State ex rel. Ayres v. Stockwell , 7 Kan. 98 ( 1871 )

The opinion of the court was delivered by

Brewer, J.:

1. Practice, mo-demurrer. This is an application for a mandamus-compelling defendants, who are alleged to be county officers of Ottawa county, to remove their-offices with all records, books, and papers to the town of Lindsey in said county. The respondents-have moved to set aside and quash the alternative writ heretofore issued, on the ground that the same does not state-facts sufficient to entitle the relator to the relief sought. This motion to set aside is equivalent to a demurrer to a. petition in an ordinary action.

2. mandamus wherepíityiias ft plain and adequate remedy, II. The question to be decided in this case .is not whether the relator is entitled to relief, but whether the *8 entitled to relief in this way, that is, by mandamus. “ This writ may not be issued in v u aDy cage there is a plain and adequate ‘‘ remedy in the ordinary course of the law;” § 689, civil code. It appears from the writ' that the respondents removed their offices from Lindsey to Minneapolis about the first of June, 1870, alleging as a reason therefor that at an election held on the 21st of May, 1870, for the relocation of the county-seat of Ottawa county, the town of _ Minneapolis received a majority of all the votes cast, and that the county commissioners duly canvassed the votes, •declared the result, and required them to move their offices to Minneapolis. The relator further alleges, (as shown by said writ,) that such supposed election was invalid because no sufficient order for such election was ever made by the county commissioners, and no notice vof an election on said 21st day of May ever given or posted. These allegations present a question as to the validity of the election of May 21st, 1870. The act of 3d March, 1869, (eh. 27, p., 101, ^* ) furnishes a plain and adequate mode in the ordinary course of law for testing such •question by contesting the election. The fact that the time in which relator could initiate such contest has passed, makes no difference. If he ever had the right, and has slept upon that right, he cannot now plead his own laches as a ground for obtaining a remedy which otherwise he would not be entitled to.

3. cn. 27, lawsoi S?d towffwd1’ remedy. III. But counsel for the relator claims that the errors he presents as vitiating that election are such as cannot inquired into in proceedings under said ch. 27, Laws of 1869; that in proceedings under 8£1^ ac.f. fjjg inquiry jg limited to the reception of illegal or rejection of legal votes, the conduct of the judges, the form of the returns, and other circumstances of the voting and canvass of the votes. The errors alleged in this case are antecedent to the vote, and in matters upon which the right to have a vote depends. Notwithstanding something of ambiguity in the language we are constrained to the opinion that the construction claimed is an undue restriction of the meaning and reach of the act. Section one gives the elector the “ right to contest the validity of the vote.” Now, the “ validity” of the vote depends as much on the steps anterior to the opening of the polls, as on the manner of opening the polls and receiving the ballots. It is a general, comprehensive term, and includes all those matters and things which go to affect the conclusiveness of the result Bought to be attained by the vote. Again, section eight provides that if upon the trial the court finds “ that illegal votes were cast, * * * by reason whereof, or for any other reason, whether the same be illegal votes or illegality of any kind in the election, or any proceeding therewith connected., the result of said election or vote thereupon * * is contrary to law, * * * it shall be the duty,” etc. Section nine also reads: “But if said court * * * find that the result of said election or vote would not .by reason of illegal votes, or other sufficient cause affecting its legality ” etc. These two sections seem to us ,to strengthen the construction we have placed on the language used in the first section.

It appearing to us therefore that the relator had a sufficient remedy under said act, we sustain the motion to set aside the writ at the costs of the relator. ^*

All the Justices concurring.