Alma record. (Alma, Mich.) 1878-1928, 1910-02-03


then turn this original petition over
10 someone at the county seat 10 be
filed at the end OF the ten days and
absent himself from the township, or
even if he remained his neighbors
would not then have the opportunity to
examine the original petition men
toned above. and the petitions when
so filed, might upon their face show
greater number of apparently genu-
inc signatures or bona hde resident
electors than they would if the affi-
ants were required to wait the entire
ten days before making the affidavit.
In cities where the contest some
times wakes warm and fraud Is often
resorted TO, names might be forged
upon the petitions by someone other
than the person whose name was
signed, and other than the solicitor,
and with the probing that usually
happens in those cases, the fact OF
these false signatures would usually
be brought to light and the solicitor
being honest would usually erase the
forged names before making the afr
davit for fear OF mourning the penal
ties of prejury if he did not, but if he
could make the affidavit on the sec
ond day after posting or on any
other day before the time of the ac-
tual presentation TO the county clerk,
the petitions upon their face would
carry these forged signatures, and
the board might often be mislcd.
1t must be remembered that the
statute says that the board shall
make this determination from the
face OF the petition think this
means exactly what it says and that
the board have no power to go back
of the returns and take evidence after
the petitions are once filed to ascer-
tain the genuineness OF the sigma
lures. 1t was so held by Circuit
Judge Erskine in the St. Clair case
now pending in the Supreme Court
in an opinion which commends itself
to my judgment. If then no names
can be erased after the filing with
the clerk OF the original petitions, or
at least none unless application had
been made therefor before the filing
of said petitions, then it follows that
it is important that the affidavitS not
only of the posting but of the genu-
incness OF the signatures and the
residences OF the electors shall not
be made until this full ten days eX-
pires. so that when the petitions are
presented 10 the board. they show
upon their face true and lawful sig.
natures only, and so that the board
acting within the statute, shall make
the determination required by law.
The affidavits in this case were not
so made, and in my Judgment this
provision of the statute is mandatory
and must be strictly followed, and it
not having been followed in this
case. the board did not acquire any
jurisdiction to act. and even if it
should issue the writ of mandamus
to compel the board to act upon peti
tons which | honestly think are not
properly authenticated under the
statute and which do not confer jur-
iSdiction upon the board to do the
thing which the writ of mandamus.
if issued. would under severe penalty
compel them TO do.
There may he another reason also
why the legislature required the aft
ant to state that the copies of petit
tons had been posted for at least
ten days While ordinarily the law
presumes that if state OF facts
once exists it will continue to exist
until the contrary is shown, yet this
a rule OF evidence only and does
not apply where something is re-
quired TO be done as a jurisdctional
prerequisite to the action Of some
court or board The making of these
affidavits and the presenting of them
at the same time that the petition is
presented to the country clerk are es-
sential preliminary steps as much as
the signing of the petitions in order
to give the board jurisdiction to act
and the courts will not indulge in
any presumption that because they
were posted on December 27th they
posted from that time until
January Sth. I'm McIfugh VS.. Butler,
30 Michigan, 1Sj. il was held that an
affidavit of an account made seven
days before the institution of the suit
was not a compliance with the stat
ute in that case and that the affidavit
must be made substantially at the
time of the institution of the suit In
Lumber Company VS. Lyon. 95 Mich
igan. 5s4 held that a Justice acquired
no jurisdiction in an attachment suit
where the affidavits were not filed
and the writ issued on the same day.
Hence the affidavit. made in Deem
Der did not amount to any proof that
the copies of the petition remained
posted at any time after that and up
to January sth. and the board had no
jurisdiction to act unless the copies
had been posted for the last ten days
at least before January sth.
While | think it is settled that il
the posted notice is torn down by
the elements or by others than those