Adsit v. Osmun

11 L.R.A. 534, 84 Mich. 420

• Court: Michigan Supreme Court
• Decided: February 5, 1891
• Status: Published

Opinions

Morse, J.

In the first case above, the relator moved this Court as soon as possible. His application for mandamus shows that on September 4, 1890, he was nominated by the Democratic county convention for the county of Kent for the office of circuit judge to fill- a vacancy, and that on September 23, 1890, 25 electors of said county requested the Secretary of State, Gilbert R. Osmun, to give the requisite statutory notice of an election to be held on November 4, 1890, to fill said vacancy in the office of circuit judge. The Supreme Court was in vacation' in the month of September, and at the first opening of the Court, October 7, 1890, the relator presented his petition, and an order to show cause was granted. This could not be heard until October 14, 1890, at which time, for reasons stated in People v. Burch, ante, 408, we decided to hold the decision of the motion until the hearing in People v. Burch, which was then pending in this Court. Under the opinion filed in that case, the relator was clearly entitled to his writ, and it was the duty of the Secretary of State to have given notice of the election as requested. But, under the circumstances as shown in People v. Burch, we should not have granted costs with the writ, as the Seci’etary of State was not reprehensible in refusing the relator’s request in view of the provisions of the law of 1889, and the questions raised as to the legality of its enactment. ■

We must now consider the most difficult as well as the most vital point, as it affects the relator, in the whole-controversy. In the second case above, of Allen C. Adsit, Relator, v. Board of State Canvassers, Respondents, it appears that, acting upon the nomination of the Democratic party, and believing that it was competent for the electors at the general election on November 4, 1890, to elect a successor to Judge Burch under the Constitution and laws of this State, steps were taken by the relator to give as general notice of such election, and his candidacy for circuit judge, as possible, in view of the refusal of the Secretary of State and the sheriff of Kent county to give the statutory notices. The relator’s name was placed at the head of the Democratic county ticket upon all the Democratic tickets printed by the Secretary of State for said county of Kent; his name for the office of circuit judge of the seventeenth judicial circuit to fill a vacancy being therefore on the official ticket of his party in said county. This official ticket was published in the several Democratic newspapers published in said county, including one published in the Holland language; and in such county the fact of his candidacy for said office was published as a matter of news in the Republican and Independent newspapers, and also the claim of the relator upon what ground he was a candidate, to wit, that the appointment of Judge Burch by the Governor could not in law continue beyond the general election of November 4, 1890; and the proceedings of said relator in the Supreme Court, taken before said election, were also published in all the newspapers. The relator also caused printed notices, signed by the .chairman and secretary of the Democratic county committee, to be posted and circulated in each of the townships and precincts of said county, that an election would be held to supply such vacancy in the office o'f judge of the seventeenth judicial circuit (Kent county) at the general election to be held on November 4, 1890; and the fact thereby, as it is alleged by relator, that such an election of circuit judge would be held, “became and was notorious in all the election precincts of said circuit.”

At said election in said county of Kent, the relatar received at every precinct iñ said county nearly if not the full vote of his party for said office, his total vote in the county being 11,659. The Democratic candidate for Secretary of State received 11,690; Auditor General, 11,699; Member State Board Education, 11,706; State Senator, 11,729; surveyor, 11,693; coroners, 11,695 and 11,693. He received more votes than the following candidates upon his party ticket, to wit, State Treasurer, sheriff, register of deeds, and prosecuting attorney. In the whole county, taking the vote upon surveyor and coroners as a fair index of party strength, he ran about 33 votes behind his ticket. The whole vote on Member of State Board of Education was as follows: Hammond, Democrat, 11,706; Ballou, Republican, 10,061; Scott, Prohibition, 1,601; Powers, Industrial, 85, — total, 23,453. One-half of this would be 11,727, so that the relator received not quite one-half of the full vote of the county cast for the candidates for other offices. But, if the Republicans and Prohibitionists had not supported the same candidate for this office, the relator would undoubtedly have received a plurality of votes, if his vote had not fallen below 11,000; and the probabilities are very strong that if all parties had participated in the election, and a full vote had been cast, the relator would have been elected, as every candidate upon his party ticket received pluralities ranging from 2,397 upon Congressman down to 344 for register of deeds, the average of pluralities being over 1,500, and no reason is shown why the relator was not an acceptable candidate to the voters of his own party.

The votes cast for the relator were canvassed by the Kent county board of canvassers, and a tabulated statement of the same forwarded to the Secretary of State, as provided by law. The Board of State Canvassers refused to examine this statement, or to declare the result. The relator asks the writ of mandamus out of this Court to compel a meeting of the Board of State Canvassers, and .directing them to examine such statement of votes, and "to make a statement of the whole number of votes given for said office in said county of Kent at such last general ■election, and deliver the same to the Secretary of State, with the determination of said board as to'what person has been, by the greatest number of votes, duly elected to said office indorsed thereon.

As heretofore shown in People v. Burch, and in this opinion, the general election of November 4, 1890, was the proper and legal .time for electing a successor to Judge Burch, and to fill the unexpired term ending December 31, 1893. If the Secretary of State had issued the notice prescribed by the statute, there could be no ■doubt as to the legality of the election of the relator as such successor, and he would now be entitled to the ■office upon qualifying as the law directs. Was this notice necessary? The statutes provide that—

“When a vacancy shall occur in the office of Judge of -the Supreme Court, of judge of the circuit court, * * * 30 days or more before a general election, the Secretary of State shall, at least 20 days before such election, cause a written notice to be sent to the sheriff of each of the counties within the election district in which such vacancy may occur, which notice shall state in which office the vacancy occurred, and that such vacancy will be supplied at the next general election.” How. Stat. § 146.

The sheriff upon receiving suchmotice is to cause forthwith a like notice in writing to be delivered to the township clerk in each township, and to one of the inspectors of election in each ward in cities, within his county (Id. § 151), and 20 days’ notice of the' holding of each general election for the choice of county officers, designating the officers to be chosen at such election (Id. § 152).

The authorities are uniform that the neglect of the Secretary of State, or of the sheriff, or of both of them, to give these notices, would not invalidate an election of persons receiving the highest number of votes for any office for which the regular term was by law to be filled at a general election. Attorney General v. Canvassers, 64 Mich. 609; People v. Hartwell, 12 Id. 508; People v. Witherell, 14 Id. 48; 6 Amer. & Eng. Enc. Law, 298, 299, and cases cited; State v. Bernier, 38 N. W. Rep. 369 (Minn.); Cooley, Const. Lim. 603; Mechem, Pub. Off. § 173. The notice in such case required by the statute is deemed directory, and not mandatory. The right and duty to hold the election is derived from the law, and not from the notice. The statute makes the time and occasion of the election imperative. Where such a direction is given, it cannot be made nugatory by any failure to give notice. Every one is bound to take notice of what the statute requires. Attorney General v. Canvassers, 64 Mich. 611. But where the time and place of the election are not fixed by law, but the election is only to be called, and the' time and place to be fixed, by some authority named in the statute, after the happening of some condition precedent, it has been held that it is essential to the validity of such an election that it be called, and the time and place fixed, by the very agency designated by law, and none other. Stephens v. People, 89 Ill. 337.

The authorities are not entirely harmonious in regard to the filling of vacancies. It is said, in Mechem on Public Offices and Officers (section 174), that, where the law requires the vacancy to be filled at the next general election, the time and place of which are fixed by law, no notice is necessary, although the law declares that notice shall be given, specifying the vacancy to be filled; an election at-the time and place fixed by law will be valid, although no. notice was given; citing People v. Cowles, 13 N. Y. 350; People v. Hartwell, 12 Mich. 508; Dishon v. Smith, 10 Iowa, 212; State v. Orvis, 20 Wis. 235; State v. Goetze, 22 Id. 363; State v. Jones, 19 Ind. 356. Judge Cooley, in his work on Constitutional Limitations, page 603, says:

“ Where, however, both the time and the place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer, whose duty it is to give notice of the election, has failed in that duty. The notice to be thus given is only additional to that which the statute itself gives, and is prescribed for the purpose of greater publicity; but the right to hold the election comes from statute, and not from the official notice. It has therefore been frequently held that when a vacancy exists in an office which the law requires shall be filled at the next general election, the time and place of which are fixed, and that notice of the general election shall also specify the vacancy to be filled, an election at that time and place to fill the vacancy will be valid, notwithstanding the notice is-not given; .and such election cannot be defeated by showing that a small portion only of the electors were actually aware of the vacancy, or cast their votes to fill it.”

There are, however, many cases opposed to this doctrine. It is held by these authorities that where there is— •

“No notice, either by official proclamation or in fact, and it is obvious that the great body of the electors were misled for want of the official proclamation, its absence becomes such au irregularity as prevents an actual choice by the 'electors, — prevents an actual ‘ election/ in the primary sense of that word, — and renders invalid any semblance of an election, which may have been attempted by a few, and which must operate, if it be allowed to operate at all, as a surprise and fraud upon the rights of the many.” Foster v. Scarff, 15 Ohio St. 532.

And in cases where there was no official notice of a vacancy, or that such vacancy would 'be filled at the general election, and the fact was known to but few of the voters, or there was a doubt as to whether there was a vacancy, and but a small number of the electors voted for any candidate to fill such vacancy, it has been held that the election was invalid. State v. McKinney, 25 Wis. 416; Wood v. Bartling, 16 Kan. 109; State v. Good, 41 N. J. Law, 296; Beal v. Morton, 18 Ind. 346; People v. Crissey, 91 N. Y. 616; Toney v. Harris, 85 Ky. 453 (3 S. W. Rep. 614); Secord v. Foutch, 44 Mich. 89.

I think the true doctrine is as laid down in the text of Mechem on Public Offices and Officers, at pages 108, 109, § 174, that an election to fill a vacancy of which no notice was given, and which was in fact known to but few of the voters, is void. But though the official notice was not given, or, if given, not in the prescribed form, yet if the election has been held, and the great body of the voters had notice in fact of the vacancy, this, coupled with the fact that they are presumed to know that the law requires the vacancy to be filled at the next election, is sufficient, even though many refrained from voting because of a difference of the construction of the law. See, also, Jones v. Gridley, 20 Kan. 584; State v. Shirving, 19 Neb. 497 (27 N. W. Rep. 723); Foster v. Scarf, 15 Ohio St. 532; Com. v. Smith, 132 Mass. 289; Dishon v. Smith, 10 Iowa, 212. The question to be considered in these cases is whether the want of the statutory notice has resulted in depriving sufficient electors of the opportunity to exercise their franchise to change the result of the election; and the election should not be set aside when it is apparent that the result would not have been different had all the electors voted.

In the case before us it is evident that all the electors in the county of Kent had nearly, if not quite, as full notice that an election for circuit judge was to take place as if such notice'had come through the official statutory notices. It was notorious that the relator was a candidate; that his party had nominated and were supporting him for this office, claiming that; under the Constitution and laws of this State, a vacancy had occurred in this office, which was required to be filled at the election on November 4, 1890. The newspapers were full of his candidacy, and of his attempts to obtain official notice of the election. Every Democratic ticket bore his name for the office, printed by authority. Notices of the election were posted in every voting precinct, unofficial, it is true, but yet bringing the fact home to the electors that a large portion of the electors, comprising one of the principal political parties in the county, were insisting that a vacancy had occurred in the office of such circuit judge; that the law required such vacancy to be filled at that election; and that they were supporting the relator as a candidate for such .office. It is not to be inferred from the circumstances surrounding and leading up to this election that any considerable number of the'electors of the county of Kent were unaware of the candidacy of relator, or that an election was being held to fill an alleged vacancy in the office of circuit judge. On the contrary, it clearly appears that the other political parties, and the voters of such parties, refrained from taking part in such election under the belief that no vacancy existed, and that Act No. 97, Laws of 1889, extending the term of the respondent until December 31, 1893, was constitutional and valid.

Upon the presentation and argument of this application for mandamus, I was strongly impressed with the idea that such electors were justified in relying upon a statute of the State, which had not been declared invalid, and in refraining from voting for a candidate for this office, and that therefore the election' could not be a legal one without the official notice provided by the statute. But on consideration, and a review of the authorities, I have arrived at a different conclusion.

An unconstitutional law is no law, and in no case can it be made a justification in law for any action or non-action. The maxim that all men are presumed to know the law must .prevail. And, while there may be cases where a person will not be punished with costs for not taking action in opposition to a law appearing upon the statute-books before the same is declared unconstitutional, when such costs are in the discretion of the court, yet no rights can be founded upon such a law; nor can any person or persons be deprived of any rights or privileges because such a law has been apparently legally enacted, and appears in the body of our laws. If, in the present case, but few had voted, and it appeared that the fact of the existence of a vacancy, or that this election was the proper and legal time to fill it, was known to but a small portion of the electors, so that holding the election valid would seem to be a disfranchisement of a large majority of the electors, I should/under the rule heretofore quoted from Mechem on Public Offices and Officers, be constrained to hold that no legal election had occurred for this office. And this, I think, would be in accordance with the ruling of this Court in Secord v. Foutch, 44 Mich. 91, where Judge Campbell says:

“In the present case it is entirely clear that there could have been no general idea that there was to be an election for judge of probate, for there were no opposition candidates, and the number of votes cast is conclusive of the general understanding. * .* * It is a necessary safeguard to popular elections that the people be informed what officers they are to vote for.’ They may be expected to know what elections are to be made at the regular general elections, and as to those in ordinary cases It might be dangerous to allow a failure to give notice to avoid the election. This would enable the popular will to be defeated by the misconduct of ministerial officers. But there can be no such knowledge assumed concerning vacancies in office, and, without some distinct and public notice of some sort, such an election could hardly fail to be capable of the worst kind of fraud and trickery.”

But this is not such a case, and seems to me to be governed by the case of People v. Hartwell, 12 Mich. 508. The Constitution and our laws plainly provide that a vacancy existed in this office, and that the election of November 4, 1890, was the proper time to fill it. The Secretary of Staté gave notice- as he ought to have done of an election at that date of a justice of the Supreme Court to fill vacancy, and no one will contend that if he had failed to do so it would have invalidated the election, providing a candidate had been nominated and voted for by a plurality of the people, considered in reference to the relative strength of the four political parties in this State. In other words, the" Secretary of State, a ministerial officer, could not have prevented the election of a Justice of the Supreme Court by failing to give the notice required by the statute, and it would have been entirely immaterial upon what ground he based his refusal to issue such notice. The same section and article of the Constitution that governs in the case of election to fill a vacancy in the office of Justice of the Supreme Court also expressly regulates and controls the election to fill a vacancy in the office of circuit judge. Article 6, § 14. And by necessary implication this section has been held to preclude the appointment by the Governor to fill a vacancy in either of these offices beyond the next general election. The successor to such appointee, when elected, could not “hold his office for the residue of the unexpired term,” if the Governor could by appointment fill the vacancy for the unexpired term regardless of intervening general elections. People v. Lord, 9 Mich. 227; People v. Burch, ante, 408. Neither can the Secretary of State, by refusing notice, nor a minority party, by refusing to nominate a candidate or to vote, prevent the holding of an election, when the Constitution is plain that it should be held.

The reason why the notice is not given, or why those not voting abstain from exercising their privileges as electors, is unimportant, except as it may go to the question whether or not there was such a' public notice of the election as to bring home to the majority of the electors the fact that such an election was being held. Otherwise it would be in the power of a purely ministerial officer, in concert with a minority party, to assume either that a law was constitutional or unconstitutional, as the case might be, to suit their purposes, and thereby, by neglecting to give notice and refusing to vote, to defeat the will of the majority, and keep an office filled by one who the law declares - should have a successor elected by the will of the majority, or, in this State, the plurality, of the people. This cannot be permitted, as is clearly shown in People v. Hartwell, 12 Mich. at page 523.

It follows that the relator is entitled to the'office of circuit judge of the county of Kent, in the place and stead and -as the successor of Marsden C. Burch, the present incumbent, and that the writ of mandamus should issue as prayed in the case of Allen C. Adsit, Relator, v. State Board of Canvassers, Respondents.

Ohamplin, C. J., and McGrath, J., concurred with Morse, J.