Summary
In Kling the real issue between the parties was found to be one of the title to and ownership of certain horses as well as foreclosure of a chattel mortgage.
Summary of this case from First National Bank of Philip v. TempleOpinion
Submitted December 4, 1934. (Calendar No. 38,189.)
Writ allowed December 5, 1934.
Prohibition by Henry Behrendt against Board of State Canvassers of the State of Michigan to prevent their conducting a recount of the votes cast for secretary of State in certain precincts in Wayne county. Submitted December 4, 1934. (Calendar No. 38,189.) Writ allowed December 5, 1934.
Schmalzriedt, Frye, Granse Frye, for plaintiff.
Patrick H. O'Brien, Attorney General, for defendant.
The question here presented is whether the board of State canvassers may recount the votes cast for the office of secretary of State in certain election precincts in the county of Wayne at the last November election on the petition of one of the candidates at such election.
Section 4 of article 16 of our State Constitution reads as follows:
"In case two or more persons have an equal and the highest number of votes for any office, as canvassed by the board of State canvassers, the legislature in joint convention shall choose one of said persons to fill such office. When the determination of the board of State canvassers is contested, the legislature in joint convention shall decide which person is elected."
This provision was construed by this court in Dingeman v. State Board of Canvassers, 198 Mich. 135 (decided in 1917). The authorities were reviewed at some length, and the conclusion stated:
"Other cases might be cited, but these are sufficient to demonstrate the rule adopted by this court. Running through all these cases is the rule, to my mind clear and distinct, that wherever by the organic law, whether Federal, State, or municipal, a tribunal is created to finally determine the right to an office, that tribunal is exclusive, and there, and there only, may the right to the office be tested. By the organic law of this State the legislature, sitting in joint convention, is made such tribunal as to the office here involved. By that tribunal, and by that tribunal alone, may the ballots cast for the office of circuit judge be recounted, and the contest for this important office be decided."
In our opinion decision in this case is controlled thereby. The prayer of the petition to prohibit the said board of State canvassers from proceeding with such recount is granted, and a writ will issue if necessary. No costs will be allowed.