The Detroit times. [volume] (Detroit, Mich.) 1903-1920, 1908-09-29
C0NsTRUCT|0NMAY
MAKE PRIMARY
LAW A FENCE
FRAUD EVIDENTLY CAN HIDE BE-
HIND IT, IN VIOLATION OF
MEASURES sPiRIT-ExcERPTs
FROM OPINION.


LANSING, Mich. Sept 2s.-Not
withstanding that the primary law
was framed for the express purpose oil
providing for honest nominations, II
is evident. from the decision OF the
supreme court yesterday that a con
struction OF the measure can make II
q fence behind which fraud can hide
with impunity. For by the decision
the board OF state canvassers Is not
allowed TO investigate charges OF fraud
and corruption by looking into the en-
rollment. And II Is not within the
boards province to throw out AM
votes. dH
Illegal enrolment Is said to be VI
doubted In at least oliver and Grams
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. 1t was conclusivels shown that
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
terday's 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
lively into the law and the facts.
The conclusion OF the court Is that
a writ of mandamus should issue to
compel the canvassers TO promptly
proceed to recount the votes as Pc
titioned for, and that writ OF pro
hibition should issue restraining tie
canvassers 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.
"that while the state board or can
vassers Is a constitutions. body, IT Is
performing in this instance statutory
duties, it's authority in the premises
being derived wholly from the legis'
lature.
III a particular method OF perform
ance is pointed out by The legislature
TO reach a result which Is also clear
ly indicated, that method should ne
pursued, especially in cases where per-
suIng a different method would. or
YniKIt. involve a different result or no
result at ALL The exercise Of certain
powers having been provided TOT. the
exercise OF others not incidental Oh
necessary to the exercise OF those .ex'
pressly given, Is forbidden.
The court says 1t Is clearly stated
that fraud or error by the -boara.o Oh
inspectors only in the court or In the
count or In the return may be investi'
gated.
what is provided for Is a recount,
another count, OF the ballots the
court explains.
eft seems to be conceded that
neither relator occupies the position
de facto. or de jure. OF public onl'
Ger and that an inquiry now, or here
after. in the nature of quo warranto
proceedings cannot be instituted by a
candidate. In short. the finality or the
determination OF the respondent board
is admitted.
I'VE do not find ambiguity In the
language of the act. or any connlct
between ire general purpose OF the
legislation and the provision for re-
count. We fnd a provision for re-
count OF the votes. for doing again
what the election inspectors have
done done. This conclusion Is sup
ported by a consideration OF the other
provisions of the law. The fixing OF
dates for enrolment and for the pri'
mary election. with reference to the
constitutional general election day, IL
indicative OF the legislative concer
ton OF the powers and duties OF the
RESPONDENT. But beyond this, the oh
tect of the legislation which Is to Sc
cure direct voting for candidates for
public Dice. could not be in fact &C
omplished II the inquiry proposed
could be enacted upon. Upon well set
fled principles courts will decline &c
nulIIfy 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. sue
cessful candidate may profit by illega
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 its attendant dangers.
mo individual or public right would
have been infringed II the Legislature
had made no provision for an appea
from the decision of the various board:
OF election inspectors.
Powers Not judicial.
Holding as we do. that the respon
dent board may lawfully do no NOR,
than recount the votes and declare
the result In accordance with sucf
count, It follows, that the powers con
ferred my the act are ministerial ant
not judicial. II remains to apply the
ruling to the facts. II Is a mistake Il
suppose that the inspectors of cleo
hon at a general or primary election
may look beyond the poll lists and tn,
ballots In the proceeding TO count tn,
votes.
There Is no provision OF the Law
10 which we have been referred
which permits the drawing out OF bal
lots except when II appears that the,
exceed the number OF ballots cast a
shown by the poll lists. vhe enroll
msnt book is to the primary election
What the registration is to the genera
election. II is supposed that no maj
win vote at either election unles
here Is found, or Is presently made
record evidence Of his right to vote
such q record cannot be reviewed o
,hanged for the purpose OF affectin
be count Of the votes actually cas-,
{ was held In May vs. board OF car
Fassers, "a Michigan. sos, In consider