Lewis v. Comm'rs of Marshall Co.

| Kan. | Jan 15, 1876

The opinion of the court was delivered by

Brewer, J.:

This is an action of mandamus, to compel a • correct canvass of the votes cast in the county of Marshall for the office of county clerk. Upon the canvass that was made the canvassers rejected the returns from Waterville township, and declared one J. Gr. Mclntire elected. If those returns had been counted, the plaintiff would have received a majority, and been declared elected. Three questions are presented: First, will the court, after a canvassing board has made one canvass, declared the result, and adjourned, compel it, by mandamus, to reassemble and make a correct canvass on the ground that at the prior canvass it had improperly omitted to canvass all the returns ? Second, if the returns are regular in form, and genuine, may the canvassing board reject and refuse to canvass them, on the ground that during the election fraudulent votes were received, and other irregularities practiced by the judges and clerks of election? And third, will th'e fact that, after the poll-books and tally-sheets have been properly prepared and signed, and before their delivery to the township trustee and county clerk, they are tampered with and changed by outside parties, so far as respects the votes for candidates for a single office, justify the canvassing board in rejecting the entire returns, and in refusing to count the votes cast for the candidates for the other offices?

The first question 'must be answered in the affirmative, and the other two in the negative. We are aware that the authorities are not uniform upon the first question. See on the one hand, People v. Suprs. Green County, 12 Barb. 217" court="N.Y. Sup. Ct." date_filed="1851-12-01" href="https://app.midpage.ai/document/people-ex-rel-bailey-v-supervisors-of-greene-5458159?utm_source=webapp" opinion_id="5458159">12 Barb. 217; and, as partially indorsing this view, The State v. Berry, 14 Ohio St. 315; and on the other side, The State v. County Judge Marshall Co., 7 Iowa, 186" court="Iowa" date_filed="1858-11-06" href="https://app.midpage.ai/document/state-ex-rel-rice-v-county-judge-7091524?utm_source=webapp" opinion_id="7091524">7 Iowa, 186; The State v. Bailey, County Judge, 7 Iowa, 390" court="Iowa" date_filed="1858-12-14" href="https://app.midpage.ai/document/state-ex-rel-byers-v-bailey-7091551?utm_source=webapp" opinion_id="7091551">7 Iowa, 390. The view taken by the Iowa court seems to us the correct one. It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by canvassing only a part, and refusing to canvass the others, as by refusing to canvass any. And it is settled by abundant authority, that where the board refuses to canvass any of the votes it may be compelled so to do by mandamus, and this though the board has adjourned sine die. Hagerty v. Arnold, 13 Kan. 367" court="Kan." date_filed="1874-07-15" href="https://app.midpage.ai/document/hagerty-v-arnold-7883834?utm_source=webapp" opinion_id="7883834">13 Kas. 367, is a case in point. The canvass is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance. And a candidate has as much right to insist upon a canvass of all the returns, as he has of any part, and may be prejudiced as much by a partial as by a total failure. The- adjournment of the board does not deprive the court of the power to compel it to act, any more than the adjournment of a term of the district court would prevent this court from compelling by mandamus the signing of a bill of exceptions by the judge of that court, which had been tendered to him before the adjournment. As a general rule, when a duty is at the proper time asked to be done, and improperly refused to be done, the right to compel it to be done is fixed, and is not destroyed by the lapse of the time within which in the first place the duty ought to have been done.

As to the other two questions, it is a common error for a canvassing board to overestimate its powers.. Whenever it is suggested that illegal votes have been received, or that there were other fraudulent conduct and practices at the election, it is apt to imagine that it is its duty to inquire into these alleged frauds, and decide upon the legality of the votes. But this is a mistake. Its duty is almost wholly ministerial. It is to take the returns as made to them from the different voting precincts, add them up, and declare the result. Questions of illegal voting, and fraudulent practices, are to be passed upon by another tribunal. The canvassers are to be satisfied of the genuineness of the returns, that is, that the papers presented to them are not forged and spurious; that they are returns, and are signed by the proper officers; but when so satisfied, they may not reject any returns because of informalities in them, or because of illegal and fraudulent practices in the election. The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court for contesting elections, or in quo warranto proceedings. It must' be borne in mind that the change in the returns in this case was made after their execution by the proper officers, and before they reached the county clerk’s office, was made by unauthorized and outside parties, and not by the election officers, and did not affect the number of votes cast and returned for this plaintiff, or his opponent. Under those circumstances we think the commissioners were not justified in refusing to canvass the returns from Waterville township, so far at least as respects the officers other than the one concerning which the tampering with and changing of the votes was had.

The peremptory writ must be awarded as prayed for.

All the Justices concurring.