspectors of cleo
ton at q general or primary election
may look beyond the poll lists and the
ballots in the proceeding 10 count the
votes.
There Is no provision. Of the law
TO which we have been referred.
which permits the drawing out of bal.
lots except when II appears that they
exceed the number OF ballots cast IA
shown by the poll lists. The enroll
ment book IL To the primary election
what the registration Is TO the general
election. 1t Is supposed that no man
will vote at either election unless
there is found, or is presently made.
record evidence OF his right TO vote.
Such a. record cannot be reviewed or
changed for the purpose OF affecting
the count of the votes actually Cast
II was held In May vs.. board OF can.
vassers. 81 Michigan. sos. I'm consider.
ing action OF a canvasslng board. nm.
der a status the provisions OF which
we're broader than those now under
consideration, that the board had no
power TO compare the registration lists
with poll lists for the purpose OF de.
termining whether the votes of non.
registered persons had been received.
We are OF the opinion that the re-.
spondent acted beyond It's powers In a
similar use OF the enrolment list and