Edwards v. Flint City Clerk

156 N.W.2d 153, 9 Mich. App. 367, 1968 Mich. App. LEXIS 1481

• Court: Michigan Court of Appeals
• Decided: January 25, 1968
• Docket: Docket No. 4,945
• Status: Published

Opinion

Quinn, J.

By this action, plaintiff challenges the right of defendant Hendon (Flint city clerk) to conduct a door-to-door registration of electors in Flint by the use of a group of volunteer assistants. On January 15, 1968, at the conclusion of a hearing on an order to show cause issued on the filing of plaintiff’s complaint, the trial court by oral opinion held as follows:

1. The appointment of volunteers as assistant clerks is illegal and any registrations taken by them are null and void.

2. Door-to-door registration is illegal.

3. Such registration is enjoined permanently and the clerk is ordered not to process any door-to-door registrations already taken.

■ The next day, defendants filed application for emergency leave to appeal to this Court and for stay of proceedings below. The emergency is apparent from the fact that the period of registration for a special election to be held February 20, 1968, closes January 19,1968. Leave and stay were granted by this Court’s order of January 17, 1968, which also set the matter for oral argument at Flint on January 24, 1968. After argument and on January 25,1968, by order before opinion, this Court reversed the trial court. The reasons for such action could not be expressed adequately in the order and they are as follows:

CLS 1961, § 168.29, as amended by PA 1967, No 186 (Stat Ann 1968 Cum Supp § 6.1029) authorizes appointment of assistant clerks and it does not require that they shall be paid.

On the strength of the following language found in CLS 1961, § 168.497, as amended by PA 1963 (2d Ex Sess), No 10, and PA 1967, No 188 (Stat Ann 1968 Cum Supp § 6.1497):

“Except as provided in section 504 no application for registration shall be executed at any place other than the office of the township, city or village clerk or a public place or places designated by him for receiving registrations pursuant to the provisions of this act, but such clerk may in his discretion receive such application wherever he may be.”

the trial court found house-to-house registration illegal. If such a result is possible, a point discussed later in this opinion, it is only possible by the most narrow construction of the statute. Such construction is contrary to the long established policy of this state. In Attorney General, ex rel. Conely, v. Common Council of Detroit (1889), 78 Mich 545, 559, 560, the Supreme Court said:

“The object of a registry law, or of any law to preserve the purity of the ballot box, and to guard against abuses of the elective franchise, is not to prevent any qualified elector from voting, or unnecessarily to hinder or impair his privilege. It is for •the purpose of preventing fraudulent voting. In order to prevent fraud at the ballot box, it is proper and legal that all needful rules and regulations be had to that end; but it is not necessary that such rules and regulations shall be so unreasonable and restrictive as to exclude a large number of legal voters from exercising their franchise. Nor can the legislature, in attempting, ostensibly, to prevent fraud, disfranchise legal voters without their own fault or negligence. The power of the legislature in such cases is limited to laws reg-ulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. The right to vote must not be impaired by regulation.”

As recently as 1958, this policy was reiterated in St. Joseph Township v. Municipal Finance Commission, 351 Mich 524, 530, as follows:

“The provisions referred to in sections 497 and 498 are obviously designed to secure the maximum registration possible and to thereby accomplish maximum popular participation in the electoral process.” (The section 497 referred to is Stat Ann 1968 Cum Supp § 6.1497, supra.)

This established policy leads us to the conclusion that absent a specific statutory prohibition, house-to-house registration of electors is not illegal.

Assuming arguendo that narrow construction is proper, the result reached by the trial judge is untenable. It is requisite that pertinent provisions of the act

* be considered together to the end that the general plan and purpose of the law-making body may be ascertained. Melia v. Employment Security Commission (1956), 346 Mich 544. When so considered, the language “no application for registration shall be executed at any place other than the office of the township, city or village clerk or a public place or places designated by him” of CLS 1961, § 168.497, as last amended by PA 1967, No 188 (Stat Ann 1968 Cum Supp § 6.1497), supra, applies during the mandatory days and hours when the clerk must be available at his office or other specified public place to accept registrations as required by CLS 1961, § 168.498, as last amended by PA 1967, No 188 (Stat Ann 1968 Cum Supp § 6.1498) and not otherwise.

Although the question was not raised below nor on appeal and a decision on it is unnecessary in view of what has already been said, it seems appropriate to point out that there is serious doubt in the mind of this Court that the action here involved is an action that is, or should be, recognized by the courts of this State. Doubt that it is an action recognized by Michigan courts arises from Attorney General v. Ingham Circuit Judge (1957), 347 Mich 579, and Finlayson v. Township of West Bloomfield (1948), 320 Mich 350. Doubt that it should be an action recognized by our courts arises from the fact that the basic inquiry on the issue of a person’s right to vote is whether that person possesses the qualifications to vote, and our statutes afford the means, of testing these qualifications both before and at election. See CLS 1961, § 168.512 (Stat Ann 1968 Cum Supp § 6-.1512), CLS 1961, §168.520 (Stat Ann 1956 Rev § 6.1520), CLS 1961, § 168.521 (Stat Ann 1968 Cum Supp §6.1521) and CLS 1961, §§ 168.727-168.729 (Stat Ann 1956 Rev §§ 6.1727-6.1729). In addition, see In re Penney (1935), 246 App Div 562 (282 NYS 961), and In re Registry of Electors (1933), 239 App Div 135 (267 NYS 744).

Reversed in all respects, but without costs, a public question being involved.

T. G. Kavanagh, P. «L, and McGregor, J., concurred.

CLS 1961, § 168.1 et seq., as amended (Stat Ann 1956 Rev and Stat Ann 1968 Cum Supp § 6.1001 et seq.).