53 Kan. 470 | Kan. | 1894
The opinion of the court was delivered by
This action was brought to determine who was entitled to the office of county commissioner for the first district of Mitchell county. A. D. Rathburn and H. H. Hamilton were rival candidates for that office at the general election held on November 7, 1893. The total number of votes cast for the office was 799; and, according to the canvassed returns, Hamilton received 445 votes while Rathburn received 354 votes. Hamilton was declared elected to the office, of which he has taken possession, and is now discharging the duties and receiving the emoluments thereof. In his petition, Rathburn alleges that he was eligible to be elected to the office of county commissioner, and that he received a majority of the legal votes cast in the district for that office; and it is further alleged, that Hamilton was not legally nominated, but that the county clerk, without authority, and to the injury of the plaintiff’s rights, caused Hamilton’s name to be printed upon the official ballots for the district as the candidate of the people’s party; that the official ballots, with defendant’s name printed thereon, were voted by the electors of the district, and, although unauthorized and illegal, they were counted and canvassed as lawful and regular ballots; that, upon a return of the votes so cast, Hamilton was declared elected, and a certificate of election was unlawfully issued to him by the county clerk; that thereafter Hamilton filed an oath of office aud a bond, and entered upon and is now exercising the duties of the office.
In his answer, Hamilton alleged that, on September 16, 1893, at a convention of the people’s party, he was duly nominated as the candidate of that party for the office of county commissioner, which nomination was ratified and confirmed by the unanimous vote of all the delegates present in the con
“ That on the same day that said certificate was prepared as aforesaid, the same was taken by said Culp and said Chapel to the office of the county clerk of said Mitchell county for the purpose of being filed with said clerk, and, as defendant is informed and believed, said certificate was then and there left with said clerk to be filed, but that, without any intention of wrong or neglect on the part of said county clerk, the said certificate was, after being left with him for filing, inadvertently mislaid and lost, and has not since been found, and, although diligent search has been made therefor, the said certificate cannot be found.”
It is then alleged that neither Culp, Chapel nor the defendant had any knowledge that the certificate had not been in fact filed by the clerk until October 31,1893, when they prepared and verified a certificate of nomination in due form and filed the same with the county clerk, but that officer declared the paper to be insufficient and inoperative because it had not been filed in his office within 20 days previous to the election had November 7, 1893. Afterward, and upon October 31, 1893, Culp and Chapel, as chairman and secretary of the executive committee of the people’s party for the first district, properly executed a nomination paper which recited the nomination of Hamilton on September 16, 1893, the fact that the county clerk had declared the nomination ineffectual and in
“We hereby nominate as candidate for the people’s party, for commissioner of the first commissioner district, H. H. Hamilton, of Plum creek township, Mitchell county, Kansas, as provided in section 9, chapter 78, Session Laws of the state of Kansas, 1893.”
This nomination paper was verified by the officers making it, and was filed with the county clerk on October 31, 1893. Objection being made to the sufficiency of this nomination paper by W. J. Sturgis, a citizen and elector of Mitchell county, the interested parties appeared before the county attorney, clerk of the district court, and county clerk, on November 2, 1893, when the objection was heard and the facts connected with the nomination were considered; whereupon it was found that Hamilton was the legal nominee of the people’s party, and it was decided that the objection filed was without merit. There is a further averment in the answer that plaintiff, being a minority candidate, has no interest in the office now held by the defendant, and no legal capacity to sue or maintain an action against the defendant. The plaintiff filed a demurrer to the answer of the defendant, alleging that it did not state facts sufficient to constitute a defense to the action, and upon the pleadings the cause was submitted to the court.
On these facts the contention is, that the nomination certificates and papers are insufficient; that they did not authorize the placing of Hamilton’s name on the official ballot, and therefore that the votes cast for him were illegal, and should have been discarded by the officers who canvassed and declared the result. It appears that Hamilton was duly nominated by the convention of his party, his name was placed upon the official ballot, and a considerable majority of the votes east were in his favor. Was there such a departure from the legislative requirements, in reference to nomination, as to defeat the expressed will of the electors? It is averred that the presiding officer and secretary of the convention exe
In this case, it appears that the county clerk held the nomination certificates which were filed to be insufficient and inoperative, and on October 31, seven days before the election, nominating papers were filed which seem to comply with the provisions of § 9. Upon a hearing of objections to these papers, the officers whose duty it was to consider them decided that the papers were sufficient; and § 10 of the act provides that their decision as to the objections is final. If for any reason the certificate first filed should be found insufficient, or that it had become inoperative, the subsequent steps taken appear to warrant the placing of Hamilton’s name on the official ballot. This action and decision were taken prior to the printing of the ballots, his name was placed thereon, and, under the circumstances, it cannot be held that the votes cast for him were void. *
An elaborate and well-reasoned argument is made to sustain the proposition that the provisions of the Australian ballot law should be regarded as mandatory, and strong reasons are given to sustain the view that at least every essential provision should be so treated. The view which we have taken, however, in regard to the sufficiency of the certificate makes it unnecessary to enter upon a discussion of that question or some other questions that are raised in the briefs - of counsel.
We are of opinion that the facts stated in the answer constitute a complete defense' to the action begun, and that the plaintiff’s demurrer thereto should be overruled.