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charter, the common council is the judge of the election and qualification of its own members and decides upon and determines contested elections of its members. It is contended by relator, and was so held by the learned judge of the superior court, that this provision is inconsistent with the general right of contest for any office, according to the laws of the State given by section 12, supra, and is repealed by the nonpartisan election law amendment. It has been the policy in this State to vest in legislative bodies the power to determine finally the elections and qualifications of their own members. The reasons for this policy received the consideration of this court in Naumann v. Detroit Board of Canvassers, 73 Mich. 252, 253, 254 (41 N. W. 267, 268), when Mr. Justice CAMPBELL, speaking for the court, said:
“It has been very common in this State, for obvious reasons, to prevent delay and litigation, to vest in the legislative boards of municipal corporations the same power of determining the claims of persons to belong to them that is vested in congress and the State legislature. It is always important to have as little delay and confusion as possible in the organization of such bodies, which directly represent the people, and are assumed to have as correct a sense of official duty as any other representative bodies. Public policy does not favor needless disturbances in the tenure of office, and the practice referred to has commended itself generally, and is probably as little liable to error as any other popular administrative machinery. * *
“The question of finality in the action of a common council in such cases against even judicial interference has been settled several times in this State. In the case of People v. Harshaw, 60 Mich. 200 (26 N. W. 879, 1 Am. St. Rep. 498), the subject was discussed and decided, and reference made to previous decisions, especially People v. Mayor, 41 Mich. 3 (2 N. W. 179); Cooley v. Ashley, 43 Mich. 458 (5 N. W. 659); Alter v. Simpson, 46 Mich. 138 (8 N. W. 724); Doran v. De Long, 48 Mich. 552 (12 N. W. 848). The question is not an open one here."
The provision in the organic law of the city of Grand Rapids giving this power to the common council was before the people of Grand Rapids when the amendments of 1913 were adopted. We find nothing in these amendments which expressly repeals this provision in the charter. Can it be said that any of the provisions of section 12 are inconsistent with this power? The salient provisions of the section are:
(1) A certificate of election is made prima facie evidence only; (2) an election to any office may be contested; (3) the contest shall be decided by the council as nearly as may be according to the laws of the State regulating proceedings in cases of contested elections for State officers; (4) the council is the judge of all elections; (5) the power of the council to settle unprovided for questions of proceedure.
In our opinion, none of these features of the amendment is inconsistent with or necessarily repugnant to the power of the council to be the sole judge of the elections of its own members. A right of contest can clearly be had before the incoming council, at which time the certificate of election is only the prima facie right of the holder thereof to the office. In such a contest it shall be decided by the council as nearly as may be according to the laws of the State regulating proceedings in cases of contested elections of State officers, which, in the case of a contest of the right of a member of the council to hold his office, must be considered as a directory provision only. In our opinion, section 12 of the amendment should be construed in connection with title 10, 84, of the charter, and both provisions given effect, if possible. This is in accordance with the decision of this court in Hilton v. Grand Rapids Common Council, 112 Mich. 500, 502, 503 (70 N. W. 1043, 1044), where this court said:
"Section 4, tit. 10, of the charter of 1877 (Act No. 282, Local Acts of 1877), provides that the common council shall be the judge of the election and qualification of its own members, and to decide upon and determine contested elections of members thereof.' It has been held in numerous cases that Act No. 208, Pub. Acts 1887, does not apply to a contest over an election to an office as a member of a body which, by law, is made the judge of the qualifications of its own members. This was held in Naumann v. Detroit Board of Canvassers, 73 Mich. 255 [41 N. W. 267], and was reaffirmed in Wheeler v. Manistee Board of Canvassers, 94 Mich. 448 [53 N. W. 914], and Belknap v. Ionia Board of Canvassers, 94 Mich. 516 ]54 N. W. 376].
"It is suggested that the present council is to be the judge of the election of the members of the body, and decide and determine upon contested elections. The reading of this clause would not indicate such a purpose. Title 2, § 20, reads as follows:
" "The common council of the preceding year shall convene on the Thursday next succeeding such election, at 2 o'clock in the afternoon, at their usual place of meeting, and the statement of votes filed with the clerk of the city by the inspectors of election shall be produced by said clerk, when the common council shall forthwith determine and certify, in the manner provided by law, what persons are duly elected at the said election to the several offices respectively.'
"It is contended that this latter section confers upon the present council the authority not only to canvass the returns, but to determine what persons are elected to the several offices respectively, and that this implies the right to proceed in any manner provided by law, for the purpose of ascertaining what candidate has received the greatest number of votes. We think, however, that this section should be construed in connection with title 10, § 4, and, so construed, must be held to relate only to those officers the authority to adjudge and determine of whose election and qualification is not vested elsewhere, and that the case must be held to fall within Naumann v. Detroit Board of Canvassers, supra."
Relator should bring his contest before the incom
ing council for disposal, and the determination of that body with relation thereto is final.
Because of this conclusion, it will be unnecessary for us to determine the question of the jurisdiction of the superior court and the sufficiency of the notice.
The judgment of the superior court is reversed.
GLINNAN V. JUDGE OF THE RECORDER'S COURT OF THE
CITY OF DETROIT.
1. AFFIDAVITS—CHANGE OF VENUE-MOTIONS-PRACTICE—NOTICE.
Upon filing a motion for change of venue in a criminal
case, the prosecuting attorney is required to serve copies of affidavits supporting the motion upon the accused or his attorney, as well in cases in the recorder's court of the city of Detroit as in the circuit court. Subdivision o of Circuit Court Rule 19 applies to practice in the recorder's court in such cases.
2. SAME-TITLE-CRIMINAL LAW-PRACTICE.
Affidavits employed in a criminal case a basis for a
motion for change of venue should be entitled in the court
and cause. Circuit Court Rule 37 b. OSTRANDER, J., dissenting.
Mandamus by Thomas E. Glinnan against James Phelan, one of the judges of the recorder's court of the city of Detroit, to require the respondent to vacate an order changing the venue of a criminal proceeding. Submitted June 16, 1914. (Calendar No. 26,237.) Writ granted June 30, 1914.
James McNamara, J. Shurly Kennary, and John P. Scallen, for relator.
Allan H. Frazer, Prosecuting Attorney, for respondent.
BROOKE, J. This is an application for a writ of mandamus requiring the respondent to set aside an order dated March 16, 1914, changing the venue for the trial of relator from the city of Detroit to Monroe county.
This is the second order for a change of venue made by the respondent in this case. The first was brought to this court for review on writ of mandamus and will be found reported in 173 Mich., at page 674 (140 N. W. 87). Following that action by this court, the respondent called the case for trial on July 10, 1913. A challenge to the array was interposed on behalf of relator and was sustained upon grounds requiring no discussion in the present proceeding. Thereafter, and on September 5, 1913, the board of jury commissioners filed with the clerk of the recorder's court a new list of 600 names for jury service. On September 9, 1913, respondent directed that this list be stricken from the files and withdrawn, and that a list of 400 qualified persons, to serve as jurors during the balance of the year, be filed by the board of jury commissioners. On September 17th the names of 400 persons were deposited in the jury box by the clerk. On October 8, 1913, the case of People v. Thomas E. Glinnan was again called for trial, and again relator interposed a challenge to the array upon several grounds, which challenge was overruled. Sessions of the court were held intermittently from the last-named date to December 17, 1913, when the array was exhausted. In the meantime 200 names had been added at the court's direction. On December 8, 1913, the prosecuting attorney made a motion for an adjourn