7 Kan. 50 | Kan. | 1871
Lead Opinion
The following opinion was filed by
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
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
“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.”
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,
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.
Concurrence Opinion
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
“ 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*67 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
The judgment of the district court is affirmed.