6 Kan. 524 | Kan. | 1870
The opinion of the court was delivered by
This is an application for a peremptory writ of mandamus to compel the defendants, who are the County Commissioners of Neosho County, to hold their offices at the town of Erie, which is claimed to be the county-seat of said county.
II. The main object of this action is to have the court determine whether the town of Erie, or the town of Osage Mission, is the county-scat of Neosho county. At the commencement of this action an alternative writ was issued; afterwards the defendants answered, and the action was then tried upon the said writ and answer. Many questions were raised in this case which we do not consider of sufficient importance to notice in this opinion — some being raised during the trial, and some before the trial.
The plaintiff founds his claim that Erie is the county-seat of Neosho county, upon a certain election held in said county on the 28th day of December, 1869. The returns of their election were duly canvassed by the then board of county commissioners on the 1st day of January, 1870 ; and as a result of said canvass the commissioners declared that Erie was the county-seat. According to that canvass, Erie received 2,587 votes; Osage Mission, 1,965 votes; total, 4,552 votes — the majority for Erie
It is in evidence before us, that at the time of said election the whole number of legal voters in Neosho county was only about 1700 — 887 voters less than are said to have voted for Erie — 265 voters less than are said to have voted for Osage Mission, and but little more than one-third as many as are said to have voted for both places; and showing that there were about 2,852 illegal votes cast at that election. The principal frauds were perpetrated at Erie and Osage Mission, and in Lincoln township, or rather in Lincoln township. After the election, and before the canvass of the voters, the poll-books were tampered with, and many new names were fraudulently added to the list of voters in said poll-books.
Originally the writ of mandamus was a prerogative writ, solely within the discretion of the court; and it still so far partakes of its original nature, that the court may exercise a considerable degree of discretion in granting or refusing it, and in hearing evidence for and against it.
The peremptory writ of mandamus is refused.