42 Kan. 164 | Kan. | 1889
Opinion by
This is an action brought originally in this court for the purpose of compelling Lewis W. Fulton, clerk of the district court, to hold his office at the town of Eminence, in Garfield county. After the return of the writ by the defendant, by stipulation Clarence Van Patten, E. W. Dunn, J. L. Bennett, J. E. T. Kephart and N. A. Johnson were made defendants, and afterward an issue was joined-between all of the defendants by their answer and return. The first election for permanent county seat and for county officers was held on November 8,1887; and after this election, and on November 15, 1887, an alternative writ of mandamus was issued, commanding the defendant Fulton to forthwith hold his office and transact the county business at the town of Eminence. The question now involves the validity of the election for permanent county seat. The plaintiff alleges and claims that at said election so held in Garfield county for the purpose of designating the permanent location of the county seat the town of Eminenc'e received a majority of all the legal, votes cast thereat, and that by the fraud, of the election board of Center township a larger number of votes was returned as hav
Several charges and counter-charges of fraud and corruption have been made by the plaintiff and defendants, but at the final hearing of the action by agreement of the parties the matter was left to be determined upon the validity of the election in Center township alone. The plaintiff now contends that the election board at Center township fraudulently and wrongfully conducted the election, and fraudulently and wrongfully put tickets in the box in excess of the number of persons who voted at that election to the number of 86, and forged the poll-books to the extent of 86 names, and that the county clerk falsely and fraudulently added to the registration books the names of 86 persons so alleged to have voted at said election. The plaintiff also charges that the election board refused to allow a representative of the town of Eminence on the election board, and during the time of the voting refused to permit a representative of the town of Eminence in the polling-room, and also refused to allow or permit a candidate on the Eminence ticket to be present in the polling-room during the time of the reception or counting of the ballots, and at the close of the polls fraudulently neglected to post the number of votes cast on the outside of the door of the polling-room, as provided by law, and fraudulently continued the counting of the ballots until after the full returns from the remainder of the county had been known, and then falsely and fraudulently stuffed the ballot-box to the extent of 86 ballots, and forged the poll-book to make it correspond to the 86 ballots so fraudulently placed in the ballot-box.
It is not denied by the defendants but that the charge in relation to the manner in which the election board was formed and the polls opened is true, that representation was denied
The evidence produced by the plaintiff upon the question of fraud■ presents substantially the following facts: At the close of-the polls, Dr. Crow’s record or tally showed 259 votes by number, and it was there by him announced that the total vote at the close of the polls was 259. It was afterward discovered that Crow’s list contained 260 names. It was then announced from the polling-room by some member of the board, and by other, persons, that the tally-sheets and poll-books showed 260 persous voting at that election, and it was generally conceded and known that evening that the total number of votes was 260. The evidence further discloses the fact that dui’ing the day a person when voting would ask the board what his number was, and they would give him his number as appearing upon the poll-book, and these numbers agree with the numbers Crow had on his list, made on the outside. At other times a dispute would arise between the clerks as to the number of voters, and they would make the correction and announce such correction, and also ascertain the number Crow had on his book, kept on the outside of the window, .and thus during the day at several intervals these records were compared and known. In support of the record kept by- Crow, and for the purpose of impeaching the returns made by the board, thirteen witnesses were introduced who testified that they voted at that election, and gave the name of the person who voted immediately before or immediately after them, and several also gave their number when voting, and by a comparison of their testimony with Crow’s record it is shown that his record corresponds with the statements of these witnesses,, but does not correspond with the poll-books and return by the board. . -
Again,'to contradict this return, one J. D. Montgomery was presented by the plaintiff as a witness, who testified that he was a voter at said election, and voted, and that he did not vote for Eminence or Ravanna for the county seat. James Cross, one of the judges of election, testified that he failed to erase from his ticket either Ravanna or Eminence, and that his vote was not cast for either of those places for county seat, and was not counted for either place, while the return made by the board shows that all the voters returned as having voted at the election voted either for Ravanna or Eminence for the county seat.
Again, for the purpose of impeaching said return, plaintiff placed upon the witness stand 96 persons who show themselves to have been qualified electors, and who testified that they voted at that election, and that they cast their ballots for Eminence for county seat, while the returns show but 83 votes for Eminence. Plaintiff also caused a subpena to be issued and placed in the hands of the marshal, appointed by the court to serve process, for the 86 persons claimed by the defendants to have voted at said election, in excess of the 260 as shown by Crow’s list. This subpena was returned by the officer with the showing that said persons could not be found in Garfield county.
The plaintiff also produced one F. M. Francis, who testified that he was a resident of Ravanna, a deputy sheriff on the day of the election, and was present and voted at the election, and voted for Ravanna for county seat; that the board of election
Plaintiff also produced one "W. A. Shirley, who in a deposition testified that he was a lawyer by profession, and lived at the time of the election at Ravanna; that he was present at the election, and that tickets were prepared in his office during the day of the election to put in the ballot-box, and that the same were delivered to one of the judges of the election and by him placed in the ballot-box during the time the votes were being counted, and that these 86 ballots were fraudulently placed in the ballot-box; that on the night of the 9th, the night after the canvass of the votes of Center township was made, the board and clerks met at Crow’s store, and afterward for better security came to his office, being the law office of McAliney and this witness, and there the board proceeded to make out new poll-books, so as to place the 86 names to correspond with the 86 tickets that had been by the board fraudulently placed in the ballot-box during the election and counting; he also states that it was generally talked over between the persons interested in the location of the county seat at Ravanna as to the manner of securing the majority of votes by falsely placing
The defendants denied the fraud alleged by the plaintiff, and they also produced the election board and other persons connected with the election, and friends of Ravanna, who testified that there was no fraud perpetrated by the board, and that the election was fair in every respect. They also offered evidence tending to contradict the evidence given by the plaintiff not admitted, and evidence tending to impeach the statements made by Francis and by Shirley; and also evidence tending to show that Shirley was intoxicated at the time, and did not know what took place at his office on the evening of the 9th. They also produced a large number of witnesses and attempted to account for the 86 names that the plaintiff alleged were fraudulent, but of these 86 names not one of the persons is produced as a witness to testify that he was present and voted at that election, although there was a large number of witnesses who testified that they were acquainted with some of the 86 persons, that they had formerly lived at Ravanna, or had been stopping there, some transient, some a number of months, and .that they were seen there at Ravanna at the time of the election, and some on election day, and some on days after the election; but no one is able to say from personal knowledge that these 86, or any of them, voted at that electipn. There was strong evidence, however, tending to show that a number of these persons actually did vote at that election, but as to the greater part of these 86 there is no evidence to show that they were residents and electors of Garfield county, or that they were present or voted at that election; and as to a number of them the defendants admit that they were not there — one being in Colorado at the time, and another in Texas, and a few others whom they do not claim were present in person to vote at that election, but the claim made by the board and friends of Ravanna is that each ballot so recorded and tbe name appearing upon the poll-book represent an actual person who appeared and voted and gave the name appearing upon the poll-book, and that if any of these 86 persons were not
The evidence to establish these facts-runs through more than 4,000 pages of record. The record ■ contains a large amount of evidence not pertinent to the issues as now narrowed down. From this testimony and admissions it is clear: First, that the county clerk refused to permit-an inspection of the registration books, or to give a copy of the same to the -friends of the town of Eminence. Second, that the county clerk refused to permit an inspection of the poll-books after the canvass by the board of county commissioners, or to furnish a copy of the same. Third, that the board was organized without any representation on the part- of the friends of Eminence, and that after its organization the board wrongfully refused admission to the polling-room during the reception of the votes of a representative of Eminence, or on behalf of any candidate for office on the Eminence ticket. Fourth, that at the close of the polls they wrongfully failed and refused to post the number of votes cast on- the outside of the door of the polling-room. Fifth, that the board wrongfully and fraudulently continued to count until after the returns from the remaining five precincts were brought in and the majority in favor of Eminence in such townships-was ascertained. Sixth, that the board fraudulently concealed the fact that the poll-books contained the names of 346 voters until after-the entire count-was made. Seventh, that the board fraudulently counted all the votes cast in favor of either Ravanna or Eminence,- when they well knew that at least two ballots contained uo name for permanent county seat. On these points there- can be no controversy. It is not even fairly denied in the evidence by the defendants or the election board.
The remaining question is: Is there a preponderance of the evidence with the plaintiff to establish the fact that the poll-books were forged and the ballot-box stuffed ? The direct evidence of this fact is somewhat meager, and did we have to determine upon that testimony alone'' we would hesitate be
Again, it is shown by the plaintiff that ninety-six voters testified that they voted at that election, their names appearing upon the registration list and upon the poll-books and upon Crow’s list, and they testified that they voted for Eminence, while the poll-books returned by the election board show but 83 so voting. These facts are strong circumstances tending to establish a corrupt purpose on the part of the election board and managers of the election to defeat the honest will of the majority of the voters of Garfield county. The defendants, however, insist that they have by a preponderance of the testimony established the fact that Dr. Crow’s list is not correct, and that the return by the board is correct; and in their argument they say they have shown that before the election, on the day of the election, and afterward, these 86 persons lived in Ravanna; that they were there and had registered, and were legal voters; and they say when they have done that, that it is not necessary for them to go farther and show that they voted at the election; that the interest in the county-seat election at Ravanna was of such a character that it would have
Again, no attempt is made by the defendants to prove the number of votes actually cast in favor of Eavanna in Center township for the permanent county seat; it therefore must follow that the returns from Center township must be disregarded so far as the defendants are concerned, and the actual votes proven for Eminence be counted. So, placing it upon the basis of the actual votes cast at the election, it can fairly be said that of all the votes actually cast, Eminence received a majority of such votes.
It is therefore recommended that the peremptory writ of mandamus be allowed.
By the Court: It is so ordered.