Hay v. Keeshan , 83 Kan. 438 ( 1910 )

The opinion of the court was delivered by

Smith, J.:

It is conceded in this case that a certificate, or petition, properly signed by 118 electors of the county is sufficient to nominate an independent candidate for county treasurer. A petition was filed with the county clerk containing the names of 125 electors nominating the petitioner as an independent candidate for county treasurer of Geary county, but less than 118 of the signers thereto stated their residence and post-office address thereon.

Objections were filed to the petition, and the clerk of the court, county clerk and county attorney met to consider the objections thereto. They found, in substance, that the petition was properly signed by only 108 of the electors, and that the other signers had not stated their residence and post-office address. Thereupon 17 of the signers to the original petition, who had not stated their residence and post-office address thereon, filed an amended petition stating the residence and post-office address of each. The tribunal, however, decided that the petition was insufficient and that it could not be corrected by the amended certificate. This decision was erroneous. (Laws 1897, ch. 129, § 9, Gen. Stat. 1909, § 3256; Simpson v. Osborn, 52 Kan. 328, 332; Rathburn v. Hamilton, 53 Kan. 470.)

That the decision of the clerk of the court, county, clerk and county attorney holding a nominating petition insufficient creates a vacancy is plainly indicated by the section of the statute and the decisions above cited. It is as plainly indicated that the vacancy maybe filled by the persons or organization making the original nomination, and it was said in Rathburn v. Hamilton, supra, at page 475, that such vacancy may be so filled at any time before election.

Section 3257 of the General Statutes of 1909 (Laws 1897, ch. 129, § 10) expressly provides that the decision of the officers designated to consider objections to a certificate of nomination, or petition, shall be final. We can not, therefore, disregard or correct this decision ; but, as before indicated, there is an express remedy provided by statute.

The writ of mandamus prayed for is therefore denied.