Farrington v. Turner | Cases | Westlaw

This is a quo warranto proceeding, brought by the attorney general in behalf of the relator to ascertain the rights of the respondent **545 to the office of sheriff in the county of Ogemaw. The respondent is the present incumbent, and claims to have been elected to the office at the general election in November, 1882. Issue was joined at the April term of this court, and sent to the circuit court for the county of Ogemaw for trial on the facts. The trial was had by jury, and the issue as made up, together with the jury's findings at the trial, are now before us upon this hearing.

The whole issue, as presented by the record, narrows down to the single question, “Was the vote taken in the township of Edwards legal?” If it was, the writ must be *28 dismissed; if illegal, judgment of ouster must go against the respondent, and in that case it will remain to be determined whether or not the relator is entitled. The only irregularity relied upon by the relator is that on the morning of election the supervisor and justice of the peace met at the school-house in district No. 1 and organized as inspectors of election, and, without receiving any votes at that place, adjourned the election to the school-house in district No. 2 in said township, and on doing so announced the fact publicly to all present, and left a proper person at No. 1 to notify all electors who came there to vote of the change made by the board. The jury find, as matter of fact, the change was made in good faith by the inspectors, they believing they had the right to do so, and not to deprive any elector from voting, but for the purpose of accomodating a larger number of the voters,—district No. 1 being in the south-east corner of the township,—said township consisting of the territory of two surveyed townships,—and that the districts were about eight miles apart. The jury further find that two of the electors of the township did not vote because of the change made and other business, and that several objected to the removal of the place of voting; that it was not made to appear that any other neglected to vote because of the adjournment, or that those who stayed away, if any, would have voted for the relator if the change had not been made; that the voting at No. 2 was conducted orderly, the returns properly made, and in the county canvass the votes were counted as given, and the respondent declared elected.

Nowhere in the record is it made to appear that had the election in the township of Edwards been held in district No. 1, as relator claims it should have been, he would have received more votes, or even as many, as he received at No. 2. It is really not claimed by relator that he would have been elected had the election been held in district No. 1, but it is insisted that by the action complained of the vote of the township was made void, and lost to either party. *29 In such cases it is held in California that it is no more than an irregularity, and that the good faith of the action taken should control; and it is sufficient that no fraud or deception has been used, and no one is deprived of his opportunity to vote, and no one is injured. Whipley v. McKune, 12 Cal. 352. And this substantially says that, no matter how erroneous may be the action of an election officer, if it does no injury to the party complaining, he has no grievance to redress. And the courts very generally hold statutes prescribing the manner of holding elections directory and not mandatory, unless it affirmatively appears that the irregularity is of a character to change the result, and when that is the case the relator should make that fact appear. People v. Cook, 14 Barb. 290; Holland v. Osgood, 8 Vt. 280; Corliss v. Corliss, Id. 373; Marchant v. Langworthy, 6 Hill, 646; Ex parte Heath, 3 Hill, 43; Dishon v. Smith, 10 Iowa, 212; People v. Cook, 8 N.Y. 91; Lanier v. Gallatas, 13 La Ann. 175. The principle I understand to have been established by this court, and also by the great weight of authority, is that an election is not to be set aside and declared void because of an irregularity which does not affect the result; that the “will of the electors, plainly expressed in the forms prescribed by law, cannot be defeated by the negligence, mistake, or fraud of the officers appointed to register the result of an election.” People v. Cook, 14 Barb. 372; People v. Vail, 20 Wend. 14; **546 People v. Cicott, 16 Mich. 324. “And even when the statutory provisions are mandatory, they do not necessarily defeat an election actually held, if the means exist of determining the result. A particular act or proceeding may be rendered void, and the election be upheld notwithstanding.

Applying these principles of law to the facts as found by the jury, and I am unable to perceive how the relator can prevail. Here was an election held under the forms of law, in good faith. No fraud is imputed, nor is it even shown positively that any one was inconvenienced, much less prejudiced, by the action of the board complained of. No person cast a vote who was not entitled. Two only complained of the action *30 of the board, and it is not shown that if they had voted they would have cast their ballots for the relator; but if they had, it could not have affected the result. We think the relator has failed to show himself injured by the action of the inspectors of election, or that the respondent is not entitled to the office of sheriff of Ogemaw county; and the relator's petition must be dismissed, with costs.