Robinson v. Secretary of State

145 N.W.2d 254, 4 Mich. App. 404, 1966 Mich. App. LEXIS 555

• Court: Michigan Court of Appeals
• Decided: October 6, 1966
• Docket: Docket 2,703
• Status: Published

Opinion

J. H. Gillis, J.

Plaintiff, Edward J. Robinson, is an incumbent State senator seeking re-election on November 8, 1966. Defendant James M. Hare is secretary of State for the State of Michigan, and" as such is the chief election officer of the State and has the duty of furnishing to each county board of election commissioners within the State the form of ballot to be utilized at all primary and general elections.

Pursuant to CLS 1961, § 168.684 (Stat Ann 1965 Cum Supp § 6.1684), the Republican State Central Committee * prepared and adopted a vignette which employed within its borders two pictures — one of the present governor of Michigan, George Romney, and one of a former president, Abraham Lincoln. Under each picture appears the surname of the person depicted.

Plaintiff commenced suit September 15, 1966, by complaint filed in the Wayne county circuit court alleging the following: Plaintiff’s name as a candidate of the Democratic party for re-election as State senator in the November 8,1966, election, will appear on the ballot within his district; that the picture of Governor George Romney, who is also seeking reelection, will appear — together with Abraham Lincoln’s — under the Republican party column; that the appearance of the picture of Governor George Romney under the Republican party column on the official ballot for the general election of November 8, 1966, is in violation of OLS 1961, § 168.931 (Stat Ann 1966 Rev § 6.1931) which states:

“(p) No person shall, while the polls are open, at any polling place on any primary or election day, solicit votes in the said polling place or within 100 feet from any entrance to the building in which said polling place is located.”

Plaintiff further alleged that defendant is under a duty to refrain and desist from releasing, publishing, or putting into circulation the official ballots for the general election on November 8, 1966, which have Governor Romney’s picture heading the Republican party, and requested the court to enjoin the defendant from releasing, publishing or putting into circulation these ballots.

In answer to the complaint and show cause, appellee denied that the appearance of Governor Romney’s picture on the Republican party’s vignette constituted a violation of the election laws, OLS 1961, § 168,931, supra.

The trial court, after a hearing, denied plaintiff the relief sought and assessed costs of $250 against plaintiff.

The basic issues for determination by this Court and raised by plaintiff on appeal are twofold:

1. Does the Republican party vignette incorporating Governor George Romney’s picture, with his surname spelled out thereon, constitute a violation of the State election law, CLS 1961 § 168.931, supra, inasmuch as all partisan ballots will contain same within various polling places on the November 8, 1966, general election?

2. Did the trial court err in assessing $250 costs? The statute is penal in nature and must be strictly construed. Arlan’s Department Stores, Inc., v. Attorney General (1964) 374 Mich 70, 72.

Plaintiff, in seeking injunctive relief has the burden of establishing that the vignette in question would “solicit” votes within the purview of the statute. The word “solicit” is not defined within the act. We do not decide the meaning of the word in other circumstances or as used in other státutes. We merely say that we cannot read into this statute a legislative intent to forbid the use of party vignettes specifically authorized by another statute.

The practice of including in party vignettes the visage of persons then active with a particular party appears to have existed for a number of years in Michigan. In past years former Governor G. Mennen Williams and former President Dwight D. Eisenhower appeared on the vignettes of their respective parties during their incumbency and at times when they were seeking re-election. The vignette’s prime purpose is to enable the voter to distinguish between the parties so that he can make his choice from among the various parties. That this purpose is accomplished by incorporating in the vignette a picture of some person readily identifiable as a partisan of that party — be it George Romney or John F. Kennedy — is self evident.

Our affirmance of the trial court settles a case of first impression in Michigan and one involving a public question. We have consistently declined to assess costs on public questions. The trial court is therefore directed to set aside its order assessing costs. The balance of the trial court’s judgment is affirmed. No appellate costs, a public question being involved.

Lesinski, 0. J., and Holbrook, J., concurred.

* See CLS 1961, § 168.597 (Stat Ann 1965 Cum Supp § 6.1597).