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the said board shall at once return the bal- | that no candidate of the party can be prelots thereto, carefully lock and seal same, sented to the electors at the November elec. and deliver the ballot boxes to the officer hay tion, then the court should hold the act ining the care and custody thereof. The re- | valid because incapable of being given effect. turns made by the said board of canvassers In no other way is the validity of the act, diupon such recount shall be deemed to be rectly or indirectly, questioned. correct, anything in the previous return from An analysis of the views of the able counsuch township, ward or precinct, to the con sel who have aided the court in briefs and trary notwithstanding. In all cases where, in oral arguments discloses few points of es. by reason of such recount, the petitioner suc sential difference. We have noted the sugceeds in establishing fraud or mistake suffi gestion, not pressed at the hearing, that the cient to change the result, the money de respondent board is not subject to judicial posited by him shall be refunded; otherwise direction or control with respect to the duties it shall be turned into the treasury of the and performance thereof devolved upon it by state, county or city, as the case may be. this statute. It was also said at the hearing If two or more candidates of the same politi that the conclusions which the court shall cal party are tied for the same office, the tie announce are advisory. If the court was shall be determined by lot to be cast then convinced that it had no jurisdiction in the and there as the canvassing board may di- premises, or that its orders were not capable rect.”
of enforcement, it would, without suggestion, Counsel for the respondent board and for deny jurisdiction, although relators have both relator Warner are agreed that the state of them asserted it. We have considered the board of canvassers may do those things, point. We are agreed that, while the state and those only, which the inspectors of elec- | board of canvassers is a constitutional body, tion may do in counting the votes. The board it is performing in this instance statutory determined, and ruled, over the objection and duties; its authority in the premises being protest of Mr. Warner, that it had authority | derived wholly from the Legislature. The to compare the poll list and the enrollment board (and so the members thereof) is by law list or book in each voting precinct for the charged with the performance of duties of purpose of ascertaining whether the persons | private and public interest and concern. The whose names appeared upon the poll list duties are not political merely, and performwere enrolled as Republican voters. If, up ance does not involve the exercise of powers on such inspection of the record, it appeared belonging to a co-ordinate branch of governthat one not enrolled as a voter, or one en- | ment. That performance of such duties may rolled as a voter of different political faith, be compelled is not open to question. And, had voted for either candidate, votes so cast | if a particular method of performance is were treated as illegal votes, not entitled to pointed out by the Legislature to reach a rebe counted. The effect in the particular sult which is also clearly indicated, that case stated in the petition was this: It ap- | method should be pursued, especially in cases peared from a certified copy of the enroll where pursuing a different method would or ment book in the office of the Secretary of might involve a different result or no result State that in one township certain persons, at all. The exercise of certain powers hav. to the number of 11, had enrolled on Augusting been provided for, the exercise of others 31, 1908, which day was not a legal enroll- | not incidental or necessary to the exercise of ment day. We assume, although it is not | those expressly given is forbidden. It is too so expressly averred in the petition, that | late to deny the power and the duty of the these same persons as appeared from the judiciary to restrain such public officers perpoll list voted at the primary. They also forming such duties to the exercise of powers found by a similar comparison that three lawfully conferred to the use of means erpersons, enrolled as Democrats, voted at pressly indicated. In principle the point is said primary election as Republicans. They ruled against the suggestion which is made drew from the box indiscriminately 14 bal- by Rich v. Board of Canvassers, 100 Mich. lots. They proceeded to count the remaining | 453, 59 N. W. 181. ballots. It is the contention of Mr. Bradley Aside from the matter of jurisdiction, counthat the board has authority to compare the sel are agreed that the question presented is enrollment book and the poll list as it did primarily one of construction of the statute. do, but that it should have refused to count | In what has been said we have indicated the remaining ballots for either candidate our view of the proper and necessary meanunless the legal vote cast in the precinct was | ing of the law. The controlling language of made to appear. He further contends that the statute is: “Any candidate * * * who the board may, and should, go behind or out- conceives himself aggrieved on account of side of the enrollment book and receive, and fraud or error by the board of primary election use as a basis for its conclusions, parol and inspectors, in the count of the votes cast, or other evidence of illegal enrollment and il- | the returns made by said board, may * * *. legal voting. It is urged that, if the conse Said board [respondent] shall * * open quences of thus securing the legal rights of the baliot boxes * * * and make a recount an aggrieved candidate and the political | thereof * * * and make a correct and rights of the electorate is a delay so great complete return in writing showing the full number of votes cast and the names of the , if the Legislature had made no provision for candidates and the number of the votes given an appeal from the decision of the various to each.” We find no ambiguity here. It is boards of election inspectors. Holding, as we fraud or error by the board of inspectors in do, that the respondent board may lawfully the count or in the return which may be in do no more than recount the votes and devestigated. What is provided for is a re- | clare the result in accordance with such count-another count-of the ballots. It count, it follows, as was indicated early in seems to be conceded that neither relator oc this opinion, that the powers conferred by cupies the position de facto or de jure of a the act are ministerial, and not judicial. It public officer, and that an inquiry now or remains to apply the ruling to the facts. It hereafter in the nature of quo warranto pro is a mistake to suppose that the inspectors ceedings cannot be instituted by a candidate.
of election at a general or primary election In short, the finality of the determination of
may look beyond the poll lists and the balthe respondent board is admitted. While
lots in the proceeding to count the votes. counsel for Mr. Bradley find in the act sup
There is no provision of the law, to which port for their contention—the essence of the
we have been referred, which permits the reasoning employed by them is that by force drawing out of ballots, except when it apof a supposed, we may say a presumed, gen
pears that they exceed the number of ballots eral intention of the Legislature to secure as
cast as shown by the poll lists. The enrolla final result an honest expression of the
ment book is to the primary election what electorate the court is driven to the neces
the registration list is to the general election. sity of finding in the act security for such an
It is supposed that no man will vote at either expression. If the language employed by the
election unless there is found, or is presently Legislature was ambiguous, if upon it and
made, record evidence of his right to vote. the general purpose of the act an implication
Such a record cannot be reviewed or changed could be raised that the respondent board
for the purpose of affecting the count of the had power to do something more than the act
votes actually cast. And it was held in May appears to provide fo' doing, and if it were
v. Board of Canvassers, 94 Mich. 505, 54 N. necessary, in order to make the legislation
W. 377, in considering action of a canvassing effectual, to indulge such an implication, then
board under a statute, the provisions of the possible or probable effects of differing
which were broader than those now under interpretations might be, and ought to be,
consideration, that the board had no power considered, and the result of such a compari
to compare the registration lists with poll son of results might be controlling of the
lists for the purpose of determining whether proper interpretation. We have no such case.
the votes of nonregistered persons had been We do not find ambiguity in the language of
received. We are of opinion that the rethe act, nor any necessary conflict between
spondent acted beyond its powers in a similar the general purpose of the legislation and the provision for a recount of votes. We find a
use of the enrollment list and in withdrawing provision for a recount of votes for doing
from the ballot box of the township of Oliver again what the inspectors of election have
14 ballots, and that for anything made to done. This conclusion is supported by a
appear such ballots should be counted as consideration of other provisions of the law.
cast. The fixing of dates for enrollment, and for
Mr. Justice MCALVAY assumes in his opinthe primary election, with reference to the
ion that the record of the party enrollment constitutional general election day, is indica
is the only basis for determining the fact tive of the legislative conception of the pow
that a candidate for governor has received ers and duties of the respondent in the prem
the required 40 per cent. of lawful votes cast ises. But beyond this the object of the legis
at the primary election. In this we think he lation, which is to secure direct voting for
is in error. It is 40 per cent. of the vote candidates for public office, could not be, in
cast at the election which is required, a fact, accomplished if the inquiry proposed
fact to be determined by the state board of could be entered upon. Upon well-settled canvassers, if no recount is demanded, from principles courts will decline to nullify a the returns. It is manifest that, in the abstatute by construction unless the duty so to sence of a contest between candidates, no redo is clear.
course would be made by the board to the The court is not insensible to the argument
| record of enrollment. There would be before that, unless the state board of canvassers ex the board nothing with which the record of ercises powers beyond those imported by the enrollment could be compared. Whether, if words employed in the statute, a defeated there is a contest, the record of enrollment candidate may have no redress, a successful
should be examined, depends, therefore, upon candidate may profit by illegal acts of voters the construction of section 41 of the act. and inspectors, and the will of the party
The writ applied for by relator Bradley is electors, legally expressed, may be legally re denied, and the writs applied for by relator versed. Every experiment in popular govern Warner are both of them granted. The good ment bas its attendant dangers. No individ- | faith of the respondent board is in no manner ual or public right would have been infringed questioned, and we assume it will be un
necessary that either writ shall actually | to my mind that the party enrollment is so issue. No costs will be awarded.
carefully safeguarded by this statute be
cause the Legislature knew that the success GRANT, C. J., and BLAIR, MONTGOM- | or failure of this legislation depended upon ERY, HOOKER, and MOORE, JJ., concurred. it. If party lines could be unlawfully invad
ed at the ballot box by outsiders on primary MCALVAY, J. (dissenting). I am not able election day without any possible check or to agree with the majority of the court in redress, this last condition of party politics the conclusions arrived at in the opinion
would be much worse than the first. filed.
It appears to me that the Legislature has I think that the distinction which seems to provided both the check and the redress me very clear between recounts in election the first by the party enrollment; the second cases and this case under the primary elec by the recount. It is not contradicted that tion law has been lost sight of. The plain no one could vote except he was lawfully intent of this law was to correct abuses | enrolled or entitled to enrollment in the party which had arisen under the convention sys to which he claimed fealty. The statute pro tem of making nominations, and give the vides the record to be duly made if he is enindividual member of a political party an op rolled on election day. I insist that this portunity to make his selection of candidates record (the party enrollment) is the only aufor office on his party ticket, and to have thority for receiving the party votes, and that selection counted as made by him. It the only basis upon which may be determined was to remove all improper influence and the fact that a candidate for governor has manipulation from primaries and conven received the required percentage of all the tions, and to permit a political party to se lawful votes cast by his party for that office. lect its candidates as a distinct political or The general election laws of the state are ganization unassisted by zealous and willing applicable to a primary election where such members of other parties. As a basis to this laws or their construction already given will intended reform, party enrollments are pro- | not contravene the plain provisions and invided for, recorded in books furnished by tent of such law, but to no greater extent. the Secretary of State. Days upon which The general election laws know nothing such enrollments may be lawfully made are about parties except as printed upon a comfixed. All of this, including all corrections, mon ballot. The primary law is based enchanges, new enrollments, are made a matter | tirely upon party recognition. Under the of record in the office of the Secretary of general election laws, an individual is given State. No one may lawfully vote at any pri his remedy by quo warranto to try the title mary election who is not lawfully enrolled to an office to which he claims to be entitled. in the enrollment of the party to which he Under the primary election law, the party belongs or with which he affiliates. This and the individual can only know whether enrollment is not for all its uses and pur- a lawful nomination has been made by harposes identical with a registration of voters. ing recourse to a recount, and the legality It performs some of the functions of a book of the votes cast for the candidates of a of registration; but it has been adopted for party can only be determined by the party other and different purposes. Its primary enrollment, which has been made the basis object is the separation of the voters in each of the proceeding from the beginning. precinct into the parties to which they be The case of May v. Board of Canvassers. long, and to maintain such separation ab 94 Mich. 505, 54 N. W. 377, which is relied solute and complete, and to prevent any one upon as determining this case is distinguishvoting for party candidates not lawfully au able, first, because the party had all the remthorized so to do. This enrollment or a cer edy to redress his wrong by quo warranto; tified copy is before the inspectors of elec and, second, because it was an election to an tion of every precinct and the several can office, and not a party primary, and the regvassing boards of the districts and state. istration excluded was not identical with the It is intended to be the preserver of party party enrollment. It was not before the cansolidarity. The right to be declared the vassing board, and could not be there lawnominee of a party to a certain office is not fully. From it the board was not required, the right to an office or a franchise, nor is as in the case at bar, to determine that a it a constitutional right. But the machinery candidate had received 40 per cent. of all the furnished by the Legislature for the pur votes lawfully cast before such candidate pose of permitting the electorate of the differ could be declared nominated for the office of ent parties to confer such rights upon some governor. I think the argument is captious of its individual members is within the pow which confines the work of the board to ers given the Legislature under the Constitu merely counting the votes in the boxes. The tion. The people have the right to have this statute means the counting of the lawful machinery so operated that the plain legis votes cast, and the enrollment is the only lative intent shall be given effect; hence the guide which points out such votes. I also importance of a correct determination of the consider that the argument that sufficient important question here involved. It is clear | time does not intervene in which the respond.
ent board may complete its recount of no 1 tends into the bay; that, assuming that the force. No such presumption arises, and no line of navigable water was outside of the in
Der bay, all lines must converge to the distance facts appear to create it. To me the view
between headlands, the corners of abutting parof this statute taken by the respondents is a cels to furnish starting points for each parcel, rational one. By it nothing is considered and the line between the headlands to be taken except such matters as are of record, and, in
as a base line to which the various lines must
converge; that, there being lands from which fact, before them. They are vested with the
a straight line could not intersect such base same powers as the several boards of in line, other inner base lines should be establishspectors in so far as said inspectors have ed; that the center of the shore line was to be acted within the law, and, if said inspectors
taken as a point to which lines from the head
lands should converge and meet, lines from the have unlawfully allowed votes to be cast by
shore to run to these inner base lines, striking men not lawfully enrolled, respondents may the same at points proportionately the same disand should correct such unlawful action by
tance apart as on the shore line, and the prodrawing out the surplus votes. Other errors
cess to be repeated in running the lines between
the base lines. pointed out by the general law the board have authority to correct. No authorities in Appeal from Circuit Court, Arenac Counlike cases have been furnished by counsel. ty, in Chancery; Nelson Sharpe, Judge. Primary election laws are of recent growth. Action by John Stuart against Joseph The utmost care should be taken in their con Greanyea and others. From a judgment, destruction, and to give them effect if possible, fendants appeal. Cause remanded, with dior to point out clearly and logically the rea rections. sons why such effect cannot be given.
Argued before GRANT, C. J., and HOOKIt seems to me that the logical conclusion ER, MOORE, CARPENTER, and MCALVAY, of the majority opinion is to hold the statute invalid and incapable of being made effective
S. E. Hayes (De Vere Hall and E. V. Ingerto carry out the plain legislative intent. A
soll, of counsel), for appellants. W. C. Cook, well-settled principle of statutory construc
for appellee. tion is that effect will if possible be given to the legislative intent. In this case, to give such intent effect and save this remedial leg.
HOOKER, J. The parties to this suit own islation and make it workable requires no
adjoining premises, bordering Saginaw Bay. strained construction. It only permits the of.
The complainant's bill was filed to enjoin deficers to use the material put into their hands
fendant from fishing with set nets within by the Legislature with the clear intent that two miles of the shore at a place alleged to it should be used.
be in front of complainant's land, and in The prayers of the petitioners in both which he had riparian rights, and defendcases should be denied.
ant had not. The defendant has appealed.
Appa rently it is claimed by counsel for both parties that fishing in the Great Lakes
was in common until the enactment of Act STUART v. GREANYEA et al.
No. 94, p. 159, Pub. Acts 1869. That was a (Supreme Court of Michigan. Sept. 10, 1908.)
statute which prohibited the placing in wa1. NAVIGABLE WATERS–RIPARIAN RIGHTS.
ters where fish are taken by the legal owner Riparian rights in the Great Lakes do not
or occupant of adjacent lands any ship balextend beyond access to navigable water. last, stone, sand, coal cinder, ashes, log slabs, 2. SAME.
decayed wood, bark, sawdust, or obstruction Every shore owner has a right of access to
or filth of any other description, or placing navigable water, subject to a general right of navigation.
or driving any pound net piles or stakes or 3. Same-WHARVES, DOCKS, AND PIERS. any other piles or stakes or posts, or build
The general rule is that frontage on navi ing any platforms or pier or any species of gable waters for wharfage is proportionate to seines or continuous trap nets to the extent the extent of shore frontage. 4. SAME-FISHING-STATUTES-CONSTRUCTION.
of the breadth of such legal owner or occuPub. Acts 1905, p. 170, No. 122, prohibits
pant's lands so far as the channel banks of any person from driving, for the purpose of rivers, and to one mile from the beach or fishing, any stakes or setting any nets in the shore, at low-water mark of the lakes, straits, waters of Saginaw Bay contiguous to the shores of Arenac and Iosco counties for a distance of
inlets, and bays or said waters fronting such two miles from said shores, unless such person is
owners' or occupants' lands, and subjecting the lawful owner or occupant of the shore front any boat owner or captain to punishment who age opposite to which such stakes are driven
should willfully run into or molest any or nets set, etc. At each end of an inner ba v forming part of Saginaw Bay was a pronounced
pound net, etc. In 1905 an act was passed cove, owing to the existence of two promontories prohibiting any person for the purpose of extending towards the east and southwest, re- fishing from driving any stakes or setting or spectively, so that the shore of the bay was
placing any nets in the waters of Saginaw much longer than the distance between the headlands at the entrance. Held, that the intent of Bay contiguous or adjacent to the shores of the statute was to confine the right of each Arenac and Iosco counties for a distance of owner of land bordering on the bay to the lim
two miles from said shores, unless such perits of pre-existing riparian rights, and to the rules applicable to the determination of such
son is the lawful owner or oçcupant of the lipiits, except as to the distance the right ex- | shore frontage opposite to which said stakes
are driven or nets set or placed, or unless nounced cover, owing to the existence or two such person shall have a license to do so promontories or capes that extend toward from said owner or occupant. Section 2 the east and southwest, respectively. The made the act penal, and also provided a civil easterly one is called “Green's Point," the liability, damages to be recovered by such westerly “Pine River Point." The testimony owner, occupant, or licensee in an action of convinces us that a bar opposite or immetrespass. See Act No. 122, p. 170, Pub. Acts diately in front of the entrance of the cut de1905.
flects the main channel from the cut toward Assuming that the law is constitutional and Green's Point, and that the fish as a rule gives exclusive rights—questions not before follow this channel. The defendant before us on this record—it is only necessary to the filing of the bill has at times set his nets decide where the line separating rights under across the entire front of the complainant's it should be located in Wigwam Bay, for lands, but we understand that he now claims there is nothing indicating a necessity that only the right to extend his nets from the it be settled for the entire two miles, unless center of Wigwam dredge cut at the outlet, it shall be found necessary to do so in order south six degrees east, into the bay, for a to determine its location in Wigwam Bay. distance of two miles, and that his nets were We think it is not. We attach a map to this' so set at the time of the hearing. On the
opinion. The lands of the parties are upon other hand, the complainant contends that sections 35 and 36, and the boundary line be- the line should be ascertained by finding the tween them is at or near the center of what center line of Saginaw Bay, and running is called “Wigwam Dredge Cut,” shown on a line at right angles therewith to the boundthe map by a heavy black line, a short dis ary line between the parties' lands, or, if tance east of the section line between the that is not the rule, such line should be run sections named. This cut was made for the | at right angles with the line of navigable purpose of floating logs, and it is our under water; i. e., the line separating the blue and standing that it extends from Rifle river to green water where the depth is about 16 feet, Wigwam Bay, and is a short cut for bringing | some distance outside of Wigwam Bay. If logs from the river to the mills on that bay, defendant's contention is correct, viz., that and that fish are in the habit of going through he has an exclusive right of fishing, the enthe çut, on their way to the river, during tire width of his land for two miles out it is the spawning season. Wigwam Bay, so call- obvious that every other proprietor cannot ed, has an area of something over two miles. have a similar right, for the reason that the It is shallow, and at each end there is a pro- opening of the bay is not wide enough to