Golden v. Elliott

13 Kan. 92 | Kan. | 1874

The opinion of the court was delivered by

Brewer, J.:

On the 15th of February, 1871, a county-seat election was held in Labette county. No place received a majority of all the votes, and on February 28th, 1871, a second election was held to decide between the two places having the highest number of votes. At such election the returns showed a majority in favor of Labette City. On the 3d of March, 1871, the judge of the district court issued a restraining order against the commissioners of said county, restraining them from canvassing the votes, proclaiming the result, or removing the county offices to Labette City. The petition therefor alleged fraudulent voting in favor of Labette City at both elections. Such restraining order yet remains undisturbed and in full force. In April, 1873, certain electors of Labette City presented to the district court of said county a petition for a writ of mandamus to compel the different county officers to remove their offices to Labette City. Such petition simply alleged the two elections, the result of the votes, and the failure of the commissioners to canvass and declare the result. The district court refused the writ, and now plaintiffs in error seek a reversal of that order.

Several questions are discussed by counsel in their briefs. We rest our affirmance of the ruling below upon one point. The writ of mandamus, originally a prerogative writ, and solely within the discretion of the court, still so far partakes of its original nature that the court may exercise a considerable degree of discretion in granting or refusing it. (The State, ex rel. Wells, v. Marston, 6 Kas., 537.) Can we say that the district court abused its discretion in refusing this writ? Immediately after a county-seat election an injunction is issued restraining any canvass of the votes, and any removal of the county offices, on account of the fraudulent manner of the election, and the fraudulent voting in favor of the apparently successful place. Eor more than two years the whole community seems content with that decision. Even the citizens of the place apparently successful claim no rights by virtue of such election. This seems very strange, considering the eagerness with which ordinarily a county-seat is sought, and the vehemence of the efforts made to secure or retain it. The records of this court abundantly show how important this question is considered. Such remarkable indifference argues either a consciousness of the truth of the charges, or a conviction that the changes of population, or of the facilities of travel, render it for the best interests of the county, as a whole, that the county-seat remain where it is. We do not mean to assert that this lapse of time has operated like a statute of limitations, and absolutely cut off all rights; nor that a similar lapse of time in an older and more permanently settled community ought to have the same influence upon the discretion of a court. It must be remembered that this county has been but lately opened to settlement, and that population has recently and rapidly been flowing into it. Less than two years may have materially altered the centers of population and wealth, as well as the means and facilities of communication, and it may well be that the community generally prefer that the county-seat remain undisturbed. At any rate, when the local court, familiar with the condition of the county, refuses a writ of mandamus to remove the county offices, and nothing but the naked facts of the election appear in the application therefor, without explanation of the delay, and the restraining order appears undisturbed, we cannot hold that there was an abuse of discretion in refusing the writ.

All the Justices concurring.