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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fatal.

Champlin and Sherwood, JJ., concurred.

Morse, C. J. — The ostensible primary object of the law
under consideration was to preserve the purity of elections
and throw additional safeguards around the ballot-box. Such
a law should be sustained, unless in plain violation of the
letter or spirit of the constitution. Every good citizen, re-
gardless of political belief or party action, ought to and does
Pacts. dcsirc that the right of suffrage shall be amply pro-

tected against hinderance or obstruction to the legal voter, as



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ATTORNEY-GENERAL V. COUNCILMEN OF DETROIT. 25

well as against the fraudulent exercise of the elective fran-
chise. The security and permanency of good government
also depend upon it We can take judicial knowledge, I
think, that political corruption exists, and that there has been,
and is liable to be, a dishonest depositing and an unfair count-
ing of ballots. There is no doubt but legislation is needed to
protect and purify the exercise of this, one of the highest
privileges of the citizen. The constitutionality of this act,
which is in the form of an amendment to the charter of the
city of Detroit, was attacked upon the argument in this court
upon four grounds, namely : (i). That it is in conflict with
the provision of the constitution that " no law shall embrace
more than one object, which shall be expressed in its title."
(2). That it violates another provision of the constitution, to
wit : " No law shall be revised or altered or amended by ref-
erence to its title only ; but the act revised, and the section or
sections of the act altered or amended, shall be re-enacted and
published at length." (3). The form of registration prescribed
is not in harmony with the constitutional qualifications of
electors in this State. (4). The act is wholly void because
of the political tests or qualifications of the registration and
inspection o£Bcers.

I am not satisfied that the first two objections are tenable.

As to the third objection, while I believe the form pre-
scribed not applicable to our election laws, and one that would
do more harm than good, creating confusion instead of cer-
tainty, and having a tendency to hamper and perhaps to pre-
vent the exercise of the elective privilege by the legal voter
in certain cases, and therefore unconstitutional; yet, under
the rule uniformly applied to statutes, it would not defeat the
operation of the remainder of the law, as I regard the form of
registration rather as an incident to than as the main principle
of the act.

The fourth objection to the law, it seems to me, is fatal.
The act provides in substance that the board of councilmen
of the city, upon the nomination of the mayor, shall p^^^^ member-
appoint a board of commissioners of registration and SJa^^SS^ H
election in and for the city of Detroit, who shall ^"'^^
consist of four resident electors, and whose term of office
shall be four years. This board of commissioners had placed
wholly in their hands the appointment of the district boards



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26 ATTORNEY-GENERAL V. COUNCILMEN OF DETROIT.

of registration in every voting precinct in the city. They
have also the absolute power of appointment of two of the
three election inspectors in every voting district, leaving the
electors the poor privilege of choosing the other upon the
opening of the polls. Besides defining the powers of said
boards of commissioners, registration, and election inspectors,
the law prescribes the following qualifications of these officers
as follows : " First. Said board" (of commissioners) ** shall be
strictly non-partisan in character, two members thereof to be
from each of the two leading political pa'rties in said city.
Second, One of said registrars" (district board of registration)
" to be from each of the two leading political parties in said
city. Third. One inspector" (of elections) * so appointed to
be from each of the two political parties represented in the
common council of said city."

The law also provides that if any vacancy shall occur in the
district registrars or election inspectors, such vacancy shall
be filled from the same political party to which the absentee
belongs. Section i of Article 7 of our constitution prescribes
the qualifications of electors. It contains no. provision for a
registration law ; and such a law can only be sustained and
upheld under Section i of Article 7 of that instrument, which
authorises the legislature to pass laws " to preserve the purity
of elections and guard against abuses of the elective fran-
chise." The legislature is utterly powerless to pass any act
to hinder or abridge, in the exercise of the electoral right, any
person who is an elector under the constitution, except the
manifest intent and operations of the law be to protect the
legal voters from fraud and abuse of the elective franchise.
If a registration law, therefore, is constitutional, it must be so
drawn as by its terms to proscribe no man because of his po-
litical belief ; and the officers whose duty it is to operate the
machinery of registration and election, who sit in judgment
upon the right of citizens to vote, cannot by law be restricted
to any one or two political parties.

We must take judicial knowledge of the current undisputed
history of our State and country, and act upon the assumption
and the fact that there are to-day at least, in the State of
Michigan and in the City of Detroit, four political parties, to
wit. Republican, Democratic, National or Greenback, and
Union or Prohibition. To confine the registration and election



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ATTORNEY-GENERAL y. COUNCILMEN OF DETROIT. 27

boards to men composed wholly of any one, two, or three of
these parties would be a plain violation of the spirit of our
constitution, and have a tendency to hamper and abridge the
elective rights of those belonging to the political party or
parties who, by law, would not and could not have any
representation upon such boards. But such a law is also
in direct conflict with the plain letter of the constitution.
Section i, Article 18, of that instrument, after prescribing the
form of the official oath of the members of the legislature and
all officers, executive and judicial, concludes as follows :
" And no other oath, declaration, or test shall be required as
a qualificatioYi for any office or public trust.**

In my opinion there can be no doubt but this law subjects
the officers of registration and election in Detroit to a polit-
ical test. If the two leading parties in that city be Demo-
cratic and Republican, then any citizen who cannot, by reason
of his political conscience, ally himself with one or the other
of these parties is debarred by law of the right of holding one
of these offices. If the National and Prohibition parties
should be the two leading ones, then the Republican or
Democrat would be ostracized. There can be in a true Re-
publican government no political or religious test in holding
office, the political and religious liberty of the citizen being at
the foundation of Republican institutions. If this law had
provided in express terms that these various boards should be
equally divided between Democrats and Republicans, its re-
pugnance to the constitution would be plainly apparent to all.
As it is, it accomplishes by indirect language the same result

The opinion of Chief Justice Campbell in People v. Hurl-
but, 24 Mich. 90-92, correctly applies the principle that no
person can be prevented from holding office because of his
political opinions.

Suppose the legislature should enact a law that the school
officers of any city .or village in this State should be selected
equally from the members of the two leading churches there-
in, making a religious test, would anyone argue for a moment
that such an act was constitutional ? And certainly the right
of the citizen to his political opinions is and should be as zeal-
ously guarded as his right to his religious belief.

It is urged that the political proscription in this law is less
than actually takes place without it ; that those having the



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28 ATTORNEY-GENERAL V. COUNCILMEN OF DETROIT.

appointing power of registrars and inspectors under the old
law do, in Detroit, as a matter of fact, appoint all these officers
. from one party instead of two, thus precluding still more
citizens from these places. In answer it can be said that this
is an abuse of power not sanctioned by the law, but per-
mitted, if at all, by its silence, while this act before us puts
the seal and stamp of approval upon the very abuse it seeks
to cure, and makes it a requisite for these officers to be par-
tisans of a certain name or designation, thus making this evil
of partisan appointment a permanent feature of our State
polity. For if the legislature has power to require that these
offices shall be filled by members of two parties only, it is
competent to pass a law thas they shall be holden only by the
members of the leading party ; and a partisan majority in the
legislature might fix the political belief of every municipal
officer in the State, taking from the people of the locality the
right tQ have a government of a different political color than
the legislature. The remedy is worse than the disease. It is
not only political oppression, but a deprivation of a local self-
government.

Suppose that in one or more election districts in the city of
Detroit the Nationals and Prohibitionists combined were nu-
merically stronger than the united Republicans and Demo-
crats, though a minority in the whole city. Then, in these
days of party coalition, it might be possible for the Democrats
and Republicans, controlling the boards of registration and
election in the city, and in these wards and districts, to com-
bine against the other two parties in such districts. In such
a case there would be naturally the same incentive to and
opportunity for frauds and abuse as if all the registrars and
inspectors belonged to one party, and it is therefore doubtful
if the present law would in all cases have the effect desired.

Suppose, further, the two leading parties in Detroit to be,
as they actually are, Democratic and Republican. The
plurality of these dominant parties over the third party might
be so small and trifling in the entire city that in two-thirds or
even three-quarters of the wards in the city the third party
might have a plurality of votes over either, and yet have no
representation except one inspector upon any of these boards,
and therefore liable to be subject to the same evils that we
now deplore.



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ATTORNEY-GENERAL V, COUNCILMEN OF DETROIT. 29

Again, the inspectors must be of the same political shade
as the two leading parties in the common council; and it
would not be an unusual thing to have the leading parties in
the city not the same as the leading parties in the common
council.

The argument might be elaborated further, but it is useless*
In any way we turn this law, and apply it to the common
every-day occurrence in political life and action at our elec-
tions, the more clearly does it appear that this act can have
no other effect than a disfranchisement of a large body of the
people from holding these offices, simply because they are
politically for the time being in the minority in the whole
city. And it should be remembered that all are liable to bear
its ostracism. The changes and fluctuations in votes con-
stantly going on often place the majority at the last election
in the minority at the next, and they who wield the club of
power under this law to-day may feel themselves its weight
to-morrow.

I fully agree in the views so ably expressed by Justice
Campbell in the leading opinion filed in this case. The nearer
the oflScers are to the people over whom they have control
the more easily and readily are reached the evils that result
from poUtical corruption, and the more speedy and certain
the cure. The form of our State government presupposes
that the people of each locality, each municipal district or
political unit, are intelligent and virtuous enough to be fully
capable of self-government, and the idea that the further re-
moved the election officers are from the people the less we
encourage fraud and the more nearly we attain virtue at the
ballot-box, is not in harmony with the theory and spirit of our
institutions. It matters not what legislation has heretofore
been adopted in the same road with this law ; it is our duty to
deal with the encroachment brought before us and to
remove it.

The writ of mandamus must be denied.

Party Membership as a Qualification for Office.— In Maryland
it has been decided that a proviso of a statute declaring " that no Black
Republican, or endorser or approver of the Heljjer Book" shall be ap-
pointed to any oflSce under the board is unconstitutional, if it is to be un-
derstood that that class of persons are proscribed on account of their
political or religious opinions, but the court refused to take judicial notice



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30 DUTTON V. VILLAGE OF HANOVER.

of who were meant by the proviso. Mayor, etc.. of Baltimore v. Sute, 1 5
Md. 379.

In Tennessee a statute requiring in cases where the venue had been
changed that it should be changed back on affidavits of three uncon-
ditional Union men was unconstitutional and void. Brown v. Haywood.
4 Heisk, 457.



DUTTEN

V.

Village of Hanover.

(42 Ohio State, 215.)

In Mandamus in the court of common pleas to compel the council of
an incorporated village to order an election on the question of a surrender
of its municipal powers, under the provisions of the Revised Statutes, sec-
tions 1633 to 1647, the issue was whether the requisite number of qualified
petitioners had petitioned the council therefor. Held, that this was an
issue not of right triable by a jury, and either party might appeal from the
judgment of the common pleas thereon.

Upon the presentation of a petition to the council for such an election,
it is the duty of the council, before taking action thereon, to satisfy itself
that it contains the requisite number of qualified petitionera^ and for that
purpose may refer the same to a committee to make the necessary exami-
nation.

While such petition is under consideration, and before action thereon
by the council, signers thereof may withdraw their names from such peti-
tion, and if thereby the number of names is reduced below the requisite
number, it is the duty of the council to refuse to order such election.

Motion for leave to file petition in error to the District
Court of Columbiana county.

This was a petition in the common pleas against the village
council of Hanover, to compel that body to order an election
as required by sections 1633 to 1647 of the Revised Statutes
on the question of the surrender of its municipal powers. It
is alleged that on the 2d of October 1882, fifty-five electors of
said village, which was more than a majority, petitioned the
council to order such election, that this petition was referred
to a committee, who reported the same back at the next regu-
lar meeting, with several names stricken oflF by the petitioners,
at the solicitation of the committee, leaving less than fifty pe-
titioners, and less than a majority of the electors, and there-
upon the council refused to order such election. The prayer



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DUTTON V. VILLAGE OF HANOVER. 31

is for a peremptory mandamus to compel the council to order
such an election.

Issue was joined on the material allegations of the petition,
and a trial had upon evidence. The common pleas adjudged
in favor of said relator, and ordered such election to be held.

The defendant appealed to the district court.

A motion to dismiss the appeal was overruled, and excep-
tion taken.

On a trial the district court found that the number of elec-
tors required by the statute, had signed said petition before
it was presented and referred to the committee, but that
while the matter was in the hands of the committee, a num-
ber of signers, sufficient to reduce the petitioners to less than
the required number, had, with the consent of the committee,
withdrawn their names, so that at the next regular meeting
of the council, when it refused to order the election, there
were a less number of petitioners than required by statute.

There is nothing in the record to impeach the good faith
of the council, or its committee to whom the petition was re-
ferred.

Clarke & McVicker for the motion.

/. W, & H. Morrisoftj contra.

Johnson, C. J. — The Revised Statutes, sections 1633 to
1647, provide the mode by which cities, villages, and hamlets
may surrender their municipal powers. By section 1644, the
number signing a petition for an election to be pacts.

ordered, is prescribed in case of an incorporated village. By
section 1635, it is made the duty of the council, when a peti-
tion is presented for such an election, to order such election,
and fix the time for holding the same.

Two questions are made on this motion for leave to file a
petition in error: ist, was the case one that could be ap-
pealed ; and 2d, did the district court err in upholding the
action of the village council in refusing to order an election ?

1st Was this case one for an appeal ?

The issue made by the pleadings was of mixed law and
fact. While it is the imperative duty of council (section 1635)
to order an election, yet as an essential requisite pbtition must
to this duty, there must be a petition therefor, JoRSicmoKf"
signed hy a sufficient number of electors of the village.



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32 DUTTON V, VILLAGE OF HANOVER.

In this case these petitioners must be electors, and this fact
must be determined by the council. Before the council can
be required to order an election, that fact must be made to
appear. It is a condition precedent to making such orden
On mandamus to compel the council to order an election, the
court must be satisfied that it was the duty of the council to
make the order. The issue was, therefore, as to this fact, was
that a fact triable by a jury, as of right? The court might
order a jury to try it under proper instruction ; but was it
bound to do so ? For the purposes of this case, we assume,
without deciding, that mandamus is the proper proceeding
against the council for refusing the prayer of petitioners.

This proceeding can only be resorted to where there is not
a plain and adequate remedy otherwise provided. Under
our statute, the return to the alternative writ may be contro-
verted. In this case it was controverted, and the question
was, whether there was the required number of qualified
petitioners. To determine this, the court must ascertain the
number of electors in the village, the number of genuine signa-
tures that were electors and the right of signers to withdraw
their names.

To determine these questions in mandamus^ neither party
could demand a jury. Castle v, Lawlor,47 Conn. 342 ; Chum-
asero v. Potts, 2 Montana, 242 ; High on Extra. Rem. § 30 c.

2d. Did the district court err in holding that persons who
signed the petition, could withdraw their names therefrom
before action had thereon ?

We think not. When the petition was presented it was
wiTHDBAWAL the duty of the council to take proper steps to as-
?EiTnS? "^^ certain if the signatures ^^r^ bona fide, and if it
contained the requisite number who were electors? For
that purpose the same might be referred to a committee and
postpone action until time for such examination. Between
the time the petition was presented and the next regular
meeting, at which action was had thereon, several signers
withdrew their names. This they had the right to do, the
council not having acted thereon. Hayes v. Jones, 2y Ohio
St. 218.

If the council had ordered the election, it may be that
petitioners could not thereafter defeat an election, nor author-
ize the council to rescind its order, by withdrawal of their



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THE STATE V. CONSTANTINE. 33

names. It was held, they could not do this in a road case,
alter the petition for a road had been acted on, and a report
of the viewers made. Grinnell v. Adams, 34 Ohio St. 44.

Be this as it may, we think there was no error by the dis-
trict court in holding that the action of the council in refer-
ring the petition to a committee until the next regular meet-
ing, and in refusing to order the election on its then appearing
that by voluntary withdrawals the number of petitioners had
been reduced below the required number.

Motion overruled.

Right to Trial by Jury in Proceedings in Mandamus.— High,
Extraordinary Legal Remedies (2d Ed.), § 30 c, says: *' The right of trial
by jury in proceedings in mandamus is generally determined by constitu-
tional or statutory enactments in the different States. In Connecticut it
is held that the constitutional provision for jury trials has no application
to proceedings in mandamus, and that when issues of fact are raised by
the pleadings they are to be tried by the court without a jury. [Castle v,
Lawlor, 47 Conn. 340.] And under the civil-practice act of Montana it is
held that a proceeding in mandamus not being an ordinary action at com-
mon law, the relator is not entitled as a matter of right to a trial by jury,
and that it rests in the sound discretion of the court to award such trial.
[Chumasero v. Potts, 2 Mont. 242.] "



The State ex rel

V.
CONSTANTINE.

(42 Ohio State, 437.)

The election and the appointment of an officer, as authorized by section
27, article 2 of the constitution, are different and distinct modes of filling
an office.

Where an office is filled by an election the election must conform to the
requirements of the constitution, and each elector of the district is en-
titled to vote for a candidate for each office to be filled at the election.

A statute authorizing the election of four members of the police board
at the same election, but which denies to an elector the right to vote for
more than two members, is in conflict with article 5 of the constitution.

In quo warranto. Reserved by the District Court of Clark
county.
S, A, Bowman and R. A. Harrison for plaintiff.

9 Cor. Cas. — 3



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34 THE STATE V. CONSTANTINE.

No constitutional right of a voter can be abridged, added
to, or altered by legislation. Monroe v, Collins, 17 Ohio St.
666, 686; Copin v. Foster, 12 Pick. 485, 488 ; Page v. Allen,
58 Pa. St. 338 ; Dills v, Kennedy, 49 Wis. 555.

The mode or manner of conducting an election is one
thing, the election itself is another thing. State v. Adams,
Brightly's Leading Cases on Elections, 286.

Charles W. Constantine for defendants.

McIlvaine, J. — This proceeding is prosecuted to oust de-
FACT8. fendants from the office of police commissioners of

the city of Springfield, and wholly exclude them from the
exercise of franchises, powers and authority, assumed to be
conferred by the Act of April 21, 1884, entitled " An act to
amend sections 1998, 2012, 2013, 2014, 2021 and 2022 of the
Revised Statutes of Ohio."

Defendant Constantine, as mayor of the city of Springfield,
and defendants Kinnane, Schneider, Fried and Conklin, who
Were elected to the office of police commissioners by the
electors of the city of Springfield, in accordance with the
terms of said statute, rely on its provisions as their sole au-
thority for assuming to act as such board of police commis-
sioners.

Section 1998, as amended by said act, reads as follows:
** In cities of the first and second grades of the second class,
and in cities of the third grade of the second class, having a
population of nineteen thousand, and not exceeding twenty
thousand, and in cities having a population of twenty thous-
and and not exceeding thirty thousand five hundred, by the
last federal census, and that have not been advanced to a city
of the second grade, second class, all powers and duties with
respect to the appointment, regulation, government and con-
trol of the police shall be vested in and exercised by a board
consisting of a mayor, who shall be president, and four com-
missioners, who shall be electors and freeholders of the city,
and a majority shall constitute a quorum, and in cities of the
third grade of the second class, having a population of nineteen
thousand and not exceeding twenty thousand, and in cities
having a population of twenty thousand and not exceeding
thirty thousand five hundred, by the last federal census, and



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 4 of 73)