42 Kan. 739 | Kan. | 1889
The opinion of the court was delivered by
The purpose of this proceeding is to obtain a determination of what place is the county seat of Kearny county. The county was organized on March 27,1888. At the same time the following officers were appointed by the governor, viz.: W. J. Price, H. A. W. Corfield and S. R. Hibbard, county commissioners; James H. Waterman, county clerk; and R. F. Thorne, sheriff; and the town of Lakin was designated as the temporary county seat. On July 21,1888, the first election was held, for the purpose of choosing a permanent county seat and a full set of county officers. At the time of this election there were six election precincts in the county, viz.: Kearny, Kendall, Hibbard, Hartland, Lakin, and South Side. On July 27, 1888, the county clerk and county commissioners of the county convened for the purpose of canvassing the returns of the election, which had been received from the several precincts, when a restraining order, issued by the judge of the district court in an action brought in the name of the state, was served upon them, restraining the canvass of the returns from Kearny and Kendall precincts until the hearing of an application for a temporary injunction, which hearing was to take place on August 7, 1888. Upon service of this writ the canvassing board adjourned until August 17, 1888. The following day the chairman of the county commissioners, upon the request of the other two members, reconvened and resolved “ That upon the. advice of our attorneys it is our duty to canvass all returns not restrained ; that we now proceed to do so.” The canvass of the
As will be seen from the foregoing recital, two elections are involved in this proceeding — that of July 21, 1888, and the one held on February 19,1889. The plaintiff claims that no place received a majority of all the votes cast at the first election, and that when this result was ascertained, it was the duty of the sheriff to call a second election, as was done, and that at that election Hartland received a majority of all the votes cast. In behalf of some of the defendants it is claimed that Lakin is the permanent county seat by virtue of the July election, and that there was no authority to call or hold the February election. There is little, if any, contention over the integrity of the July election, or that the result as ascertained and declared at the second canvass was not correct. But while the defendants do not attack that election, they insist that there was no authority for the second canvass, because that on the first canvass Lakin was declared to have received a majority of the votes canvassed, and that this result has
It is true, as counsel for defendants contends, that language is used in the case of Light v. The State, ex rel., 14 Kas. 489, which supports to some extent the view urged by him. That case is firmly relied on as authority; but while the language-employed in the opinion may have been misleading to counsel, the facts in the two cases are unlike, and the decision itself is not out of harmony with the doctrine we have stated, and
“ But whatever may be the rule as to the power of the court by direct proceeding to compel a recanvass after the dissolution of the canvassing board, it seems to us that any proceedings to compel such recanvass as to the first election should be had before the second. In other words, parties cannot accept the canvass of the first election as correct, enter into the contests of the second upon the basis of such prior canvass, and then, when disappointed in the result of the second election, obtain a reeanvass of the first, or contest the result of the second on the ground of an incorrect canvass of the first.”
This holding was based in part upon the provisions of chapter 126 of the Laws of 1872, where it is provided “that in no ease shall the validity of any election be inquired into beyond the one last had and upon which the proceeding is based.” In the present case only one election had been held, and the canvass of that had never been accepted and made
In Lewis v. Comm’rs of Marshall Co., 16 Kas. 102, the precise question involved here was presented, and the court determined that a canvass of part of the returns, a declaration of the result, and an adjournment sine die, is to be treated as a non-performance of the duty, and that the board may be compelled thereafter to reassemble and make the canvass as the law requires. Mr. Justice Brewer wrote the opinion in that case also, and after stating that the authorities were not uniform upon the question, remarked that —
“ It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by canvassing only a part, and refusing to canvass the others, as by refusing to canvass any. And it is settled by abundant authority, that where the board refuses to canvass any of the votes it may be compelled so to do by mandamus, and this though the board has adjourned sine die. Hagerty v. Arnold, 13 Kas. 367, is a case in point. The canvass is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance. And a candidate has as much right to insist upon a canvass of all the returns as he has of any part, and may be prejudiced as much by a partial as by a total failure.”
It is further claimed that 42 votes were added to the poll-book, and that 42 illegal ballots were put in the box at Hart-land, but the proof does not establish the claim. The witness Perry, who undertook to keep a list of voters, says that when he left the window and went into the polling-room he found that the poll-book contained a large number of names which did not appear on the list which he was keeping, and that soon after coming into the room his book was lost or stolen, and that at once he procured another book and copied from the poll-book the names there entered. He says there were 56 names when the book was lost, and 101 on the poll-books when he finished copying the names. The plaintiff contends that the loss of the book and the charge of theft against the people of Hartland was a prearranged plan on the part of the representatives of Lakin, and an attempt to cast a shadow on the returns of that precinct. There are several things which tend to discredit the claim made by Perry: In the first place, the list or book was not kept by Perry alone, but the names had been taken down by several persons, some of whom were not witnesses. Perry, who represented the opposition, says that he discovered the extra names when the copy was made, but said nothing about it; did not check the names or in any way indicate the ones which he thought were wrongfully added to the poll-book. These so-called fictitious names were written down by him without protest or any marks
It is finally urged that there was corruption in the election in Kendall, which should destroy the poll. There is testimony that a number of persons in that township organized for the alleged purpose of controlling the election. Some of the members who were witnesses state that their purpose was to ascertain the place which had the greatest number of votes, and then to throw the votes of the organization in favor of that place, and in that way end the county-seat controversy. There is testimony indicating that some of the officers and members expected to use the organization to obtain money from one of the candidates; but whatever their purpose was, it is apparent that they failed to carry it out, and, as one witness said, the organization broke up and each member voted as he pleased. The officers and leaders of the organization did not vote for Hartland, but cast their votes for Chantilly. They further claim, however, that more votes were cast for Chantilly and Lakin than were actually returned. The returns from that precinct show that 67 votes were cast for Hartland, 11 for Chantilly, and one for Lakin. Thirteen persons went upon the witness-stand and testified that they voted for Chantilly; and they claim that there were still others who had voted for Chantilly; and further, that two persons voted for Lakin, while only one vote was returned. The testimony of Moses Miller, one of the thirteen who it is claimed voted for Chantilly, is not very satisfactory. When he gave his testimony he was in doubt as to the name of the place for which he voted. He was a native of Virginia, and was a slave up to the time of the emancipation proclamation, who said he cast his first vote for Abraham Lincoln for presi
Other testimony which would weaken the force of the defendants’ claim might be mentioned, but this is sufficient. They have failed to impeach the conduct of the election board or to destroy the prima facie character of the returns. The election board was openly and fairly chosen, and we are not convinced that it acted dishonestly in the performance of its duties. Even if it was granted that the individual votes, the validity of which is challenged, should be thrown out, it would not change the result of the election, as they would not nearly equal 'the declared majority of 66 votes in favor of Hartland.
There is a good deal of incompetent testimony included in the report of the commissioners, such as the general rumor about the honesty of the several county-seat elections held in Kearny county, and other hearsay testimony, as well as ex parte affidavits, which have not been referred to in this opinion and should not have been brought into the record. An examination of that which is admissible leads us to the opinion