80 Kan. 777 | Kan. | 1909
The opinion of the court was delivered by
This is an original proceeding in quo warranto, and the question involved arises upon a motion to dismiss.
At the general election in November, 1908, the plaintiff and the defendant were candidates against each other for the office of coroner of Wyandotte county. The official returns showed that the defendant had received twenty-five more votes than the plaintiff, and the canvassing board declared him duly elected. He received the certificate of election, and thereafter qual
“And that when said court convened said plaintiff asked and demanded that the ballots counted for said ■election in the precincts in which he alleged in his statement of contest mistakes and errors had occurred be produced and used in evidence; and that said board, notwithstanding the statute in such cases made and provided, refused, upon a vote of two to one, the two democrats composing the said board voting against ordering said ballots to be produced or the reception of the same in evidence to support the claim of the said plaintiff herein, until said plaintiff should show ■aliunde said ballots that a recount of the same would •show him to have been elected at said election. And the plaintiff, being unable to make such proof aliunde said ballots, dismissed his said cause.”
On May 1, 1909, the plaintiff brought this action in ■quo warranto, asking that a recount of the ballots be had, that he be declared duly elected to the office, and that the defendant be ousted therefrom. The grounds relied upon here are the same as those upon which the contest was based, and, in substance, amount to the claim that at each of the voting precincts in the county there were several ballots counted for the defendant which were not cast for him and a number that were cast for the plaintiff which were not counted for1 him.
The defendant moves to dismiss on the theory that by commencing the contest and afterward dismissing the same the plaintiff lost his right to maintain this action. The sole question to be determined is whether the action should be dismissed.
The defendant contends that the doctrine of election .
In this connection the plaintiff makes the further contention that election of remedies does not apply. because at the time he instituted his contest his remedy by quo warranto had not accrued; that he had his remedy by contest when the canvassing board declared the defendant elected, but in. order to avail himself of that remedy the statute required contest proceedings to be commenced within twenty days from the time the votes were canvassed, whereas an action in quo warranto would not lie until the defendant took the office, which was in January, 1909. To the last contention it is a sufficient answer to say that a party may be bound by his election of one remedy although the second remedy may not have accrued at the time he makes his election. For instance, he may have two inconsistent remedies, one sounding in tort and one on contract. His remedy by an action in tort may have accrued before he could maintain an action on the contract, for the reason that the contract had not matured. Yet, if by commencing his action in tort he assume a position inconsistent with the claims he afterward seeks to assert, he will be held bound by his election.
It is apparent, however, that the doctrine of election of remedies can not be applied in all its rigor in the present case because there is not that inconsistency between the two remedies which lies at the basis of the doctrine. (Tarbox v. Sughrue, 36 Kan. 225.) The case presents a situation in some respects like that which arose in the recent case of Yeager v. Aikman, ante, p. 656, an original proceeding in quo toarranto to oust the defendant from the office of judge of the ■district court. In that case the plaintiff first insti
We are satisfied, however, that this action should not be entertained, and that it must be dismissed. While the decision can not be rested upon the ground either of election of remedies or that the matters and things sought to be litigated are res judicata, some of the principles of both doctrines apply more or less forcibly to the situation in which the plaintiff finds himself. He had two remedies. It may be conceded that they are not inconsistent so as to make the commencement of one an irrevocable election. His first remedy was the ordinary, usual one where a rival candidate seeks to contest the validity of an election for a township or county office. It is reasonably adequate for the purpose for which it was intended; it deter
It is obvious, however, that the court’s discretion is not exhausted when it determines whether there is another adequate remedy. On the contrary, the question whether under all the facts and circumstances relief shall be granted rests in the judicial discretion. Be
In the present case the plaintiff adopted the ordinary, usual remedy, and contested the election before the tribunal created by statute for contesting elections of township and county officers.- He prosecuted that action until confronted by a ruling of the court which prevented him from procuring a judgment in his favor, and then dismissed his action. He now asks the court in its discretion to inquire into the right of the defendant to hold the office, setting up the same grounds- for relief which he relied upon in the former action. It would be difficult to lay down a hard-and-fast rule which would control in all cases, because judicial discretion is not to be governed by inflexible rules of law.
“Discretion may be and is to a very great extent regulated by usage or by principles which courts have learned by experience will, when applied to the great majority of cases, best promote the ends of justice.” (Platt v. Munroe, 34 Barb. [N. Y.] 291, 294.)