People ex rel. Saunders v. Hanna

Hooker, J.

Relator and respondent were opposing candidates for justice of the peace, the latter being declared elected. Upon quo warranto to try the title to the office, it appeared that respondent, upon the face of the returns, had a majority of three votes. It also appeared that 82 inmates of the Soldiers’ Home, admitted from other localities, voted at such election, and that it was impossible to ascertain for whom they had cast their votes. The relator had previously requested one of the inspectors of election to challenge such voters, but such inspector failed to do so, fearing a disturbance.

Under the holding of this Court in the recent case of Wolcott v. Holcomb, 97 Mich. 361 , the 82 persons referred to were not qualified voters; and, as it is impossible to ascertain which candidate received the greater number of votes, the vote of the precinct must be excluded. Attorney General v. McQuade, 94 Mich. 439 .

It is contended that the relator is estopped from attacking his opponent’s title to the office because he did not personally challenge these voters. It does not appear that he was present when these votes were cast, and he was not *517 bound to anticipate that disqualified persons would attempt to vote. As a precaution, he appears to have directed an. inspector to challenge any such votes that might be offered, ■ which indicates that he was not, as intimated, disposed to take his chances upon getting their votes, and then attack the election upon this ground if defeated.

The judgment will be affirmed.

The other Justices concurred.