Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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the board of supervisors of the county, that the appellant,
William Snow, received threehundred and twenty-four, and
the respondent, B. F. Reynolds, three hundred and twenty,
three, votes. To the former the board awarded the certifi-
FACT8. cate of election and the office in dispute. The lat-

ter contested his right thereto, and prevailed in the contest.
From that judgment Snow appealed. The court, upon a re-
count of the ballots, discovered that the contestant's exhibit

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number eight was one having the name of William Snow
printed on it, and that of the ofl&ce for which he was a can-
didate, but the paper on which it was printed was, when
voted, only about eight and one half inches in length, and did
not, in that and some other minor respects, conform to sec-
tion 1191 of the political code, and ought not to be counted
for Snow, as it had been. This conclusion §[ the court was

That tribunal substantially found, also, that an election
board had counted for Snow two ballots called plaintiff's ex-
hibits two and three ; that on them, and in the same line, were
printed the following words and figures, viz., " 23. Super-
visor District No. i, B. F. Reynolds." That the words
" Supervisor District No. i, B. F. Reynolds," had been dis-
tinctly and completely erased by several lead-pencil marks
being drawn completely through said words, and each of
them, and that upon one of said ballots had been written the
words •* Wm. Snow," and upon the other the word " Snow,"
and that these words were written opposite said figures 23,
line and erasure.

That the words erased were still discernible and distin-
guisbable, and that the voter intended by the erasure to
strike from the ballots, and each of them, the name of the
office of supervisor of said county, in and for said district,
and that no such office remained designated upon said bal-
lots, and that neither the board of election nor the court
could ascertain that the voters intended to vote for said
" Snow," and " Wm. Snow," respectively, for said office, and
that it was not the intention of said voters to vote for any
person for said office.

To this finding, upon a thorough inspection of those bal-
lots, we cannot agree. In a case where there was fwdino re
a conffict in the evidence, in the sense that wit- SS^t ^^ "^"
nesses in the presence of the court had sworn contrary to
each other, as to facts, we should not feel warranted in enter-
ing our dissent ; but where, as in this case, the ballots them-
selves were, on that point, the only evidence before the court,
and as photographic copies of them are before us, it is clear
that there was no such conflict in the evidence as should pre-
vent us from exercising a judgment contrary to that of the
learned judge below. The reason why a court of appeal

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declines, ordinarily, to interfere upon a conflict of evidence,
is because the trial court has an advantage over the former,
in that it can both hear the witness and observe his deport-
ment when before it, and delivering his testimony.

In the present instance the reason fails, and with it the rule
of action.

The persons writing " Snow/* and " Wm. Snow," on ex-
hibits two and three, intended to vote for William Snow for
supervisor of district No. i, Stanislaus county, and the board
of election were right when they counted those ballots for
him for said office. It became plain from an inspection of
another of the ballots, by the court, that the board of election
had erroneously counted for Reynolds one ballot, which was
on its face unmistakably cast for Snow, and thereupon it was
properly counted for Snow. The action of that tribunal, in
taking from Snow a vote, upon evidence showing that Jarvis
Whitehead, not being a legal voter, had voted for him in su-
pervisor district No. i, Stanislaus county, will not be re-
viewed, as the evidence was conflicting, in the proper sense
of that term.

The court found further that B. F. Reynolds received for
the office in dispute three hundred and twenty-two, and Wil-
liam Snow three hundred and twenty-one, legal votes.

From the foregoing, it appears that the finding should have
been that B. F. Reynolds received three hundred and twenty-
two, and Wm. Snow three hundred and twenty-three votes
for the same.

The judgment should be reversed and cause remanded.

Searls, C, and Belcher, C. C,, concurred.

By the Court. — For the reasons given in the foregoing
opinion, the judgment is reversed and cause remanded.

Regulation by Statute of the Size and Form of Ballots.— Sec-
tion 1191 of the Political Code of California, which provides for the size,
shape, and manner of printing ballots, etc., and that no ticket shall be
used at any election that does not conform to such statutory requirements,
and section 1208, which provides that any ballot which does not conform
to the requirements of section 1191 must, with all its contents, be re-
jected, were construed in the case of Kirk 7/. Rhodes, 46 Cal. 398.

In that case it was held that as to things over which the voters could
have no control, such as the precise kind of paper on which the ballot was
printed, and the exact mode of spacing and printing required by statute.

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and the exact size of the ballot, the statute was merely dirtctory, and that
a ballot cast by an elector in good faith, but not complying exactly with
the statutory requirements as to matters over which the elector had no
control, and where the defect in the ballot could not be detected by ordi-
nary observation, should not be rejected. But that as to matters over
which the elector had control the statute was mandatory, and that failure
to comply with the statute rendered the ballot void. Thus the statute
providing that ballots must not be so marked as to be capable of identifi-
cation, if a ballot is so marked it should be rejected. Under this deci-
sion, if the ballot varies from the statutory requirement as to size in a small
degree only it should not be rejected. But if the variation is so large as
to be readily appreciable, the ballot, it would seem, should be rejected.
In the principal case the ballot was only eight and one half inches long^
the statutory requirement being twelve inches, or within half an inch of
twelve inches, and it would seem that the variation was large enough to
bring the case within the principle last laid down.

Statutes Prohibiting any Mark or Device on Ballots. — It is
held in Mississippi that a statute prohibiting any mark or device on bal-
lots by which one ballot can be told from another, shall render the ballot
void, rendered void a ballot containing distinguishing marks on its face
which were not visible when the ballot was folded. The court say : " The
legislature was trying to prevent multitudes from ' being voted,* and being
guided by a mere device or mark by which they should distinguish the
ballots they were to use in the process, without a knowledge of the names
of the persons for whom their ballots were being cast." Oglesby v. Lig-
man, 58 Miss. 502, printers* dashes were held marks or devices within the
statute, and to render ballots void. In Steele v, Calhoun, 61 Miss. 556, a
mere dotted line across the face of the ticket was held a mark or device.

The laws of the State of Maine make certain requirements as to ballots,
and require the officers presiding over the election to reject such ballots
as do not conform to the requirements ; but if a ballot that does not con-
form is received it must be counted. Revised Statutes of Maine, 1883,
chapter 4, section 29, Answer to question nine by Governor Garcelon, 70
Me. 566.

9 Cor. Cas.— 2

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Board of Councilmen of the City of Detroit.

{Advance Case, Michigan. October 14. 1885.)

A statute requiring the common council of a city to appoint a Board of
Commissioners, who are in turn to appoint for each election district in the
city local registration boards, to be composed of members of the two
leading political parties is unconstitutional, because (i) it removes the ap-
pointment of local registration boards from both the people and their rep-
resentatives, the common council, and delegates it to a body of commis-
sioners who are in no proper sense representatives of the people, and be-
cause (2) it makes political opinions and membership in politieal parties
the test of the right to hold certain offices, and renders ineligible to such
offices persons who are members of other than the two leading parties.


Campbell, J. — The attorney general applies for a mandamus
Facts. to compcl the respondents to take action upon certain
nominations made by the mayor of Detroit of four persons,
two being Republicans and two being Democrats, to act as a
board of commissioners of registration and of election for
the city of Detroit Respondents refused to consider the
nominations because they regarded the statute which pro-
vides for such board as unconstitutional and invalid. To an
order to show cause they interpose that ground of defense.
No other question is of much importance in the case. The
necessity of an immediate decision, in order to allow time for
the action of the city authorities in season for the coming
election, made it impossible for the court to do more than an-
nounce its determination, on rendering judgment in favor of
respondents, as any oral statement in brief form of the
grounds of their action would have been liable to some mis-
apprehension. It was therefore thought best that the mem-
bers of the court should express their views more formally in
writing. The statute in question purports to amend chapter
2 and some sections of chapter 3 of the charter of Detroit, as
revised in 1883. Chapter 2, which refers to the registration
of voters, is entirely superseded by the present act, as is also
so much of chapter 3 as provided for the choice of inspectors

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of election. The new statute undertakes to provide a board
of commissioners to appoint ward registers and inspectors,
who are to perform the duties formerly imposed on the boards
made up of aldermen and their appointees, and of persons
elected by the voters. The board thus provided for is re-
quired to be composed of four members holding office for
four years, the first board being appointed for one, two, three,
and four years respectively, so that one vacancy shall be filled
each year. They are all to be resident electors of the city,
and two members thereof to be from each of the two leading
p>oIitical parties of the said city. They are required two
weeks before the time fixed by law for the meeting of boards
of registration of voters, to appoint two qualified electors of
each voting district, one fi:'om each of the two leading polit-
ical parties of the said city, to act as registers and form a dis-
trict board of registration. The various district boards sit-
ting together are to constitute a city board of registration.
The board of commissioners are to fill any district vacancies
by persons of the same political party to which the absentee
belongs. The commissioners are also required to appoint for
each voting district two inspectors, one from each of the two
political parties '' represented in the common council of said
city," the electors choosing a third. Vacancies in any board
of inspectors are to be filled by viva voce vote of the electors,
but each vacancy must be filled by a person of the same po-
litical party as the absentee. The commissioners also appoint
the various clerks of election, but have no immediate part in
the work of registration by action or supervision.

The statute makes a number of new provisions upon the
subject of registration and election, which were more or
less discussed on the argument, but which would only be im-
portant if the law were not held to be entirely invalid, as we
deem it to be. These several provisions will not, therefore,
be dwelt upon. The invalidity of the statute was chiefly
based on the argument upon the illegality of creating a board
with such powers as those conferred by the statute, and re-
quired to be composed of equal numbers of two political par-
ties appointed as such members, and ineligible without such
party connection. Relator insists that the legislature, under
its power to pass laws to preserve the purity of elections and
guard against abuses of the elective franchise, has discretion-

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ary power over the metheds, and that, even if the partisan
disqualification is improper, the court may treat it as not es-
sential, and sustain the commission by allowing the selection
of its members without any such test. Neither of these
grounds is tenable, in our view of the Constitution,

In order to appreciate the bearing of the considerations pre-
GKNERAL ELB<> sciited ou thc case, it will be necessary to make some
TivE 8T8TBM. refereucc to the general elective system of the consti-
tution itself. It is needless to explain that under that system the
whole scheme of government, in every department, depends
upon the action of the qualified voters in their electoral dis-
districts. All male citizens of lawful age, and some whose
United States citizenship is incomplete, are entitled after a
certain term of residence to vote in the townships or wards
in which they reside. Every vote, for any purpose whatever,
is required to be cast in such township or ward. The only
exception is in case of soldiers in the field during the war.
All legislation imposing restraint or conditions upon voting
must conform to the other clauses and provisions of the con-
stitution. No part of that instrument can be allowed to over-
ride or destroy any other part. It is also well settled that
our Sta.e polity recognizes and perpetuates local government
through various classes of municipal bodies, whose essential
character must be respected, as fixed by usage and recogni-
tion when the constitution was adopted ; and any legislation
for any purpose which disregards any fundamental and essen-
tial requisites of such bodies has always been regarded as in-
valid and unconstitutional. There is nothing in the constitu.
tion which permits the legislature, under the desire to purify
elections, to impose any conditions which will destroy or se-
riously impede the enjoyment of the elective franchise. And
as the right of voting is the same everywhere, it is obvious
that the conditions regulating the manner of exercising it
must be the same in substance everywhere. The liiachinery
of the government differs in its details in cities, villages and
townships, and of course in methods and officers to adminis-
ter the election laws. But it cannot be lawful to create sub-
stantial or serious differences in the fundamental rights of
citizens of different localities in the exercise of their voting

It is also a most important principle under our constitu-

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tional system that no one shall be affected in any of his legal
and political rights by reason of his opinions on political sub-
jects or other matters of individual conscience. The political
right to freedom of belief and expression is asserted in the
most distinct way, and applies to every privilege which the
constitution confers. No one has ever supposed that any new
condition could be added to those which the constitution has
imposed on the right of suffrage, beyond such as are neces-
sary to guard ag^nst double voting, or to prevent its exer-
cise by those who are not legal voters. The only legitimate
object of registration laws is to secure a correct list of actu-
ally qualified voters. Any attempt to inquire into the senti-
ments of the voters is not only an abuse, but one which it is
the chief purpose of the ballot system to prevent. The bal-
lot is a constitutional method which cannot be changed, and
its perpetuation means the security to vote without any in-
quisition into the voter's opinions of men or measures ; and it
would be entirely meaningless if the voter's choice of candi-
dates for any office must be made from any particular party
or number of parties. But the constitution has made this
more specific, (although this was hardly necessary,) by pro-
viding, after giving the form of an official oath, that "no
other oath, declaration, or test shall be required as a qualifica-
tion for any office or public trust."

It is manifest that any important function of government
comes under one or the other of these heads of
** office *' or " public trust." The board of regis- SS'XlJSS??^

, , 11. r *^^" ^H* ''■ST

tration commissioners consists under this statute of g^^^^Sc^
persons holding permanent offices. The district
registers, clerk, and inspectors perform functions connected
with the most vital and important action of citizens in their
capacity as choosers of the officers of government. The
constitutional rule covers them all, literally as well as im-

It was urged on the argument that if the term " test " can be
held applicable to inquiries into party affiliation, it is equally
applicable to those other qualifications often required for public
service, such as education, scientific acquirements in survey-
ors and other specialists, legal knowledge in law officers, and
the like. But this is not so. Not only is it evident from the
other provisions in this clause that all the exemptions referred

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to are such as would be applicable in all sorts of offices, but
the use of the word " test '* is especially significant because its
recognized legal meaning in our constitution is derived from
the English test acts, all of which related to matters of
opinion, and most of them to religious opinion. Such has
been the general understanding of the framers of constitu-
tions. If this were not so, and if the power of the legislature
in imposing conditions of office is at the same time only
restrained by express clauses applying in terms to officers
and to no one else, it would not be difficult for any dominant
party controlling the legislature to perpetuate its power until
overthrown by revolution. But such discriminations are as
repugnant to the rights of voters in selecting as to the rights
of those chosen in assuming office, and this clause is but an
additional assertion of a principle found in other parts of the
constitution, expressed or clearly implied. In the case of
People V. Hurlbut, 24 Mich. 44, it was not disputed by any of
the judges who referred to the matter that it would not be
lawful to confine the choice of officers to particular parties,
although two of the judges thought that the provision in that
particular case was capable of being eliminated from the
statute. And it is claimed, in the present case, that the pres-
ent law is declared and intended to be non-partisan, and that
the board may be chosen without reference to this restriction
of party membership.

It is altogether likely that the framers of the law were of
opinion that the evils of partisan action, and the temptation
to carry it to abusive extremes, would be lessened by requir-
ing that one party should not monopolize the offices, but that
two should share them. No one can doubt the advantage of
impartiality in public action. But parties, however powerful
and unavoidable they may be, and however inseperable from
popular government, are not and cannot be recognized as
having any legal authority as such. The law cannot regulate
or fix their numbers, or compel or encourage adherence to
them. Many good citizens form no permanent party ties,
and when elections are close the effort of each party is to de-
tach votes from the friends of the other. Where there are
two parties larger than any other, the success of either is very
often gained by coalition with a third one. In local matters
party allegiance is not uncommonly laid aside for the time

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being, so that it cannot be said that any party is represented
in the election. However well meant such a statute as that
before us may be, it distinctly makes party adhesion a condi-
tion of office ; and not only so, but it puts all but the two fa-
vored parties beyond the possibility of representation, if the
law is obeyed.

It is equally clear that this party representation is the es-
sential purpose of the law, and that the other changes are
merely subsidiary. There are some changes in detail, but
the main purpose cannot be mistaken. The partisan qualifica-
tions are made emphatic in regard to all the offices. It is im-
possible for any canc^id person to read the act and believe
that the real legislative design can be carried out. By leav-
ing the councilmen and mayor at liberty to choose commis-
sioners from a single party, or for the commissioners to ap-
point registers and inspectors, without distinction of party, at
their pleasure, and it would need no great sagacity to see
that if such unlimited power were vested in a body made up
as this body might then be constituted, all of the old evils
would remain, and would be made worse by the absence of
any responsibility to the voters of the precincts.

In my judgment the creation of a board with such powers
as are given to this board is quite as serious an ?"S2h^otS!
infringement of the constitution as the partisan to^c«»«w«8wj«
clauses, and much more dangerous. This board is made by
the statute the repository of some of the most important
powers of government. It has the entire control, directly or
indirectly, of the elections on which all the departments of
government depend. It has the appointment of officers who
can deprive any man of his vote at any election, if they see
fit to do so, without any adequate means of redress to save it.
While it is unavoidable that a voter's rights at election must,
in case of dispute, be disposed of summarily, it is all the more
necessary that the tribunal which decides on so sacred a right
should be made up in harmony with representative and popu-
lar institutions.

While boards are not uncommonly created for the more
convenient management of the business interests of the mu-
nicipalities, it is a principle universally settled in our system
that all officers and functionaries exercising power of govern-
ment and control over political action must derive their

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power and oflBce either from the people directly, or from the
agents or representatives of the people. The officers of towns
and cities have always been so created. The discretion of a
political body or functionary cannot be delegated indefinitely.
Here the choice of ward officers is made, not by the people
of the ward, nor by the chosen officers of the city, but by
persons who are themselves appointees of a part of the city
government. No doubt there are many ministerial powers
which can be deputized. But a governing body cannot
deputize others to perform the governing functions, and the
legislature cannot authorize it to do so without destroying the
character of the corporation which is required to be preserved.

It has always been held in this State that the municipalities
which can be created by our legislature must be such in sub-
stantial character as they have heen heretofore known. Up
to this time, and ever since elections were first held in
Michigan, they have been not only localized in some
municipal division, but regarded as municipal action, and
supervised and managed by municipal officers, either directly
elected, or else appointed by those who have been elected.
Such a board as this, which is in no sense a mere agency of
the city, is foreign to our system. If it can be created in a
city, it can just as well be created in a county, or for the
State. When the election ceases to be a municipal procedure,
the whole foundation of municipal government drops out.
And a municipality which is not managed by its own officers
is not such a one as our constitution recognizes.

As the defects which have led to a refusal of a mandamus
in this case invalidate the whole law, there is no occasion to
consider anything else. In my opinion either of them is

Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 3 of 73)