(dissenting.) I am unable to concur, with the majority of the court in the determination of this case. Referring to Section 1489, Comp. Laws, as quoted in the opinion of the presiding judge, our disagreement’is principally as to the proper interpretation and effect of the expression “the canvass of the votes-for such election,” for it is within twenty days from that event that notice of contest must be given. I am quite satisfied to accept as a starting point the definition of the word “canvass” as found by the presiding judge in Webster’s dictionary, to-wit, “close inspection to know the state of;” and, so substituting the definition for .the word itself, the expression, with its immediately preceding context, will be, “-within twenty days after the close inspection to know the state of the votes for such election;” and this, I think, is precisely the thought the legislature meant to and did express in said section. The can vass has exclussive reference to something which has already occurred, to-wit, the vote cast at such election; and its office and object are to ascertain and “know to the state of” such votes. It is provided by Section 1464, Comp. Laws, that immediately upon the close of the poll on election day the judges shall “proceed to canvass the vote,”— that is, ascertain the state of, — for to do this they shall (Section 1467) count and ascertain the number of votes cast, and the clerks shall set down in their poll-books the name of every person voted for, written at full length, the office for which such person received such votes, and the number he did receive.” The same section provides a form for this statement or return. When completed and certified to by the judges, one of such poll-books is to be inclosed and sealed, and delivered to the county clerk of the county in which such election was held. On or before the tenth day thereafter, the returns being all received by such clerk or auditor, (Section 1, c. 84, Laws 1890,) occurs the canvass for the county. The county board of canvassers shall consist of the clerk or auditor, if not a candidate, *587but, if so, “he shall take no part in the canvass,” and two other qualified county officers, selected as provided in said Section 1. These officers, called in Section 18 of said Chapter 84 the “board of canvassers for the county,” shall “proceed to open the returns from the various voting precincts in said county, and make abstracts of the votes in the following manner: The abstracts of the votes cast for governor [and other state officers, naming them] shall be on one sheet; * * * the abstracts of the votes for the members of the legislature and of county and precinct officers shall be on one sheet.” 8ec tion 2 of said chapter then provides that “each of the aforesaid abstracts of the votes made as aforesaid shall be duly signed and certified by the said canvassers, under the seal of the said county clerk or auditor, and shall be deposited in the office of said clerk or auditor.” This is all the statute directs or authorizes the board to do; and, having done this, the board and the canvassers have completed their work, and exhausted their powers as canvassers. The object of the canvass was to ascertain and show the state of the vote'. This has been done, the result of the vote fully and particularly exhibited, certified to, signed, sealed, and deposited in the clerk’s office; and the board is thenceforth functus officio. It then becomes the duty of the county clerk or the county auditor, as the case may be, ‘ ‘to make out a certificate of election to each of the persons having the highest number of votes for members the legislature, * * * and for county and precinct officers, repecttively, and to deliver said certificate to the person entitled to it,” etc.' But my brothers are of the opinion that the canvass is not complete until the canvassers have declared somebody elected to the various office to be filled, which, in my judgment, can only mean that the canvass is not complete until the canvassers have done something which the statute has not authorized them to do, and which they have no legal power to dó. The canvassers in this case, if the statute is allowed to define their duties, have nothing whatever to do with declaring which candidates are duly elected; and any delaration they might make in this respect would be assumptive and gratuitous. *588They are to make and certify a statement showing the condition of the vote, and the law itself does the rest by declaring that the person having the highest number of votes is elected. But suppose the law did in defining the duties of the canvassers —as it does in some instances — provide that they should declare which candidates were respectively elected, what would its plain intent and meaning be? Simply that they should declare which candidates, upon the canvass they had so made, had recived the highest number of votes, and so were duly elected. It certainly could not mean that they should declare somebody elected in case of a tie, for in such case the law says there is no election. If a decision and declaration by the canvassers that some candidate was duly elected were an essential and indispensible part of the canvass, then, in case of a tie, re quiring a new election, there never would be a completed canvass of the votes cast at the first election, for no candidate could be declared elected except as the result of the second election; or perhaps it would more logically follow that the first canvass was still open and incomplete until it included the second election, so that the board of canvassers might be able to declare who was duly elected, This latter conclusion seems palpably unreasonable, but why does it not legitimately and necessarily follow the theory of the. majority opinion? The determination by lot is but a substitute for anew election. The proceeding is just as separate from and independent of the first election as a new election would be. Or suppose the law had provided that in case of non-election in consequence of a tie the old incumbent should hold over, then there never would be a completed canvass, for nobody could ever be “declared duly elected.” Suppose upon complaint that the canvassing board in this case when properly organized had refused to make the canvass, mandamus were issued to compel such action, what would the writ command them to do? Unquestionably simply to examine and tabulate the returns as provided in said section, and certify to and file the abstract and a return that they had done this, would, in my judgment, be accepted by any court, as a full and complete answer to the writ. Or *589suppose, in this very case, the abstract showing a tie vote between appellant and. respondent, the clerk had neglected or declined to decide the tie by lot, as required by law; to whom would the mandamus be issued, and who would be commanded to perform this duty, — the board of canvassers or the clerk as an individual and independent officer? I think there could be but one answer to this question.
That the term “canvass’" was not intended to and does not include the decision by lot is made more cleai-ly manifest by Section 1471, Comp. Laws, changed in prase fiogy, but not in meaning, by Section 2 of said chapter 84, Laws 1890', which provides that “immediately after canvassing the returns and making the abstracts of votes as provided in this section the clerk shall,” etc. Now, the decision by lot is not provided for in this section, but subsequently, and stilL the canvassing is to be done as provided in that section, and all the requirements of that section are fully met long prior to the decision by lot. In my judgment, the canvass thus provided for is nothing more or less than an “official count,” and the same proceeding is distincly so called in the statutes of some of the states; and it was this official count or canvass, completed, verified, signed, and filed in the office o£ the clerk, showing the state of the vote, and that no sheriff was elected because two had received an equal and she highest number of votes, that made it necssary to adopt some other and further proceeding to fill such office; in this case, by statute, a determination by lut; in others, by statute, a new election. This determination by lot was just as sejiarate and distinct for the election as a new election would be. It does not assume to determine who was elected, for it is based by the statute itself upon the fact that neither was elected. It is simply a plan for deciding who, under the circumstances, shall be “declared elected,"" — who shall be deemed or taken to be elected, — preciselyas though, under the same circumstances. the law had required the governor to designate which of the two should be considered elected. The board of canvassers is an absolute stranger to the proceeding. In fact, when this drawing takes place, there is no board. It has disbanded, *590and is defunct. That the drawing is done by the clerk has, in my judgment, no important bearing upon the question. He may or may not have been one of the board of canvassers, and certainly in no case could he be the board itself. The construction of this statute must be the same if this decision by lot were to be made by some party who could not under any circumstances be a member of the board. I think my brothers feel themselves rather forced into their position by what appears to them the threatening inconsistency of requiring a candidate to give notice of contest before he knows that a contest in his interest will be necessary. He might win in “the decision by lot,” and then a contest would be unnecessary. This argument, it seems to me, can only follow a narrow and selfish view of the scope and spirit of the contest law. Offices are not created for the benefit of parties who may be temporarily entitled to hold them, nor are election provided for and held in the exclusive interest of candidates. If, in this contest, appellant is only representing his own individual interest, — his personal rights to the emoluments of the office, — I think it might well be argued that he is now estopped from asserting that he had received a plurality vote, because he had deliberately elected to take his chances with his competitor in a decision by lot, well knowing that such decision could only be resorted to if he had not received such vote. I would find the troublesome inconsistency not where my brothers find it, in the law itself, but in allowing a candidate to participate in a drawing by lot on the sole ground of a tie vote, and then, having lost, to assert there was no tie, but that he was entitled to the office by virtue of having received more votes than his competitor. In People v. Robertson, 27 Mich. 118, the court declined to apply the doctrine of estoppel, upon such facts, but plainly intimated that it was because the action was brought by the attorney general for the people that the conduct of the candidate ought not to estop the people, or preclude inquiry by them into the manner in which their election law's had been administered or their elections conducted. In my judgment, such practice can only be tolerated on the theory that the election contest law has a *591broader purpose and fuction than simply to secure the personal rights, and-protect the selfish interests, of the candidates themselves. The general public, more than any individual candidate or otherwise, has a paramount interest in the honesty and cleanness of election proceedings; and, in contesting the apparent result of an election on the ground that the will of the people has been thwarted by fraudulent votes which ought not to have been counted, other interests are involved, and ought to be considered,' besides those of the candidate himself; and while he, as such contesting candidate, is perhaps in position to subordinate public interests to his own by declining to expose the frauds by which the law and the general body of electors have been cheated and wronged until he has unsuccessfully experiment with an easier and cheaper method, based solely upon and provided by the law for the solution of an honest tie, I do not think the law should be ingeniously strained or expanded for the purpose of giving him a personal advantage as a reward for so doing.
But let us examine Section 1489 more closely. It plainly provides for two classes of contestants: (1) “Any candidate or person claiming the right to hold an office contested;” (2) “any elector of the proper county-desiring to contest the validity of an election, or the right of any person declared duly elected to any office in said county.” To determine the relation of the contestant to these contest proceedings it is necessary, first of all, to ascertain to which of these classes he belongs. Upon this question he leaves the court in no doubt. His notice declares that he was a candidate, and that he claims the office for himself on the ground that he received the highest number of legal votes cast; and he brings this contest on his own motion, and in his own name as plaintiff. Section 1491 provides that ‘such contestcannot be brought by an elector without the notice is signed by the district attorney of the proper county; or, upon his refusal to so sign said notice of contest, the contest may be allowed by the court or judge thereof. ” The notice is not signed by the district attorney, nor is the contest brought on leave of court or j udge. It is apparent that the contestant be*592longs to the first class, to-wit, “a candidate or person claiming the right to hold an office contested.” Dropping out, then, the words which only provide for and apply to the second class of contestants, to which appellant confessedly does not belong, the section reads thus: “Any candidate or person claiming the right to hold an office contested * * * shall give notice in writing to the person whose election he intends to contest within twenty days after the canvass of the votes for such election,” — that is, the votes cast at such election. In this case, what does the appellant assert as the ground of his contest? That he was duly elected sheriff, and claims the office by virtue of having received the highest number of votes, but that the canvassing board, by throwing out the returns from one or more voting precincts, has made it appear that he was not elected. When and how did they so make it appear? By their “canvass of the votes for such election.” Then, when must he serve his notice of contest? Within twenty days after such canvass; that is, the canvass which shows he was not elected, when in truth and in fact, as he alleges, it ought to show he was elected. This is his grievance. It occured then, and then commences to run the twenty days, within which he may institute a contest for its correction. Finally, I think the majority opinion is fairly criticisable in this respect: The expression “canvass of the votes” in connection with election proceedings is not an unusual one, and as such has a popular and generally accepted meaning, and was probably so used by the legislature. I think the opinion invents for and attaches to it a new and unusual meaning, and that, too, for the purpose of making the law cover and control a case not within the contemplation of the law-makers, and perhaps not within the purview of the law itself. The opinion says that an elector cannot serve his notice of contest until a person is “declared elected” and that could not be done in this case until the tie was decided, and consequently the elector must have twenty days from that event in which to serve his notice. But is the proceeding then and thus initiated a contest against “the person whose election he intends to contest?” In the light of the *593authorities, it can hardly be claimed that respondent received his certificate or is now holding the office because he was elected thereto, or by election, for the ststute only authorizes the ‘ ‘decision by lot” in case he ‘ ‘shall not be elected. ” I think he holds the office, not by virtue of an election, nor because he was elected, but by virtue of a subsequent and independent proceeding, made necessary by the fact that neither he nor his competitor was elected. As a result of these views, I think the order of the circuit court was right, and should be affirmed.