3 Kan. 95 | Kan. | 1865
As to tlie objection to the jurisdiction of this court, wo are clearly of the opinion that it is not well taken.
We also think that a writ of mandamus is a proper, and the only sjoeeifie remedy to be resorted to in cases of this kind.
Both of these positions are fully sustained in the cases cited by relator, of which it will be sufficient to refer to the authority in 29th Ills., 418.
The further examination of this case involves a consideration of the provisions of sections 86 and 38 of the statute regulating elections.
It will be seen that the State Board of Canvassers are required to perform certain duties which are concluded by delivering to the Secretary of State certified statements of the results of their canvass. Upon so doing nothing further is required of them.
Section 86 reads as follows: “ Por the purpose of canvassing the result of elections, the State Board of Canvassers shall meet at the office of the Secretary of State on Monday preceding the 22d day of December next after the election, when they shall, upon a certified abstract of votes in the different districts on file in the office of the Secretary of State, proceed to examine and make statement of the whole number of votes given at any such election for state officers, the justices of the Supreme, and judges of the District Courts, the members of the Senate and House of Representatives and Representative in Congress, or for so many of said officers as may have been voted for at such election, which statement shall show the names of the persons to whom such votes shall have been given for either of the said offices, and the whole number given to each, distinguishing the several districts and counties in which they were given; they shall certify such statement to be correct and subscribe their names thereto, and they shall thereupon, determine what persons have
The proceedings and determination of the late State Board of Canvassers, bearing upon this case, duly authenticated, (and it may be remarked, the only determination that appears,) are here before us, and in evidence. Ought, or can we, go behind them in this proceeding ? We think not. The action of the State Board of Canvassers, whatever it may have been, is outside of this case only so far as it appears in their statement and determination before us.
Were this proceeding against them the case would be different, but it is against the Secretary of State, not as a member of the Board of Canvassers, but as Secretary of State, and as ex-officio clerk of the Board; and as such clerk, charged, under the law, with the performance of a specific duty or act, purely ministerial in its nature, and based upon the previous action of the board. Acting in this capacity, he is in no wise responsible for the action of the Board — be it right or wrong — but he must be governed by such action.
Section 38 is as follows:
“ The Secretary of State shall record in his office in a book to be kept by him for that purpose, each certified statement and determination as made by the Board of State Canvassers, and shall, without delay, make out and transmit to each of the persons thereby declared to be elected, a certificate of his election, certified by him, under his seal of office, and he shall also, forthwith cause a copy of such certified statement and determination to be published in a newspaper published at the seat of government.”
These provisions show conclusively the correctness of the position we have taken.
The relator had been, by the.State Board of Canvassers
As to the statement by the respondent, “that he together with William Spriggs, did proceed to examine and make statement of the whole number of votes given at said election for state senators in said senatorial district, and did canvass the same according to law; that they did determine therefrom that F. II. Drenning and J. T. Lane were, by the greatest number of votes given, duly elected to the office of state senators, in and for the said first senatorial district, that thereupon the said respondent did is-, sue to the said F. II. Drenning and J. T. Lane,certificates of their election to the office of state senator for the senatorial district in the county of Doniphan,’/1 ¡w.e have' but a single remark to make. There is no suchistatement and determination before us. But if there wefe, tve are unable to find any authority in any provision of the election law, which would admit of such a proceeding on their part.
The State Board of Canvassers consists of five members, of whom a less number than three are not authorized to act. Sec. 33.
The issuance then of the certificate of election to J. T. Lane, by the Secretary of State, upon the statement and determination of the canvass made by himself and William Spriggs, was unauthorized, and it does not operate to prevent the issuance now of a certificate of election to the relator. 2d Carter, 128.
The question presented by counsel for the relator, and involving the constitutionality of the law passed by the 'Legislature of 1861, and approved March 1st, having reference to the subject of persons voting who are in thé mili
Entertaining the views thus expressed, a peremptory writ of mandamus will be awarded to the Secretary of State of the state of Kansas, commanding him to issue a certificate of election to the relator as state senator from the first senatorial district, county of Doniphan.