50 Kan. 149 | Kan. | 1893
The opinion of the court was delivered by
This is a proceeding in mandamus brought originally in this court by O. M. Rice against the board of canvassers and the county clerk of Coffey county. He asks for a writ compelling them to reconvene and recanvass the returns of the township of Avon, Coffey county, for member of
It appears that O. M. Rice and T. C. Ballinger were candidates for representative from Coffey county at the late election, and that when the county canvassing board met and-canvassed the result of that election, they found and declared that each had received 1,826 votes, and a certified abstract of that result was sent to the secretary of state. Since that time the state board of canvassers canvassed the returns from that county and ' found that there was a tie, and, having settled it as the statute prescribed, awarded the certificate to Ballinger. The plaintiff alleges that the canvassing board of the county refused to canvass all the votes returned for him in Avon township; that by the certified returns from that township he received 96 votes, and Ballinger received 68 votes; but that the board determined and declared that Rice received Only 95 votes. He avers that if all had been counted it would have appeared that he had a total of 1,827 votes, one more than Ballinger, and that, as a true and correct abstract of the votes had not been sent to the secretary of state, the state board of canvassers could not declare him to be elected nor award him the certificate to which he was entitled. The poll books of Avon township were presented to the court, and from them it appears that the footings and statement made in the certificate of the judges and clerks of election show that Rice received 96 votes in that township; but it also appears by the enumeration or tallies entered on the tally sheet of the poll books, as the ballots were counted by the judges, that he received only 95 votes. When the canvassers met they decided that they would consider the enumeration of the votes upon the tally sheet, in determining who was elected to the various offices; and this was in accordance with a practice which had long prevailed in that county. What is called the “ tally sheet,” is bound in and as a part of the poll book. On
A meager description of the poll books and forms provided for tallying the ballots as they are taken from the ballot box and read is sufficient. Substantially the same form of poll books and tally sheets has been in use for many years, if not from the organization of the state, and almost every elector is familiar with them. To the right of the name of Rice, votes were entered in 20 columns or spaces. In each of 18 of them, there were five tally marks entered, by making four straight marks, and then by drawing a diagonal one across them. In one space, not far from the middle of the line of spaces, there were only four marks, with no line across them; and in the twentieth space there was but one mark. It appears that the judges and clerks assumed that there were five tallies in each space, except in the twentieth, and so, without otherwise counting them, they decided that 19 spaces contained 95 votes; and these added to the one in the twentieth space made up the 96 votes, and they made their footing and certificate accordingly. As a matter of fact, only 95 tallies were entered on the tally sheet, and it was from the tally sheet alone that the judges and clerks determined the total number of votes that were cast, and in the manner described. One of the poll books, including this tally sheet on which they made their certificate and return, was sent by them to the county clerk’s office, and the duplicate was retained by the township trustee. We have examined both of them, and find that they correspond exactly in the record of Rice’s vote. With this return before it, the county board determined that Rice received but 95 votes, and made its canvass accordingly. From
It is urged that the tally marks constitute no part of the return, and cannot be used in determining the number of votes. Of course the board must make its determination from the legal returns made by the judges and clerks, and cannot exercise the function of a contest court. It is argued, however, in behalf of the defendants, that the statute contemplates there shall be just such an enumeration or tallying of the votes as the count proceeds as was made in this instance. (Gen. Stat. of 1889, ¶¶ 2679, 2680, 2684, 2687.) It is also contended that such tally sheets have been made and returned as a part of the poll books from the earliest history of the state; and it is further said that the tally sheets have been recognized in several decisions of the supreme court, and this method of making the poll books and tallying the votes has been in universal use for so many years, and been recognized by all the departments of the state government, as to constitute a practical construction of the statute — a construction which has generally been accepted and acted on by the people of the state. There is some diversity of judicial opinion in regard to whether the tally or enumeration of the votes entered in the poll book may be considered as a part of the return. In Missouri, which has a statute similar to our own, it is held that it cannot be used to verify or correct the figures or footings contained in the certificate. (The State v. Trigg, 72 Mo. 365.) The State v. State Canvassers, 36 Wis. 498, is cited as sustaining the same view. The preponderance of decisions under statutes somewhat similar to ours, however, appears to uphold the view that the tally or enumeration of the votes in the poll books may be considered in verifying the returns, and that if a disparity exists between the footings and the tallies the latter
The plaintiff seeks relief through an action of mandamus, which, as has been generally decided, lies, to a great extent, in the discretion of the court. It should be allowed only to secure or protect a clear legal right, and should never be granted when its enforcement would work an injustice or accomplish a wrong. (The State v. Marston, 6 Kas. 524; Peters v. Board of State Canvassers, 17 id. 365; The State v. Stevens, 23 id. 456; People v. Board of Canvassers, 129 N. Y. 370; High, Ex. Rem., §40; 14 Am. & Eng. Encyc. of Law, 97.) Has the plaintiff shown a clear legal right to be credited with 96 votes from Avon township? Would any contesting tribunal, from the evidence submitted, give him more than 95 votes? The enumeration entered in the poll books and the one on which the judges and clerks relied to make out their certificate, and which they set up as a part of their return, plainly shows that he received only 95 votes. This return was verified and corroborated by the duplicate return retained in the township. An abstract or return by the county canvassing board, showing that Rice had received 96 votes in that township, and 1,827 in the county—a plurality of one over his opponent—would apparently be an untruth, and to compel the canvassers to declare such a result, and assist him in obtaining a certificate or office to which he was not elected would be a wrong and an injustice. Further, it appears that a vote was cast for “Barringer,” and that it was not counted for Ballinger. The similarity of the sound and form of the two names would indicate that it"was intended for Ballinger.
It was suggested in argument that he was entitled to have a recanvass made in order to furnish evidence of the true result for use in the contesting tribunal. It is wholly unneces
Our conclusion is that the plaintiff has failed to establish his right to the writ, and it must therefore be refused.