Anthony v. Halderman

| Kan. | Jan 15, 1871

Lead Opinion

The following opinion was filed by

Brewer, J.:

This was an action brought under the provisions of Art. 29 of the code of civil procedure, by the plaintiff in error, plaintiff* below, to recover the office of Mayor of the City of Leavenworth, and to oust defendant therefrom. The petition was filed in the court below on the 4th day of June, 1870; and on the 2d of July, an answer was filed containing five grounds of defense. To the fourth defense plaintiff demurred. On the argument of the demurrer, the defendant suggested that the petition did not contain facts sufficient to constitute a cause of action, and asked the court to carry said demurrer back to the petition, and to sustain it thereto. This was done. The court found the petition defective, sustained the demurrer thereto, and no application being made for leave to amend, rendered judgment in favor of defendant for costs. Such judgment is now brought here for review.

The right of the court, upon suggestion, to carry the demurrer back and apply it to the first fault in the pleadings is conceded by counsel for plaintiff in error, as well as fortified by the abundant citations in the brief of counsel for defendant in error. Does the petition state facts sufficient to constitute a cause of action ? It alleges that at the election held in the city of Leavenworth on April 5th, 1870, said plaintiff and defendant were the only candidates for the office of .Mayor; that by the returns of the judges of said election made to the city council, it appeared that 1458 votes were cast for John A. Halderman, and 1406 for Daniel N. Anthony, and none for any other person; that afterwards a certificate of election was issued to said Halderman, who took the oath of office, and has since been acting as Mayor. ’ It further alleges that on the 30th of March, that being the day of registration, certain persons, laming them, in all fifty-three persons, were “ residents of said city, to-wit, of the “ fourth ward thereof; and that each of said persons was “ on said March 30th a free male person, over twenty- “ one years of age, a citizen of the United States, and “ had resided in said city more than six months, next “ prior to said March 30th, and was a colored person of “ African descent, with a preponderance of African “blood; but was, by reason of the premises, a legally “ qualified voter in said city in the ward in which he re- “ sided.” There is a similar allegation in reference ta seventy-seven persons, naming them, residents of the second ward. The petition alleges further, that these persons applied to register, were refused; applied to vote, tendering ballots with plaintiff’s name thereon for mayor, but were refused and their ballots rejected. It alleges that those ballots should have been received, and if received, would have given plaintiff a majority.

1. Qualifications ot electora. Do the facts thus alleged show that the persons named were qualified voters in their respective wards ? A A jf n0^ their registration and their ballots were both properly refused. The constitution, Art. 5, § 1, reads — ■

“Every white male person, of twenty-one years and upwards, belonging to either of the following classes, who shall have resided in Kansas six months next preceding any election, and in the township or ward in lohich he offers to vote at least thirty days next preceding such election, shall be deemed a qualified elector.”

2. h0 restriction color. The object and effect of the Fifteenth Amendment to the Federal Constitution were to place the colored man in the matter of suffrage on the same basis with the white. It does not give him the right to vote independent ot the restrictions and qualifications, such as age and residence, imposed by the State Constitution upon the white man. The colored man, to become a voter, as well as the white man, must be twenty-one years of age, six months a resident of the State, and thirty days a resident of the township or ward. That amendment operates no further than to strike the word “ white ” from the State Constitution. Now, this petition alleges that these persons were over twenty-one years of age, and had resided six months in Kansas, and six months in the city of Leavenworth, but nowhere alleges that they had resided in the ward in which they offered to vote thirty days prior to such election. Failing to show this, it fails to show that they were qualified voters, or that they were improperly refused registration, or that their ballots were illegally rejected, or that the plaintiff failed to receive all the legal votes to which he was entitled. For this reason the ruling of the court below in sustaining the demurrer to the petition was correct, and should be affirmed.

3. Former judgment, fv liar to new action, Again: The petition alleges that at the first meeting after the election the city council opened the returns, and it appearing therefrom that John A. Iialderman had received a majority of the votes cast, the plaintiff thereupon gave notice to the city council that he desired to contest the election; that the council fixed a time and place iot nearing such contest; that plaintiff served a notice of the grounds of such contest upon said defendant; that the council met at the time and place, and after hearing evidence offered by plaintiff, ruled that it could not inquire back of the returns of the judges, and ordered the city clerk to record the name of defendant as mayor, and issue him a certificate thereof. This amounts substantially to an allegation that plaintiff applied to the city council as a tribunal to hear and determine the contested election case between himself and defendant, and that that tribunal ruled adversely to his claim. Can he re-litigate that question elsewhere ? It is a general rule, which none will gainsay, that where any tribunal has jurisdiction of the subject-matter of and the parties to any controversy, and renders a judgment thereon, such judgment is conclusive between the parties. If the rulings of that tribunal are adverse to one party, and wrong, he should seek to correct that judgment by error or appeal. Failing to do that he is estopped from further inquiry. Nor would a failure to provide for a review of such rulings and judgment, by an appellate tribunal affect the conclusiveness of such judgment. There are many questions which the Legislature has wisely provided shall be finally decided by the tribunal having original jurisdiction. Section 15 of ch. 18, Gen. Stat., 1868, “An act to incorporate cities of the first class,” as amended March 2d, 1870, granting powers to the city council, empowers it, (Laws of 1870, page 103, clause 25,) “ To provide by ordinance for the election of “ city officers, and prescribe the manner of conducting “ the same, and the returns thereof, and for deciding “ contested elections in any manner not in conflict with “ existing -laws.

This section in terms empowers the city council to act as a board of canvassers, in which capacity it looks only at the returns of the judges of election; and also, when an election is contested to hear and determine such contest, and in that capacity can take testimony and inquire into any such wrongs and errors as by the general election law are grounds of contest. Tribunals for contested election cases are common to all States. We have one tribunal for contested elections of State officers; one for members of the Senate and House of Representatives; one for county and township officers; and by this section, and a similar one in the act to incorporate cities of the second class, one for city officers. But it is claimed that this delegation of power to the city council is void because the decision of a contested election case is an exercise of judicial power, and the constitution provides, .(Art. 3, §1,) that, “ The judicial power of the State shall be vested in a supreme court, district court, probate court, justices of the peace, and suck other courts inferior to the supreme court, as may be provided by law,” and the city council is not in name or fact a court. We think the error in the argument lies in the last proposition. True, this city council is nowhere in the charter, called a “ court;” but when sitting to hear and determine a contested election case it is pro tanto a court. Like any other tribunal created by our statutes to hear and determine contested election cases, it has power to subpoena witnesses, administer oaths, take testimony, and pronounce judgment. General Stat., pp. 422, 427. Malone v. Murphy, 2 Kas., 261: The State, ex rel., v. Sheldon, 2 Kas., 322.

But again, it is urged that the constitution gives original jurisdiction in quo warranto to the supreme court, and that the legislature have not power to limit or restrict that jurisdiction. It seems to us clear, however, that giving to this court original jurisdiction in no way restrains the legislature from giving like original jurisdiction to other tribunals. It would be different if exclusive original jurisdiction was given to this court. So also a different question would be presented if the legislature should attempt to vest exclusive original jurisdiction in some tribunal other than this. We see then no reason why this power may not be delegated to the city council. Having been so delegated, and the plaintiff having appealed to it and o iained its decision, we deem him concluded thereby.

For this reason also, the judgment of the district court should be affirmed.

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Concurrence Opinion

Valentine, J.:

I concur in the decision of the court in this case, but I do not concur in all that is said, in the written opinion of Mr. Justice Brewer. I do not tbinlr that the petition in the court below shows, as is claimed, that the subject-matter of this controversy had ever been heard and determined, by any judicial tribunal of competent jurisdiction, prior to the commencement of this action. The following is all that portion of the petition which states anything with reference to this matter, and it reads as follows:

“ The plaintiff further alleges, that afterwards, on the 7th day of April, 1870, the said city council of said city met, (it being the first meeting of the said city council after said election,) and proceeded to open the returns made to said city council by the judges of said election, as filed with the city clerk of said city, to ascertain the persons appearing by said returns to be elected to the various offices of said city, including said office of mayor; and it appearing by said returns that said John A. Halderman had received a majority of the votes cast at said election for the office of mayor of said city, and therefore to have been elected such mayor, the said Daniel "R. Anthony thereupon at said meeting of said city council gave said 'council notice that he desired to contest the election of the said John A. Halderman, and did then at said meeting, state in writing to the said city council, the grounds of his said contest, and prayed said city council to fix a time and place for hearing and determining said contest; and said council thereupon did fix upon the 9th day of April, 1870, at 7-|- o’clock p. m. as the time for hearing and determining said contest; and within twenty-four hours after filing with said city council his notice of said contest he served upon said John A. Halderman a notice of the grounds of his contest, with the time and place at which said city council would hear and determine the same. And plaintiff further alleges that said city council met at the time above designated, and that he attended before said city council to prosecute said contest but that said city council refused to hear and determine said contest; and after hearing evidence offered by the plaintiff touching the rejection by the judges of said election of the votes of the persons above named as hereinbefore stated and alleged, and the refusal of said board of registrars to register the names of said persons as hereinbefoi'e alleged, the said city council ruled and declared that they had no power or authority to decide upon the question of the illegality of the election for mayor as aforesaid, or whether the persons aforesaid were legal voters in said city or not, or whether the board of registrars should have put their uames upon the list of voters of said city, or whether any legal votes had been rejected by the judges of election at said election, or upon the effects and consequences upon said election of the rejection of any legal votes by said judges of said election, and could only decide and declare who appeared by said returns made by said judges of election to have been elected; and thereupon said city council ordered the city clerk of said city to record the name of John A. Halderman as the person elected mayor of said city at said election, and to give him a certificate of such election, which was accordingly done.”

There is nothing in the foregoing that shows that the city council of Leavenworth is a judicial tribunal for the determination of contested election cases; and there is nothing that shows that the council itself ever claimed to possess any such powers. On the contrary, it shows that the city council were a mere board of canvassers, simply ministerial officers, possessing no judicial power. Substantially the council themselves so determine and declare, and there is nothing in any part of the petition showing the contrary. They substantially decide and declare that they have no power except to count the votes returned by the judges of election, to declare who received the most of them, to declare who appears to be elected; and this is all they did. They did not attempt to act as a judicial tribunal; they did not attempt to go behind the returns of the judges of the election;' they did not attempt to decide as to the legality of the returns of the election; nor did they attempt to do any act that a mere board of canvassers could not legally do.. Then how can it be said that the questions involved in this case have ever before been adjudicated? Even if the city council could act in both capacities, if they could act both as a board of canvassers, and also act as a judicial tribunal for the trial of contested election cases, it would make no difference as far as this case is concerned, for in this case they acted only as a board of canvassers. But the claim that the plaintiff’s petition shows that the city council can ever act as a judicial tribunal has no foundation. The most that can be claimed is, that the petition is silent upou the subject. ■ Neither do the statutes in and of themselves make the city council a judicial tribunal. Section 15, (Gen. Stat., p. 132, as amended by laws of 1870, p. 97) of the act relating to cities of the first class, which is the only statute relating to this subject, provides that “ the mayor and council of each city, * * * shall have power * * * to provide by ordinance for the election of city officers, and prescribe the manner of conducting the same, and the returns thereof, and for deciding contested elections in any manner-not in conflict with existing laws.” It will certainly not be contended that because the mayor and council have power to provide for the election of city officers that therefore the city council alone must elect the city officers; and it should not be contended that because the mayor and council have power to provide for deciding contested elections, that therefore the city council alone constitute a judicial tribunal for the trial of contested -elections. When such tribunal is creatad it must be done by ordinance. It does not appear from the petition that the mayor and council have ever exercised their power, given them by the statute, of creating such tribunal. The council cannot exercise this power alone; they cannot alone, if they would, create themselves such judicial tribunal; to do so they require the aid of the mayor. The defendant alleges in Ms answer that an ordinance was passed, constituting the city council such tribunal; but the plaintiff in his reply denies the same; and hence we cannot assume, against the denial of the plaintiff, that any such ordinance was ever passed, or that it ever had any existence. The question of its existence is not a question of law. The court cannot judicially take notice of its existence. But the question of its existence is a question of fact which must-be tried by a court or jury, and be proved by competent and legal evidence, (Gen. St-at. 1868, 701, § 379,) the same as any other fact. Under the pleadings in this case, it must be assumed that no such ordinance ever existed, and therefore in the absence of such ordinance, that neither the city council nor any other board or persons could legally organize a judicial tribunal for the trial of a contested election.

Kingman, C. J., concurs with Valentine, J., in the foregoing opinion. By the Court:

The judgment of the district court is affirmed.