State ex rel. McDonald v. Sheldon

2 Kan. 322 | Kan. | 1864

By the Court,

Kingman, J.

A court for the trial of contested county elections was organized under Sec. 13, Chap. 89 of the Compiled Laws, to try a contested election case in Osage County, between Joseph McDonald, incumbent, and O. H. Sheldon, contestant for the office of treasurer of Osage County. Such proceedings were had as resulted in a determination by that tribunal in favor of Sheldon, and he was declared duly elected to the office of county treasurer of Osage County.

During tbe progress of the trial various rulings were made against the relator in this case, to which he excepted, and at the close of the trial presented his bill of exceptions and asked that it be signed and made a part of the record. The Court refused to sign the bill tendered, and refused to sign any bill. This is an application by the State on the relation of Joseph McDonald, incumbent in that case, for a mandamus to compel the board to sign a bill of exceptions as of the date of the sitting of the Court, and make the same a part of the record.

If it was the duty of the tribunal to sign such a bill of exceptions, then the writ will be granted, and the duty will depend upon whether there is in the law any power to revise the action of the tribunal.

That there is a power to revise seems too apparent from Section 523 of the Code of Civil Procedure, wherein it is provided that a judgment rendered or final order made by a justice of the peace'or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the District Court, may be reversed, vacated or modified by the District Court. This case comes plainly and obviously within the provisions of this section.

The law under which the tribunal met, calls it a Court. Its acts are of a judicial character, not ministerial, like those of a board of canvassers. It pronounces a judgment affecting the rights of parties. It gives judgment for costs and must therefore be held a tribunal exercising judicial functions, and its acts subject to revision.

An alternative writ of mandamus is awarded.

All the justices concurring.

Note By the Reporter.—Upon the filing of an answer to the alternative writ in this ease, it was objected to by the counsel for the relator as an insufficient answer to the allegations of the writ. Respondents insisted'that the writ itself was insufficient, and the Court held that the writ wasvbad, and permitted an amendment upon payment of costs. The answer to the amended writ was held insufficient and a peremptory writ awarded. Upon a return of a full compliance with the command of the writ by respondents, the counsel for relator proposed to show by proof that the bill of exceptions sign»d was not true. The Court declined to hear the proof.