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To notify opposing candidate and investigate.

To open ballot boxes.

(274) § 3672. SEC. 11. Upon filing the petition and making the deposit required in the preceding section, and giving at least twelve hours' written notice thereof to the opposing candidate, by handing to such candidate a copy thereof, or, if such candidate cannot be found, by leaving such copy at his last place of residence, but no notice shall be required upon any petition filed for a recount of the votes cast for or against any constitutional amendment or any other proposition, it shall be the duty of such board of canvassers to investigate the facts set forth in said petition. For such purpose the said board shall have power to cause the ballot boxes used in such election districts to be brought before it. The board shall, thereupon, in some public place where such candidates or persons interested in such proposition, and their counsel may be present, if they so desire, proceed forthwith to open the ballot boxes from such districts, townships or wards, and to make a recount thereof as to such candidates, and make correct and full return in writing under its hands to said board, showing the full number of votes given, the names of the candidates, and the number of votes given to each, and the number of votes cast for and against constitutional amendments or other propositions, written out in When recount Words and figures as upon the ballot. As soon as the recount is completed. is completed, said board shall at once return the ballots to their respective boxes, carefully fasten and seal the same, and deliver them to the officer having the care and custody thereof. The returns made by the said board of canvassers upon recount shall be deemed to be correct, anything in the previous return from such township, ward or district, to the contrary notwithstanding.

Certiorari to circuit court.

Am. Id.

See citations under previous section.

Sinclair v. Grand Rapids Com. Council, 181/186.

(275) § 3673. SEC. 12. Any candidate not receiving a certificate of election, or any qualified elector voting at the last preceding election where the constitutional amendment or any other proposition has been voted on, may, for error apparent upon the face of the returns, have the same examined and corrected upon certiorari to the circuit court of the county, according to the rules and practices applicable Where fraud, to such rights. In all cases where, by reason of such recount, the petitioner succeeds in establishing fraud or mistake as set forth in his petition, and receives a certificate of election, or the majority of the votes cast is increased and changes in favor of the petitioner, the money deposited by him shall be refunded. For fraudulent or illegal voting, or tampering with the ballot boxes before a recount by the Quo warranto. board of canvassers, the remedy by quo warranto shall remain in full force together with any other remedies now existing.

etc., is established.

Am. Id.

elections.

(276) § 3674. SEC. 13. The provisions of this act shall Act to apply apply to special elections to fill vacancies in any of the offices to special mentioned in section four of this act, and at all elections at which any proposition shall be submitted to the electors of any county.

Section 14 repeals "all acts or parts of acts contravening the provisions of this act."

SPECIAL CANVASS FOR STATE SENATOR AND REPRESEN-
TATIVE TO FILL VACANCIES.

An Act to provide for a special canvass of votes cast in elections to fill vacancies in the office of state senator and representative held during a session of the legislature.

[Act 24, P. A. 1895.]

The People of the State of Michigan enact:

to meet.

(277) § 3691. SECTION 1. That in case of a special elec- Board of cantion held to fill a vacancy in the office of state senator or of vassers, when representative in the state legislature during a session of the legislature, the board of county canvassers shall meet on the Thursday next succeeding the day on which the election is held, and the board of district canvassers shall meet on the succeeding Saturday, and shall make the canvass and declare the result of such election as now provided by law in case of general elections in this state.

CORRECTION OF FRAUDS AND ERRORS IN RETURNS.

An Act to provide for the correction of frauds and mistakes in the canvass and returns made by inspectors of elections.

[Act 208, P. A. 1887.]

The People of the State of Michigan enact:

correction of

etc.

(278) § 3725. SECTION 1. That any candidate voted for Petition for at any election, conceiving himself aggrieved on account of canvass, to any fraud or mistake in the canvass of the votes by the in- whom made, spectors of election, or in the returns made, may (within three days after the conclusion of a township canvass, if a township office) or on or before the close of the last day upon which the board of city canvassers meet, if a city or ward office, or board of village canvassers, if a village office,

ing amount of deposit.

When board

of canvassers

to make vestigation.

Clerk to call meeting of board.

present to and file with the clerk of such board a written petition, which shall be sworn to, setting forth, as near as may be, the errors, mistakes or frauds complained of, and the township, ward or village in which they occur, and asking for a correction thereof. He shall at the same time deposit with the clerk of said board the sum of ten dollars for each and every township, ward or village referred to in his petition: Proviso, limit- Provided, That no candidate shall be required to deposit more than one hundred dollars, which sum shall be paid in case such petitioner does not establish a fraud or mistake, as set forth in his petition, by the clerk of the board of city canvassers, to the city treasurer for the use of the city and by the clerk of the village to the village treasurer and by the township clerk to the township treasurer for the use of the city, village or township, as the case may be. Upon filing such petition, making such deposit and giving at least twelve hours' written notice thereof to the opposing candidate by handing to such candidate a copy thereof, or if such candidate cannot be found, by leaving such copy at the last place of residence, it shall be the duty of such board of canvassers to proceed to make an investigation of the facts set forth in said petition. For which purpose the clerk, if no meeting be already appointed, shall call a meeting of such board of canvassers and the said board shall have power to cause the ballot boxes used in such election districts to be brought be fore them. The said board shall thereupon appoint a committee of their own number as follows: The said board shall designate a member who shall be the chairman of said committee, the candidate presenting such petition and the candidate opposed thereto shall each choose a member, and if such candidates, or either of them, decline to choose a member, then the board shall designate, and the three thus chosen shall constitute a committee to investigate the errors, mistakes or frauds complained of. Said committee shall, in some public place, where such candidates and their counsel may be present, if they so desire, without unnecessary delay proceed to open the ballot boxes from such village, townships or wards, and to make a recount thereof as to such candidates, and make correct and full returns in writing under their hands to said board, showing the whole number of votes given, the names of the candidates, and the number of votes given to each, written out in words and figures as upon the ballots. Said committee, upon making such recount, shall at once return the ballots to their respective boxes, carefully fasten and seal the same and deliver them to the officer having the care and custody thereof. Said board of canvassers, upon receiving the report of such committee, shall accept the same as correct, anything in the previous declaration, certifi cate or returns from such township, ward or village to the Appeal to cir- contrary notwithstanding. Any candidate not receiving a certificate of election, may for errors apparent upon the face

How committee on investigation appointed.

Committee to make recount of ballots.

Ballots to be returned to boxes.

Report of

committee to be accepted

as correct.

cuit court.

to be returned

of the returns have the same examined and corrected upon certiorari to the circuit court of the county, according to the rules and practice applicable to such writs. In all cases When deposit where, by reason of such recount, the petitioner succeeds in to petitioner. establishing a fraud or mistake, as set forth in his petition, and receive a certificate of election, the money deposited by him shall be refunded. For fraudulent or illegal voting, or Remedy for tampering with the ballot boxes before a recount by the board voting, etc. of canvassers, the remedy by quo warranto shall remain in full force, together with any other remedies now existing.

fraudulent

ment subject

The usual final adjournment of a township board of can- Final adjournvassers shall be deemed subject to the recall of the board as to recall. herein provided.

PURPOSE OF THE LAW: It was intended by this act to give a party aggrieved by the action of the inspectors of election and the board of city canvassers the right to a recount of the votes cast for and against him for the office for which he was a candidate, in the first instance at least, if he should desire it, without resort to proceedings by quo warranto.-McKenzie v. Canvassers, 70/151; May V. Canvassers. 94/510. The evident purpose of this act was to provide for a recount antecedent to the determination by the county canvassers of the number of votes cast for the office as to which the recount is applied for. It was clearly intended that, in case of various contests arising before the board, different committees could be appointed and the count in all cases proceed at once. The board acting on a contest may well be held to constitute a special tribunal, when in session, only for the purpose of considering such contest. It was not the legislative intent that a presentation of the application to the body, when so acting, and after a full performance and determination of the result as to the candidates for other offices should entitle the party presenting such petition to a recount -Newton v. Canvassers, 94/458. Electors are not to be deprived of the result of their votes by the mere mistakes of election officers which do not appear to have affected the result. But, on the other hand, where fraud appears upon the part of the inspectors, the voter must sometimes be deprived of his vote; and this must always be the case where mandatory provisions of the election law are disregarded, if the result would be thereby changed. Att'y Gen. v. Stillson, 108/419. The board of convassers, on return of the report of a recount committee appointed under this section, are under no duty to correct errors of the committee not shown on the face of their report.-Atwood v. Sault Ste. Marie, 141/295.

The only way to try titles to office finally and conclusively is by quo warranto.-Frey v. Michie, 68/324. Lachance v. Mackinac Co. Canvassers, 157/

679.

Where respondent, a candidate for election as supervisor, was also a member of the board of election canvassers, and signed the report of a recount declaring respondent elected, but a majority of the board without counting respondent signed the report, it was valid and conclusive of the facts stated therein. Miner v. Beurmann, 165/672.

ENFORCEABLE BY MANDAMUS: The right to a recount, upon compliance with the provisions of this act, is enforceable by mandamus.-May v. Canvassers. 94/510; McKenzie v. Canvassers, 70/147; Packard vassers, 94/450.

v. Can

APPLICATION TOO LATE: An application by a candidate for supreme judge to a board of county canvassers under this act made on the last day on which the state canvassers can canvass the returns and issue the certificate of election, is not in time.-- Newton V. Canvassers, 94/455; Drennan v. Com. Council, 106/117.

WHEN ACT DOES NOT APPLY: This act and the next following do not apply in the case of members of a common council in a city whose council is made the sole judge of the election of its members.-Weston v. Probate Judge. 69/600; Naumann v. Canvassers, 73/252; Aud. Gen. v. Supervisors. 89/567; Hilton v. Grand Rapids Co. Council, 112/500. But these acts apply in cases where the council is not made by the charter the judge of the election and qualification of its own members. McKenzie v. Canvassers, 70/147. These acts do not apply to the office of state senator.-Wheeler v. Canvassers. 94/448. Nor congressmen.--Belknap v. Canvassers, 94/516. Nor circuit judge.-Vance v. Canvassers, 95/462.

EFFECT OF RECOUNT MADE: When the board has recounted and declared the result, it becomes functus officio and the remedy of the party claiming to be aggrieved is by a quo warranto proceeding to test the validity of the election.-Packard v. Canvassers, 94/451.

VOTING MACHINES: Application of this section when voting machines are used.-Trumbull v. Bd. of Canvassers, 140/537.

See also Lamoreaux v. Att'y Gen.. 89/146; Johnson v. Bd. of Canvassers, 101/191; Keith v. Wendt, 144/49; Ward v. Culver, 144/57, 71; Wheeler v. Coleman, 176/285.

Petition to

probate judge of candidate intending to contest election.

PRESERVATION OF EVIDENCE OF ERROR OR FRAUD.

An Act to preserve evidence of error or fraud in the counting of ballots and in elections [election] returns, and in the count of inspectors of elections [election] and the declaration of the board of canvassers in contested elections.

[Act 293, P. 1887.]

The People of the State of Michigan enact:

(279) § 3726. SECTION 1. That any candidate voted for at any election in this state intending to contest the same, may, after the decision of the board of canvassers and without waiting to commence quo warranto proceedings, by petition to the probate judge of the county in which the election is held, cause the ballot boxes, or such number of them as he may specify in his petition, to be brought before the board of examiners created by section six of this act, and by said Proviso as to board to be opened and the ballots therein counted: Profiling petition. vided, That at the time of filing such petition he shall deposit thirty dollars with such judge of probate, which amount shall be disposed of as hereinafter provided.

What petition shall set forth.

See notes to preceding act. The supreme court has held this act too defective to be executed, unless by common consent.-Andrews V. Probate Judge, 74/278.

PETITION :

The petition must show whom the canvassers have decided to be elected in order that notice of the contest may be given him.-Andrews v. Probate Judge, 74/278.

This act does not apply to a city whose common council is charged with the duty of canvassing the votes cast for, and given the exclusive right to determine the election, and qualification of, the officers whose election is sought to be contested, which duty it has discharged, and right exercised, without objection by any one. Weston v. Probate Judge, 69/600; Naumann v. Board of City Canvassers, 73/252.

See Hilton v. Gd. Rapids Com. Council, 112/501.

(280) § 3727. SEC. 2. Said petition shall set forth that the petitioner was a candidate for the office claimed by him, and by him intended to be contested, and that he received votes therefor; that he has good reason to believe and does believe either

First, That there was error or fraud in the count or in the returns of the inspectors of elections; or,

Second, That there was error or fraud in the count or determination of the board of canvassers; or,

Third, That there was error or fraud in both, and that it is his bona fide intention to contest the count and returns of the inspectors of election, or the count or determined result of the board of canvassers of said election, or of both, and further stating that he believes that unless the ballot boxes are opened and the ballots therein counted without unnecessary delay his rights will be jeopardized. Said petition shall be in writing, and shall be subscribed and sworn to by the petitioner, or by some one in his behalf, and a copy thereof

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