60 Kan. 201 | Kan. | 1899
The opinion of the court was delivered by
The defendant in error, J. M. Jones, filed a petition in the district court of Douglas county, alleging in substance that on the 6th day of April, 1897, there was held in the city of Lawrence an election of city officers, at which the plaintiff was a can
The defendant Watt answered in substance as follows : (1) A general denial of all the allegations of the petition not admitted in the answer; (2) admitting that there was an election on April 6, 1897, in the city of Lawrence, and that the plaintiff and defendant were both candidates for the office of councilman for the fifth ward; that the defendant was the regularly nominated candidate for said office on the republican ticket, and that the plaintiff was the regu
“Whereas, the city council of the city of Lawrence, sitting as a contest'board, having recounted the ballots cast at the said election held April 6, 1897, for the election of councilman of the fifth ward in said city ; and
“ Whereas, on such recount J. M. G-. Watt received*205 for councilman of the fifth ward in said city 152 votes and J. M. Jones 149 votes : therefore, be it
“Resolved, that J. M. G. Watt be and is hereby declared as councilman from the fifth ward in the city of Lawrence ; and be it further
“Resolved, that the mayor and clerk be-authorized and directed to issue to him a certificate of election as such councilman.”
The defendant alleged further, that thereupon said mayor and clerk made and issued to the defendant Watt a certificate of election, who duly qualified as councilman from said fifth ward, and entered upon the discharge of the duties of his office, and has ever since held and still holds said office, and enjoys all and singular the honors and emoluments thereof; that by reason thereof said contest is now fully settled and determined, and no cause of action accrues to said plaintiff to relitigate said contest in an independent action; (5) the defendant below further answered, that at said election he received a majority of all the votes cast in said fifth ward; that the total number of ballots cast was 333, of which the defendant Watt received 157 and the plaintiff Jones 149 ; that, of said number of votes cast for said plaintiff Jones, seven illegal ballots were cast and counted for him, containing identifying and distinguishing and other improper markings, and that the same could not be lawfully counted for said Jones ; ■ (6) that five persons who had no legal capacity to vote appeared at said voting place in the fifth ward, and voted for said plaintiff Jones ; (7) that a recount of the ballots cast at said election in said fifth ward would show that defendant Watts received a majority of all the votes cast for councilman in said fifth ward, and was legally entitled to hold said office.
We are not informed as to Ihe precise point upon which the demurrer to the answer was sustained. The defendant in error made no appearance in this court, and no briefs have been filed in his behalf. The allegations contained in paragraph 4 of the a?rswer relate to contest proceedings commenced by the defendant below before the city council. That tribunal seems to have been authorized by ordinance to hear and decide contests between persons claiming to have been elected to any city office. In the answer it is referred to by title as “An ordinance relating to elections ” ; but its contents are not pleaded, and our only knowledge of it is derived from the brief of the plaintiff in error. All the proceedings of the council as a contest board, and its authority so to act, are based upon its provisions. The resolution ordering a certificate of election to issue to the defendant is but declaratory of the findings of the council so assembled by virtue of said ordinance. Unless the court below could have taken judicial notice of this ordinance, it could not have considered the proceedings had before said contest board, or the result. This was a civil action between individuals, and we think the rule is well established that, in such cases, an ordinance, which is a mere by-law of a municipal corporation, must be pleaded either by quoting its language or stating the substance of its provisions. A reference
Upon this question this court has heretofore gone no further than to hold that in misdemeanor cases, where an appeal is taken from the police court of a city to the district court, the latter will take judicial notice of the ordinance under which the defendant is being prosecuted. In such cases the district court is pro hac vice the police court. (City of Solomon v. Hughes, 24 Kan. 211; Downing v. City of Miltonvale, 36 Kan. 740, 14 Pac. 281.) It follows then that paragraph or count 4 of the answer stated no defense to the allegations of the petition, nor did it set up any grounds of counter-claim which could be considered by the court.
The fifth and sixth counts of the answer state sufficient facts to constitute a defense to the plaintiff’s claim. They aver that the total number of ballots cast was 333, of which the defendant received 157 and the plaintiff Jones 149; that there were seven illegal ballots cast and counted for Jones, containing identifying and distinguishing marks; that five persons who had no legal capacity to vote appeared at the fifth ward polls and voted for the plaintiff Jones. The allegations of said counts or paragraphs, if proved, would have entitled the defendant Watt to the office. (Dorey v. Lynn, 31 Kan. 758, 3 Pac. 557.)
The facts set up in these paragraphs were sufficiently and definitely pleaded to stand good as against a demurrer.
The answer, however, nowhere alleges that Watt,
The answer of Watt is in the nature of a cross-petition, in which he asks affirmative relief against Jones and prays that he be adjudged to have been elected. His demand is based upon the fact that he received 157 votes and Jones 149 ; that illegal ballots were cast for Jones, which had distinguishing marks upon them and ought not to have been counted for Jones, and, further, that five persons who had no legal capacity so to do voted for Jones. This demand of the defendant below for affirmative relief should have