Kirkpatrick v. Vickers , 24 Kan. 314 ( 1880 )

The opinion of the court was delivered by

Valentine, J.:

This is an action of mandamus brought originally in thig court by H. N. Kirkpatrick and others, who claim to have been elected officers of the city of Anthony, (a city of the third class,) at an election held in said city on April 5,1880, to compel the defendants, G. W. Vickers and others, who are the city councilmen and the board of canvassers of that city, to canvass the returns of said election. An alternative writ of mandamus has been issued in the case, and the defendants make return thereto that they have obeyed the mandate thereof by canvassing the said election returns. The plaintiffs controvert the truth of this return, and' the only question in the case is, whether the return is true or not; that is, have the defendants in fact canvassed said election returns? It appears from the pleadings and evidence that at said election in said city, two election polls (instead of one) were opened, that at each of which votes were received, that returns from each were duly made to the city clerk, that the defendants, as a board of canvassers, at first refused to canvass either set of said returns, but afterward, and in assumed compliance with the mandate of this court, canvassed one set of said returns, and refused to canvass the other set. The plaintiffs claim that the returns which the board canvassed were not the returns of the legal election held in said city, but that the returns which the board refused to canvass were such legal returns. The only question then for us to determine is, which of said two elections was legal? Or rather, was the election, the returns of which the board refused to canvass, legal? For if said last-mentioned election was not legal, then we must decide this case in favor of the defendants, whether the other election is valid or not, for the plaintiffs in this case found their entire cause of. action upon the election, the returns of which the board refused to canvass.

Both elections were held at the same time and in the same building — the county court house. This court house is a small one-story building with two rooms, and a board partition between the rooms, and a door and one or two scuttle-holes in such partition, giving access from one room to the other. This is the place where elections were generally held, and where the people universally understood that they were to be held. The elections, however, were generally held in the south room of said court house. The city council had also previously passed an ordinance that the elections should be held at the police judge’s office, and by using the words “police judge’s office,” they meant the south room of said court house, but the police judge never in fact held his office at the court house, and never in fact did any business there, but in fact did all his business as police judge at his own private office, about four hundred yards distant from the court house. At about 7 o’clock in the morning of the first Monday in April, (April 5,) 1880, the day on which the city election was to be held, the voters of the city of Anthony commenced to congregate at said court house, for the purpose of holding their city election. The couuoilmen who had been designated by the mayor and council to serve as judges of the election, failing to attend, or refusing to act, the bystanders proceeded to elect judges for such election, and these judges appointed the- clerks. This was all done before 8 o’clock. About ten or fifteen voters participated in this organization. Very soon afterward, and about 15 minutes before 8 o’clock, other electors having arrived, and being dissatisfied with said organization, a second organization was perfected. A full set. of judges was elected for this second board, and a full set of clerks appointed — all according to law, provided the electors present then had the power to organize an election board. There were about twenty or twenty-five electors who took part in this second organization, and this organization was perfected before 8 o’clock of the morning of the election. Both organizations were effected in the south room of said court house. As soon as the second board was organized, it went into the north room of the court house and received votes through a scuttle-hole in said board partition — the voters standing in the south room. The first board remained in the south room and there received votes. Twenty-nine votes were received by the first board, and fifty-one by the second. It does not appear that any illegal vote was polled at either place, or that any elector voted more than once. There were about ninety-five legal voters residing at that time in the city of Anthony.

Upon the foregoing facts, we are of the opinion that the second board (the board last organized) was the legal board, and that the election held by it was the legal election.

We do not think it makes any material difference whether said court house, or the south room of said court house, was, strictly speaking, the police judge’s office or not, for all the people of the city of Anthony seem to have recognized it as the proper place for holding city elections. Nor do we think that it makes any material difference that the second board retired to the north room of the court house, for the voters, with one or two exceptions, came into the south room and voted from the south room. And evidently all the electors who voted, or offered to vote that day, knew of the existence of both boards. Besides, not only a large majority of all the voters who voted at that election, but a majority of all the voters residing in the city of Anthony, recognized the second board as the legal board, and intrusted their ballots with it. But was said second board legally organized? This is really the most serious question involved in the case. We think it was. Indeed, we think that either board was properly enough organized to be valid if the other board had not been •organized, and yet neither was organized in strict conformity to law. Both were organized too soon. In strict law, no set of “bystanders,” or set of “electors present” at the voting-place on the day of election, has any right to elect the judges of the election until the hour of 8 o’clock in the morning of such day has arrived. (Comp. Laws 1879, §6, p. 188, and §3, p.389.) Up to that hour it is reasonable to suppose that the regular judges of the election will make their .appearance, and will take their places and hold the election. At least, up to that hour they have the right to do so. And if an organization is effected by the bystanders before that time has arrived, any subsequent appearance and offer to act by the regular judges of the election before 8 o’clock would certainly set aside such premature and untimely organization. But suppose that only one'of the’ regular judges should so appear, which one of the judges elected by the bystanders should give place to him? That he would have the right to take the place of some one of such judges, cannot be questioned.- Indeed, any election of judges of election before 8 o’clock in the morning can be at most only provisional; and judges so elected must give place to the regular judges, or to subsequently-elected judges, provided such regular judges, or subsequently-elected judges, appear and demand their places at any time before 8 o’clock in the morning. The bystanders or electors present at an election-place have no right even to vote for judges of the election until the hour of 8 o’clock in the morning shall have arrived. They may elect the judges and organize the board at any time after 8 o’clock in the morning, during the day, but they cannot legally do so before that time. But if they do, if they elect the judges before that time, then the most that can be said in their favor is, that the election of the judges will be treated as valid unless the regular judges subsequently appear at or before 8 o’clock, or another election of judges is had at or before that time. If a second election and second organization is had before 8 o’clock, (and that is this case,) then the first organization must give way to the second, and must be treated as invalid. And the second election, the second organization, and the second election board, will be deemed and held to be legal and valid unless something else transpires to render it invalid. As before stated, there can be but one legal election board at the same time and for the same election precinct.

In the present case, the second organization has many advantages over the first. It was the last organization effected before 8 o’clock in the morning. About twice as many electors participated in effecting the second organization as in the first. A large majority of the electors present when the hour of 8 o’clock arrived (both boards being elected in the same room) were favorable to the second organization, and not to the first. More than twice as many votes were received by the second board as by the first. And a majority of all the legal voters of the city of Anthony recognized the second organization as the legal and valid one, and deposited their ballots w'ith such second organization.

Judgment will be rendered' in favor of the plaintiffs and against the defendants, and a peremptory writ of mandamus awarded.

Horton, C. J., concurring.