The Yale expositor., 1909-11-12
Petition for Mandamus Denied.
tPort Huron paIly Times, NoY. 8, leOel

port Huron Daily Times. Nov. 3, 1907
Judge Erskine of Mt. Clemens this
morning rendered an opinion in the
mandamus proceedings brought by
Christian Kern against the board of
supervisors of st. Clair county to COM
pei them to investigate the petitions
presented on the local option question.
Judge Erskine says
The application for mandamus, will
he denied for the following reasons:
First-It was the intention of the
Legislature that the board of super.
yisOrs should, upon a certain showing,
submit the question to the electors,
whether or not prohibitory law should
go into effect. 1t was not the intention
in my opinion, to authorize the board
to go beyond the face of the petitions
and cOntrovert the affidavits accom-
panying them, as to the posting of
notices and the fact that the petitioners
were qualified electors. No provision
was made by the Legislature for no.
tice of hearing and no machinery was
provided for the determination of these
questions, such as the authority to
summon and swear witnesses, the per-
petuation of testimony, etc. This
would involve the exercise of judicial
power, and under the constitution, the
Legislature could not confer such au-
thority upon the board.
The local option statutes generally
provide that, upon the performance
of certain preliminary conditions, usu-
ally including the filing of sufficient
petition, an order for local option
election shall be made by designated
authority, commonly local court, but
in some states the county commissions
ers or board of supervisors. AS rule
this authority has no discretion in the
matter, beyond determination of the
legal sufliciency of the petition"
% Cyc. 50 Black, Intoxicating Ii
quors, Sec. 80.
The fact that notices may have been
torn down, or mutilated or become IL
legible by reason of the elements would
not affect the validity Of the proceed
ings.
Nelson VS.. State (Tex.) 70 5. w. SOP.
Second While the petition for man.
damus alleges, the answer denies that
the petitions were not in fact signed
by the requisite number of qualified
electors. The same is true of the al
legation of irregularity of the posting
of notices. No issue was framed, and
the answer must be taken as true. We
then have this situation: the court is
asked to compel the board of super
visors to investigate, hear proofs and
determine fact, which is conceded
upon the record to be against the claim
of relator. As it would be presumed
that the investigation of the board
would correctly arrive at the facts, a
mandamus would be useless proceed
ing.
Third-This writ being one not of
strict right, should be granted only
when justice requires.
1t appears that the petitions are
signed by an excess of some 400 beyond
the requisite one-third. Petitioners
showing does not satisfy the conrt that
he is bona fide prepared with proofs to
show that all of these 400 are not quail
fed electors. The case is one where
the relator should not confine himself
to generalities, but should be more ex
plicit in his allegations as to the pro-
posed proofs of disqualification.
The writ is therefore denied.
Dated, Nov. 8. 1909.
BYRON II. ERSKINE,
Circuit Judge of the Sixteenth Judicial
Circuit, acting in the Thirty first
Circuit.
J. b. McIlwain, attorney for Mr..
Kern, speaking of the decision, said to
The Times: ave will start at work
this afternoon and will take the mat
ter 10 the supreme court at once. In
my opinion Judge Erskine's opinion
will be reversed"