Wattles ex rel. Johnson v. Upjohn

179 N.W. 335, 211 Mich. 514
CourtMichigan Supreme Court
DecidedSeptember 30, 1920
DocketDocket No. 100
StatusPublished
Cited by13 cases

This text of 179 N.W. 335 (Wattles ex rel. Johnson v. Upjohn) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wattles ex rel. Johnson v. Upjohn, 179 N.W. 335, 211 Mich. 514 (Mich. 1920).

Opinion

Steere, J.

The primary purpose of this proceeding, as emphasized in the arguments and briefs of counsel, is to test the validity of the voting system for electing members of the governing body of the city of Kalamazoo-under a recently adopted charter. The motives, which are somewhat discussed we regard as wholly immaterial. The controversy was brought before the circuit court of Kalamazoo county by an information in the nature of quo warranto filed, by the prosecuting attorney on the relation of one Johnson, an alderman of the city under its preceding charter, [516]*516against the mayor and commissioners elected pursuant to the provisions of the present charter, to test their right to such offices. It is also contended that the proceeding resultantly involves the validity of the entire present charter of the city. Counsel for plaintiff concede defendants were “regularly elected as commissioners in so far as their election could be regular under this charter.”

From 1838 to 1883 Kalamazoo was incorporated as a village. In the latter year it was incorporated as a city. From then until 1918 it continued as a city incorporated under special acts of the legislature. In February, 1918, the electors adopted a new charter under the so-called home rule provisions of the Constitution and supplemental legislation. Details of proceedings to that end need not be reviewed, as it is conceded all prescribed steps leading up to the adoption of the present charter were regularly taken, and that in so far as a charter could be legally adopted with the claimed invalid provisions in it, every requirement has been fully complied with.

At the provided April election which followed adoption of the present charter by electors of the city, defendants were elected city commissioners, superseding the board of aldermen and mayor who up to that time constituted the governing body of the city under its old charter. Plaintiff Johnson was then a member of the board of aldermen, aiid deposed before the term for which he was elected expired by the newly elected city commissioners when they qualified and assumed their duties under the new charter.

While several other more or less technical questions were raised in the pleadings, counsel for appellants states the two questions to be decided are:

“First. Is the provision of the new charter, which provides for the election of commissioners by the proportional representation system contained therein, unconstitutional?
[517]*517“Second. If so, does that render the entire charter unconstitutional ?”

Plaintiff’s contention before the circuit court and here is that the system of electing commissioners provided in the charter is unconstitutional because—

“(a) The elector is deprived of the right to vote for every office to be filled.
“(b) The elector is not protected in his right to voting power equal to that of every other elector.”

The provisions of the Constitution which it is claimed this voting system contravenes are section 1 of article 3 which under the heading “Elective Franchise” provides, so far as applicable here:

“In all elections every * * * (defining at length qualified voters) shall be an elector entitled to vote.” * * *

And the provision in section 25, article 8, under the heading “Cities and Villages” which provides that—

“No city or village shall have power to abridge the right of elective franchise, to loan its credit, etc.”

The charter adopts the general’ laws of the State relative to the registration of voters, nominations and elections, “except as herein otherwise provided.”

Section 35 recognizes as qualified electors all inhabitants of the city “having the qualifications, of electors under the Constitution and general laws of the State,” and section 41, on the “Conduct of Elections,” introduces the system of voting in controversy as follows:

(a) The members of the city commission shall be elected by. the proportional representation system. The form of the ballots, the method of conducting elections and thei rules, for counting the ballots shall be governed by ordinance to be enacted by the city commission, which ordinance shall contain all the provisions relating thereto hereinafter prescribed in the schedule to this charter.”

Whether any ordinance following the “schedule” was [518]*518ever enacted does not appear, but section 181 returns to the subject and provides that “The first election of officers under this schedule shall be held on the first Monday in April, 1918,” specifies officers to be elected, etc., and section 182 prescribes rules for the first and succeeding elections under “this schedule,” directs how-ballots shall be printed with names of candidates “rotated” and directions to voters at top in part as follows :

“Put the figure 1 opposite the name of your first choice, do so by putting the figure 2 opposite the name-of your second choice, the figure 3 opposite the name of your third choice, and so on. Express thus as many choices as you please.”

It may perhaps be assumed, in the absence of further mention, that the schedule foreshadowed in previous sections materializes in section 183, which, under the heading “Rules for Counting Ballots,” enlarges upon the subject in a series of directory and explanatory paragraphs from (a) to (t) inclusive, which may be said to furnish the groundwork for this litigation. The commissioners who prepared this charter for submission to the electors state in their explanatory foreword “to the voters of Kalamazoo,” that it had been the aim and policy of the commission “to write this charter so that the fundamental laws of the city will be brief, simple and understandable to all. In carrying out this policy all detail and immaterial matter has been excluded.”

Whether that portion of the fundamental law of the city found in section 183 is simple and understandable to all, and whether if applied as it should be understood the result is constitutional, are debated issues of importance, and to approximate an understanding of the controversy it seems advisable, inasmuch as “all detail and immaterial matter has been “excluded,” to quote the section in full, as follows:

[519]*519“Section 183. Ballots cast for the election of members of the city commission shall be counted and the results determined by the central election board according to the following rules:
“(a) On all ballots a cross shall be considered equivalent to the figure 1. So far as may be consistent with the general election laws, every ballot from which the first choice of the voter can be clearly ascertained shall be considered valid.
“(5) The ballots shall be first sorted and counted at the several voting precincts according to the first choices of the voters. At each voting precinct the ballots cast for each candidate as first choice shall be put up in a separate package which shall be properly marked on the outside to show the number of ballots therein and the name of the candidate for whom they were cast. The ballots declared invalid by the precinct officials shall also be put up in a separate package, properly marked on the outside.

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Bluebook (online)
179 N.W. 335, 211 Mich. 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wattles-ex-rel-johnson-v-upjohn-mich-1920.