Citation Numbers： 42 Kan. 120
Judges： Horton, Johnston, Valentine
Filed Date： 7/15/1889
Status： Precedential
Modified Date： 9/8/2022
I cannot concur with the findings of fact or the conclusions of law stated in the foregoing opinion. As I understand the testimony, great injustice is done to the honest voters of Gray county if the judgment is permitted to stand.
I. This proceeding was brought in this court to determine the permanent county seat of Gray county, and if I could conscientiously say from the testimony that a majority of all the voters of Gray county, not influenced by bribes, nor by any other corrupt or illegal means, cast their ballots for Ingalls on October 31, 1887, for the county seat, I would very willingly agree to the judgment. This has not been established to my satisfaction. It is stated in the opinion that at the hearing of this cause before the commission, each side was given five hours for oral argument. The members of the court did not have the opportunity or privilege to hear these oral arguments. After considering the arguments, the evidence and the briefs, the commission made their report. Among other things stated in that report, it was said:
“This case can fairly be said to embody the sum of all election villainy. If there is any one particular crime connected with the conduct and the result of an election that was not committed in Gray county on the 31st day of October, A. D. 1887, our research has been in vain, for we have failed to find it.”
That the commission with some hesitation reached a conclusion in favor of Ingalls, is shown by the following extract from the report:
“Wehave waded through the scum, filth, and mercenary*136 degradation of this record, and find but little to commend in the action of either party.. We must conclude as a matter of legal inference, from want of attack more probably than from any other circumstance, that there were some honest votes cast at that election. There is nothing left for us to do but to endeavor to give expression to the declaration of an honest majority. We hope and trust that we have found it rightfully."
This is not the language of confidence or certainty.
II. Again, the commission concludes its report as follows:
“ The prevailing practice in these county-seat contests is for each party to import into the county a crowd of men who have the reputation of being ‘killers.’ It may be in some cases they do not vote, but we suspect that generally they do. The evident purpose of such an importation is to intimidate voters, and to have on hand and ready for any emergency that may arise, a class of men who would not hesitate to commit any crime, or number of crimes, that would give success to the party that pays them. The importation of such men causes a very strong presumption that they are employed for purposes connected with these elections that all ordinary men would hesitate to perform. Their employment is a reflection on the courage and honesty of the community that suffers such an outrage to be perpetrated, and causes their own acts to be regarded with some degree of suspicion. Their presence in a county that is cursed with a county-seat contest is a constant menace to the lives of many quiet and innocent people. One of the best indications that people desire an honest and peaceable election is their refusal to employ a horde of these conscienceless scoundrels; while on the other hand, their presence at the polls irresistibly leads to the conclusion that they are hired for criminal purposes.’’
These general remarks of the commission can be very appropriately and fittingly applied to the conduct of the owners and friends of Ingalls. The opinion admits that —
“The principal persons engaged in bribing and influencing voters to vote for Ingalls were Asa T. Soule and his agents. Soule is a very wealthy man residing at Rochester, New York, and his agents who were engaged in this business are principally, if not entirely, non-residents of Gray county. The bribing on the part of Ingalls was nearly all done in Cimarron township, though some of it was done in some of the other townships.”
Edward M. Ratcliff testified —
“That on election day many non-residents appeared in Cimarron: Geo. Gilbert, Bob. Wright, Henry Wright, Eat-em-up-Jake, Ben. Daniels/,Bat Masterson, Ed. Prather, Burns, Bill Tighlman, Fitzgerald, Conk. Jones, Baldy Scott, about sixteen in all.”
“ That all he saw were armed; that they stopped at the Merchants’ Hotel; that their headquarters were in the parlors of the hotel; that Mr. Gilbert was with them; that he understood at the time that Gilbert was buying votes.”
John G. Gilbert testified —
“That he was the financial manager of A. T. Soule; that although he was a non-resident of Gray county, he was in*138 Montezuma township on October 31, 1887 — the day of the county-seat election.”
He was asked “What he was doing in Montezuma township all that day?” He answered: “Went down there to see how the feeling of the people was.” He also testified “That A. T. Soule was worth $8,000,000 or $10,000,000.”
“Q,. You know that Mr. Soule has been interested in this county-seat contest ? A. Yes, sir.
“ Q. Don’t you know that he has been spending some money up there? A. I would suppose that he had.”
Geo. G. Gilbert testified —
“ That he resided in Speareville, Ford county; that prior to August 31, 1887, he handled some lands for A. T. Soule; that he was also superintendent of a canal company, and that Mr. Soule’s money was used in the construction of the canal; that he was at Cimarron on October 31, 1887; that he drove there from Ingalls; that he arrived at Cimarron about nine o’clock a.m. ; that he went to the Merchants’ Hotel, and sat in the hotel most all the day; that this was about half a block from the polling-place; that he remained there until the next morning, when the train went east; that there were others at the hotel, among them Ben Daniels, Bat Masterson, Bob Wright, Henry Wright, Dave Morrow, Bill Tighlman, D. Gardner, Jack Flood, and John Sheridan.”
He further testified:
“Q,. Did anybody have any guns up there ? A. Yes, sir.
“Q,. Who had the guns there? Please name the men — state where they were situated with their guns. A. Why, there were several of the boys had their guns in what they call the ‘parlor,’ up there.
“Q. Who were they that had their guns there? A. I don’t know as I know which ones had the guns; I could not tell; I know the boys went there, 15 or 20 of them, and took some guns there; they were sitting in the room.
“Q. As a matter of fact did not they all have guns there, these 15 or 20 men that you have spoken of? A. I suppose they did.
“Q. What kind of guns did these men have there in that parlor ? A. There were some shot-guns there, and some rifles.
*139 “Q,. As a matter of fact, most all these men had side-arms: or did they not ? Perhaps every one of them. A. I don’t know; I did not see them; they might have had them in their pockets.
“ Q,. Did they have any ammunition there in any of these rooms? A. Yes, sir.
“ Q. What room ? A. In the parlor or sitting-room.
“Q,. In the parlor where the guns were? A. Yes, sir.
“Q,. When did you arrange with those boys to go up there —this 15 or 20 men that you speak of? A. I don’t know as there was 15 or 20 of them; I guess there was hardly that many.
“Q. There were 16 men in all were there not? A. I don’t remember; I did not have their names down.
“Q,. When did you say you arranged with them to go there? A. I don’t remember; just a few days before the election.
“ Q,. Who did you arrange with to become manager of the forces there ? A. I talked with Mr. Masterson and Mr. Tighlman.
“Q,. Bat Masterson and Bill Tighlman? A. Yes, sir.
“Q,. Which one of those men was understood to be the manager of the thing? A. I guess both of them.
“Q. The other men were under them particularly? A. Yes, sir.
“Q. Under their direction ? A. Yes, sir.
“ Q,. These men all have the reputation of being brave men, and sure shots, did they not? A. They had the reputation of being pretty brave fellows if it was necessary.
“Q. They were understood to be so throughout this entire country, were they not ? A. I expect so.
“ Q,. And they were employed and taken there for that very reason — because they were so understood to be acquainted with the trigger, and brave men, and fighters if necessary? A. Yes, sir.
“ Q,. How much were you to pay these men for their work there? A. I agreed to pay some of them $25 for their day’s work, and some of them $50.”
The presence of the above-named non-residents, many of whom were “toughs” and “killers,” in Gray county on the day of election, was a menace to the honest voters. These non
“The importation of such men causes a very strong presumption that they were employed for purposes connected with the election that all ordinary men would hesitate to perform.”
I cannot find from the testimony that the friends of Cimarron imported to Gray county, to participate in the county-seat election of October 31st, such a crowd of “killers” and “roughs” as is shown to have been brought in by Gilbert — the agent of A. T. Soule; but if it were true that the friends of Cimarron were equally guilty in that respect, then an election so menaced cannot be regarded as fair or honest, and therefore ought not to stand. It ought not to stand, if for no other reason, because of the moral effect that it will have upon future elections in the state.
III. The report, after stating that the friends of Ingalls kept in Cimarron on election day “an open market-house, hedged about and protected by a gang of reputed cut-throats and villains, where men’s votes were bought and sold as so many steers in the pasture, or sheep in the pen,” concludes that this affords another and very important reason why the returns from this township should not be considered. In other words, one of the reasons for rejecting the returns from Cimarron, and thus making Ingalls the county seat, is that the friends of Ingalls were guilty of great wrongs and crimes in Cimarron on the day of election, and therefore they are to be greatly benefited thereby. To me this seems unfair, and not in accordance with common justice. I never supposed that in a court the frauds and crimes of a party could be established as the foundation of any legal rights.
IV. In the opinion the title of this action is given, and the names of the parties. It is further stated that “ the attorney general has taken no part in the action, except merely to permit his name to be used.” The opinion, however, wholly
“Q,. Can you state who employed the attorneys in this present suit for the defendants? A. I think the attorneys are all employed by Mr. Soule by the year, to attend to all and any of his business that he may have occasion to attend to.
“Q, Who employs Mr. Whitelaw in this suit? A. Mr. Soule, I think.
“Q,. Who employs Mr. Dunn? A. I think Mr. Soule.
“Q. Who employs Mr. Frush? A. Soule, I think.
“Q,. Who employs Mr. Jennings? A. Soule, I think.
“Q. Who employs Mr. Sterry? A. Soule, I think.
“Q. Can you state whether or not Mr. Soule put up money in payment of witnesses in behalf of defendants in this proceeding ? A. I don’t know.
“Q,. Never heard him say so? A. No, sir.
“ Q,. Who put the money up ? A. I have been paying the commissioner.
“ Q,. I thought you said you had nothing to do with it ? A. I understood that that was the county campaign business.
“Q,. Whose money is that that you pay to the commissioner? A. Mr. Soule’s money.
“ Q,. Have you paid any of the witnesses ? A. I suppose they have been paid out of that money.
“Q,. Where did you put the money? A. Put the money to the credit of Mr. Guynn, at Ingalls.
“ Q,. How much did you put up ? A. I don’t remember.
“Q,. In the neighborhood ? A. I think for the commissioner and expenses of the marshal something like four or five hundred dollars.
“Q. How much for the witnesses? A. That is all together.
“Q,. That is all A. T. Soule’s money? A. Yes, sir.”
He also further testified:
“Q. Did you ever, during the year 1887, give Mr. Dunn any money ? A. I think I did.
“Q,. How much? A. I don’t remember.
*142 “ Q,. And what for was it given ? A. I might have given him something like $1,100.
“Q. For what? A. Services as lawyer.”
This is further testimony that “outsiders” and “non-residents” of Gray county are attempting to locate the county seat of that county and control its local affairs. If neither the defendants in this action nor the voters of Gray county are sufficiently interested to pay the attorneys for defending this action, or furnish money for the fees of the commissioner, or witnesses, it looks very much as if neither the defendants nor the voters of Gray county were very much interested in the case as against the claims of the plaintiff
Y. Several pages of the report are taken up with statements concerning the rejection by the Cimarron people of a proposition made by alleged representatives of Ingalls, preceding the election, to permit persons favorable to Ingalls to be present at the election and count, in all the precincts known to be favorable to Cimarron for county seat. To fully understand this matter, additional facts appearing in the testimony ought to be stated. The first inquiry naturally is, who were these representatives of Ingalls ? The testimony fully discloses. John W. Gilbert, the financial manager of A. T. Soule, testified that the proposition referred to in the report was made by himself, in company with his brother, George G. Gilbert, R. M. Wright, and Bat Masterson. All of these persons were and are “non-residents” of Gray county, and had no more right or authority to interfere in an election of Gray county than any citizen of Shawnee or Leavenworth county. The people of Cimarron might very properly have refused to hold any communication or consultation with these “non-residents” about the county-seat election, and ought to have resented such unwarranted interference from “outsiders.” This committee of “non-residents” also submitted a written proposition to certain residents of Cimarron concerning the conduct of the county-seat election, and this writing was signed by John W. Gilbert, R. M. Wright, G. G. Gilbert, A. T. Soule, and his attorney, Geo. W. Dunn. Every person who signed this
“Any delay or postponement beyond Saturday night next, upon any pretext, for the purpose of consultation, or otherwise, we shall regard as a refusal, and govern ourselves accordingly.”
Not only was this proposition presented by “ non-residents” of Gray county, but it contained a threat, which constituted a gross insult to the people of Cimarron. If I understand the testimony in the record correctly, the only resident of Gray county who made any request of the people of Cimarron to have representatives of Ingalls witness the election proceedings in the precincts favorable to Cimarron, or who requested any Ingalls partisan to be admitted in the voting-room at Cimarron where the election was being conducted, was George ~W. Dunn, of Cimarron. Mr. Dunn at the time of the election was a resident of Cimarron, but had been employed to work against his own town in the interest of Ingalls. Concerning Mr. Dunn’s conduct a few days prior to the election, C. J. Dixon testified:
“I went over to my brother’s house — I think it was on Monday evening, the day before the election — and as I was leaving his porch Mr. Dunn spoke to me from his porch, and said he would like to speak to me, and I went over and spoke to him, and had a little talk with him, and he asked me if I knew who was going to be the board, [election board at Cimarron,] and I told him ‘ no; ’ and I related to him this remark that had been made to me in substance, and he said, ‘You think you will be on the board?’ and I says, ‘I don’t know;’ I just related what I heard; and he says, ‘If you go on the board and represent Ingalls, you and I can make a heap of money out of it.’ I said, ‘Is that so?’ He said ‘Yes.’ He says, ‘I will give you some money if you will give me half of it, and go on the board asan Ingalls man.’ He says, ‘Of course we would not want the people here to understand that you represented Ingalls, but if you get your money we will expect you to do all you can to aid and abet Ingalls.’ He*144 said a whole lot of truck. There was one idea of the whole business — that he could get me $1,500 if I would give him $750.”
There was other testimony given of similar import. • It is but just to Mr. Dunn to say that he denies these statements, and that upon this matter there is a conflict of testimony.
VI. The action of the “Equalization Society,” which was formed to sell the votes of its members for the location of the county seat, is properly condemned and denounced in the report. The report, however, omits to state that A. T. Soule a few days before the election visited the “ Equalization Society ” when it had a meeting in a “dug-out,” and had a talk with its members. Of some of the proceedings at that meeting Silas Ballah testified as follows':
“Q,. Mr. Soule was once there at the society? A. Yes, sir, he was there one day.
“ Q,. Did he make a statement that he would donate more to the society than any other man ? A. I do not think he did it that way.
“ Q,. How did he do it that day ? A. He said he would do better.
“Q,. What did you understand by that? A. I supposed he would give more.”
Of this meeting Lee Grand Marshall testified that—
“Mr. Chipman, the chairman of the meeting, introduced him to the society as Mr. Soule, from Rochester, N. Y., and he made a bow, like.
“Q,. Well, he told an anecdote: now go on and state what else he said, if anything. A. Why, the chairman asked him ‘if he had anything to say to the society,’ and he said ‘he did not know;’ says he, ‘What do you want?’ Chipman says, ‘Most anything, I guess,’ is the way he said, ‘to help us on our claims in the way of donations; we are open and ready for donations.’
“Q. What reply was made, if any? A. Chipman remarked that ‘ We want something to help us to stay on our claims,’and when he made that remark, Soule says, ‘How will a sugar factory suit you fellows out here?’ Henry Kopp spoke up and says, ‘A sugar factory would not help us much, this winter; we want to start a grange store; ’ and then Mr.*145 Soule remarked again that ‘He thought a sugar factory would be a good thing for this country out here; that they could not raise much else;’ and Harry says,‘That, would not do us any good this winter;’ and Mr. Soulesays, ‘ You want refined sugar, then;’ Kopp says, ‘We want refined sugar, that is what we want;’ and Mr. Soule said then, ‘If I give you refined sugar, as you call it, how will I know whether I get a solid vote of the society, or not?’ Mr. Chipman, the chairman, spoke up and said, ‘You won’t know that; every man of the society has a right to vote for their own interest. We are not selling our votes. If you have anything to donate to the society, you can do so.’ Then Mr. Soule says, ‘Now what will I get then for the donation of the sugar?’ I can’t just tell the words that was used; ‘if he would donate anything, what would he get for it;’ and Harry Kopp spoke up and says, ‘You will get the good-will of the society, if nothing •else.’
“ Q,. What did you understand that he meant, and what did the society generally seem to understand that he meant by wanting to know whether he would have the solid vote of the society, or not? Solid vote for what? A. Well, when he said, ‘ How will I know whether I get a solid vote of the society ? ’ after Chipman spoke, Charles Dunlap was there, and he got up and says; ‘Mr. Soule, if you come out here to buy votes, you are off; you cannot buy one vote of this society for a thousand dollars;’ the old man kind of dropped his head, .and seemed sold.
“Q,. What did he say he would do before he left, if anything, for that society? A. After he found out the sugar factory did not take very well, Mr. Chipman, the chairman of the society, said, ‘ Mr. Soule, are you going to do anything for this society?’ He says, ‘I am going to do the best;’ and Chipman asked him the same question I guess about three times, and he answered the same way every time, ‘that he was •going to do the best.”’
In this connection, to show the systematic and wholesale corruption which permeated Gray county prior to and at the •county-seat election, I cite from the record, which is full of like instances, the following testimony of the conduct of A. T. Soule in his attempts to control illegally the result of that ■election. E. E. Bowlus testified:
“ That he voted for Ingalls; that Smith Payne came to him*146 and said, U want you to buy votes/ and gave him some money.”
Smith Payne testified:
“Q,. From whom did you get the money that you paid Bowlus? A. I did not get any money; I got a check.
“Q. Did you get a check through the mail? A. I got it personally.
“Q. From whom? A. A. T. Soule.
“Q,. Directly? A. Yes, sir.
“Q,. Through the intervention of no other hand? A. No, sir.
“Q,. Where was he when he handed you the check? A. He was in the hotel.
“Q,. On what day did he hand you the check? A. It was on Saturday, before that first election.
“Q,. Before the October election? A. Yes, sir.
“Q,. When did the October election occur? A. On the 31st of October.
“Q. What did you do with the check? A. I gave it to Mr. Bowlus.
“Q. What was the check for — how much? A. $500.
“Q,. When did you give Bowlus this check for $500? A. Gave it to him on Saturday evening.
“ Q,. Where were you when you gave Bowlus this check ? A. I was at Pierceville, I think.
“Q. Was Bowlus there? A. Yes, sir.
“ Q,. Did Bowlus get the check cashed at Pierceville, or not? A. I guess he did.
“ Q,. How much of that money did he give you back ? A. Not a dollar.
“Q,. Did you give any instruction to Bowlus? A. Yes, sir.
“Q,. What was it? A. Just Mr. Soule’s word.
“ Q,. What was it ? A. Mr. Soule said (to take that money and pay to men to vote for their principles; what they wanted to vote for.’
“Q,. Pay them for honesty? A. Yes, sir.”
W. F. Thompson testified that he lived in Hess township; that he supported and voted for Ingalls. He further answered as follows:
“Q,. Did you ever at any time have any business transac*147 tion with Mr. Soule ? Did you ever pay auy money ? A. Yes, sir.
“ Q. When ? A. I cannot give the date.
“ Q. About when — before or after this election ? A. Before, I think it was.
“Q,. How much did he pay you ? A. $1,000.
“Q. For what? A. Well, expenses and speakers.
“ Q. He gave it to you to expend at that election ? A. Yes.
“ Q,. Who handed you that money ? A. Cashier, I believe, at Dodge City.
“Q,. Was it one of the Gilberts? A. No, sir.
“Q,. Give it to you currency ? A. Yes, sir.
“Q. Took it home with you in small bills? A. Yes, sir.”
John Craycraft testified that he supported Montezuma for the temporary county seat of Gray county, and Ingalls for the permanent county seat.
“Q. You may state what conversation you had, if any, prior to the day of the election, with A. T. Soule, in relation to the expenditure of money in Cimarron on that day. State the full conversation. ■ A. He asked me how much it would take to buy 200 or 230 votes.
“Q,. What did you tell him? A. Take about $25 apiece to buy them.
“Q,. What else, if anything, did he say? A. He wanted to know if that wasn’t a little steep.
“ Q. State what was your reply and his to you. A. I told him it would take about $25 apiece on the average to buy them.
“ Q.. Where did you have this conversation with Mr. Soule ? A. In Ingalls.
“Q,. On what day? A. Saturday before the election.
“Q,. Saturday before the 31st day of October, 1887, election ? A. Yes, sir.
“Q. Now, state what else he said there in relation to this matter, if anything — in relation to the expenditure of money that day. A. He got a little scared at Cap. Shaw, a traitor.
“Q. What did he say about Cap. Shaw, if anything? A. He said he was afraid Cap. had gone back on him.
“Q,. In the county-seat fight? A. Yes, sir.
“Q. Go on and relate the conversation. A. He said, ‘ Great God ! if auy man can tell how much money it will take, I will freely put it up; but I don’t want to be beat with my own money.’
*148 “Q,. What township was he to buy? A. In Hess.
“ Q,. And Mr. Soule stated to you in substance, ' My God! if I knew how much it would take to buy the county seat, I would freely spend it’? A. 'My God! if any man can tell how much it will take, I will freely put it up; I am afraid I will get too much money out, and get beat with my own money.’”
A. T. Soule did not testify in this case, and the foregoing testimony is uncontradicted.
VII. All of the statements and arguments of the opinion attempt to establish mainly the following propositions:
First, that as the alternative writ does not allege any fraud or illegality or irregularity in the county-seat election, or in any one or more of the election precincts, and as the return thereto alleges frauds, illegalities and irregularities only in Cimarron, Foote, and Logan townships, the testimony that the voters in Hess, Montezuma, and other townships were controlled by A. T. Soule and the friends of Ingalls by bribes •or other corrupt or illegal means to cast their ballots for In-galls is incompetent, and should be wholly disregarded.
Second, that Ingalls at the late county-seat election ''received a majority of all the votes actually cast, a majority of all the votes cast by legal voters, and a majority of all the votes cast by honest voters,” and is therefore the permanent •county seat of Gray county.
Of these propositions in their order.
VIII. The objection to a full investigation of the frauds, corruption and violence in Gray county on October 31,1887, and against deciding that “there was no valid election held in that county at that time,” is more fully stated in the opinion in the following language:
“ The only questions presented by the pleadings, as will be seen from an inspection thereof, are as follows: Were there any such frauds, illegalities and irregularities in Cimarron, Foote and Logan townships as are alleged and set forth in and by the defendants’ answer to the alternative writ?”
This statement is technically correct, but considering the
“The evidence of bribery and corruption on the part of A. T. Soule and his agents, the backers and boomers of Ingalls, presents a most revolting spectacle to the minds of decent, honest people; that the corruption fund was so large, and the money so free, we would not be surprised if the court should be in doubt whether Ingalls received a single'honest, unpurchased vote; that it is shown in the two south townships of the county, Hess and Montezuma, that there was a general understanding that if the voters of that territory would vote for Ingalls for the county seat, withdrawing Montezuma as candidate from the race, A. T. Soule, chief backer of Ingalls, would build a railroad, free of cost, east and west through those townships; and that a large proportion of the voters in those townships were induced to vote for Ingalls by reason of the proposition of Mr. Soule to build the road; thát if these voters had been left to themselves, and had not been directly*150 bribed by a pecuniary advantage and consideration to themselves, i. e., the building of this road, and the employment of them in its construction, Cimarron would have received fully three hundred more votes than it did.”
In the abstract of the plaintiff, filed before the trial, about 13 pages were devoted to testimony tending to prove the bribery and corruption of A. T. Soule and his agents in the county-seat election. Ten pages of that brief were also devoted to testimony tending to show an agreement between A. T. Soule and the voters of Hess and Montezuma townships, by which Montezuma was withdrawn as a candidate for the county seat, and the votes of those townships cast for Ingalls, upon the consideration from Soule as above stated. To these claims of the plaintiff, there is nothing in any of the briefs or abstracts of the defendants filed before the rendition of the judgment, which suggests that the testimony concerning the bribes and other corrupt and illegal means employed by A. T. Soule and his agents should not be considered, or that it was incompetent. In examining the testimony and the briefs originally filed, I find no objection presented against a full investigation of all the frauds, irregularities and corruption established. In the original briefs and abstracts, no point was made that the examination of the court as to frauds, illegalities and irregularities must be confined to Cimarron, Foote and Logan townships. This is an original proceeding in this court. The only pleadings allowed are the writ and the return or answer. “These are the pleadings in the case, and have the same effect, and are to be construed, and may be amended in the same manner, as pleadings in a civil action; and the issues thereby joined must be tried, and the further proceedings thereon had, in the same manner as in a civil action.” (Civil Code, §696.) It has been decided time and again in this court, that—
“Where the record fails to contain any reply to an answer alleging new matter, but the case was tried by both parties without any objections on the account of the want of a reply, this court will treat the case in the same way.” (Bent v. Phil-*151 brick, 16 Kas. 190; Wilson v. Fuller, 9 id. 177; Netcott v. Porter, 19 id. 131; Nooner v. Short, 20 id. 524.)
As the only pleadings in a case of this kind are the writ and answer, the court may at any time before or after judgment, in furtherance of justice, amend the writ by inserting other allegations material to the case, or conform the writ and answer to the facts proved. (Code, §139.) This case, up to the time of judgment, had been tried in every respect as if the writ had been amended so as to conform to the facts proved, and therefore the defendants waived all objections to the court fully considering every fact in the testimony applicable to the county-seat election of Gray county. The questions presented by the pleadings have, in my opinion, been so widened and broadened by all the parties as to include the frauds, illegalities and irregularities established by the testimony in the late county-seat election in every township of Gray county. Of course this includes Hess and Montezuma, as well as all the other townships.
In The State v. Stock, 38 Kas. 158-190, the point was made by the defendants that the evidence impeaching votes cast for La Crosse was incompetent, because not within the pleadings or issues. It was said in the opinion filed upon the rehearing, that —
“This case does not come here by appeal or on error. Being an original action, the pleadings may at any time in the furtherance of justice be amended. Therefore, if under the pleadings the evidence of the illegal votes cast for La Crosse was inadmissible, the pleadings, upon the facts disclosed in the testimony, might be considered as amended. We think, therefore, as stated in the original opinion, that All evidence tending to show fraudulent practices by illegal votes cast for and legal votes rejected for both places was admissible.’”
This, and other authorities of a like kind which might be cited, fully and clearly dispose of, I think, the point that the court, under the pleadings and record, can only investigate the frauds, illegalities and irregularities in Cimarron, Foote and Logan townships. But I go further than this. If it is established by the testimony — and I think it is — that the
IX. It is said in the opinion that, “Upon the oral argument on the hearing of the motion for a rehearing, and for the first time by any party to the action, it was claimed that there was no valid election held in Gray county on October 31, 1887.” This, however, ought not to bar the plaintiff from having the court fully consider the claim. No oral argument was presented in this case to the court until the application for a rehearing wras heard. This was an original proceeding in this court, and in such a case oral argument cannot be denied to either party before judgment. In a case like this, the court is a trier of facts as well as of law. (Douglass v. Hill, 29 Kas. 527; C. K. & W. Rld. Co. v. Town-Site Co., ante, pp. 97, 104; 21 Pac. Rep. 1112-1120.)
I do not think The State v. Coulter, 40 Kas. 673, applies. That was an appeal by the defendant from a conviction in a criminal case. This court had no power in that case to permit the information or pleadings to be amended. This case does not come here by appeal or on error. Being an original action, the pleadings may at any time, in the furtherance of justice, be amended.
X. I come now to consider the statement “that Ingalls received a majority of all the votes cast by the honest and legal voters, and therefore is entitled to the county seat.”
In January, 1871, the legislature of this state attempted to elect Mr. A. Caldwell a United States senator. The whole number of votes cast at that election for senator by the members of the legislature was 123; 62 votes were necessary for a choice. Mr. Caldwell received 87 votes. The candidates opposing, 36. The United States senate investigated this election in 1872-3. It was ascertained in the investigation, among other things, that Mr. Caldwell, just prior to his election, paid Mr. Carney, who was not a member of the legislature, but was a contesting candidate for the United States senate, $15,000 in consideration that he should not be a candidate for senator before the legislature, and should give his influence and support for Mr. Caldwell. Thereon a majority of the committee on privileges and elections of the United States senate, through the able and distinguished senator from Indiana, Mr. Morton, presented a report to the senate that this matter went to the validity of Mr. Caldwell’s election, and had the effect to make it void. On February 17, 1873, Mr. Morton, under instructions from the committee on privileges and elections, presented the following resolution: “Resolved,
Further, in the agreement with Carney, Caldwell dealt with a person who was not a member of the legislature, and therefore had no vote. A. T. Soule dealt directly with the citizens of Hess and Montezuma townships, and the committee appointed by them. They were not only voters, but cast their votes in accordance with the agreement. If Montezuma had been dropped as a contesting town without any agreement with Soule, or if it had been withdrawn because of the public interest of the whole county, or because Ingalls was more centrally located, or because the voters of Hess and Montezuma really preferred Ingalls as the county seat, a wholly different question would be presented than the one raised by the testimony and briefs.
While the briefs of the plaintiff refer to opinion testimony, they also refer in the same connection to the testimony of such witnesses as S. S. Van Wye, who testified that “he first supported Montezuma, but the prospect of getting a railroad influenced his vote for Ingalls;” to Johu Craycraft, who testified “that he was for Montezuma for the temporary county seat, but he voted for Ingalls to get a railroad, and that this was the inducement;” and to very much such testimony as this:
“Q,. Mr. Craycraft, you may state whether you were present at a mass meeting of the citizens of south Gray county at Montezuma sometime prior to the October election, 1887? A. I was.
“Q. At which meeting Mr. A. T. Soule made an address, or talked some in relation to building a railroad through south Gray county? A. I was at two or three meetings when he addressed the people.
*156 “Q. Were you at the mass meeting there at the time that the first proposition was made public by Mr. Soule to build a railroad through south of Gray county, in which resolutions were passed pledging to support Ingalls for permanent county seat? A. I was present.
“Q,. You were present at that meeting? A. Yes, sir.
“Q,. About how many people were present at that meeting, as near as you can remember? A. 250 or 300.
“Q,. You may state the substance of Mr. Soule’s remarks, if he made any there that day. What did he talk about? A. He made the remark ‘That if Montezuma would withdraw from the field as a candidate for county seat in favor of Ingalls, he would build them a railroad.’
“Q,. On what conditions did Mr. Soule propose to build that road, aside from the consideration that the people of that county were to vote for Ingalls for county seat? A. I believe that was all the conditions.
“Q,. Do I understand you to say that the proposition to the people there en masse made by Mr. Soule was ‘that if they would support Ingalls for permanent county seat, that he would build the railroad through south Gray county’? A. Yes, sir.
“Q,. You may state the substance of the motion or resolution that was carried by the vote of that meeting. A. The motion was made ‘that if the people would withdraw Montezuma from the contest in favor of Ingalls, the railroad would be built-.’ ”
XII. The briefs of plaintiff also refer to the resolutions of various public meetings held in Hess and Montezuma townships prior to the election, to consider the propositions of Soule, and also the resolutions adopted at these meetings to vote for Ingalls on account of the agreement of Soule. The briefs also refer to the testimony of G. L. Ensign, who was interested in Hess township, and who testified about Mr. Soule executing a bond in the sum of $75,000. In the contest for temporary county seat Montezuma had 560 votes, Cimarron 705, and Ingalls only 88. One of the witnesses testified that in the vote for temporary county seat some of the voters of Montezuma voted for Cimarron, but none for Ingalls. I think it is clearly manifest from the testimony that but for the bribery and corrupt schemes of A. T. Soule, the principal contesting towns for county seat in Gray county would have been
XIII. Where an election is conducted regularly and legally so far as the officers are concerned, the returns are prima fade evidence of what they purport to show. In Logan township 22 votes in favor of Cimarron are not counted, because procured “by fraud, bribery, and corruption.” The report says: “That the members of this society [Equalization] voted for the town of Cimarron, influenced and controlled by the promise of money, we entertain no doubt; but when we come to determine the exact number of votes and the names of the voters, the proof is not so satisfactory.” All of the members of the “Equalization Society” in Logan township are rejected, not because it was shown by the testimony of each voter that his vote was influenced by the promise of money from Cimarron, but because the conduct of the officers and leading members of that society, the execution of the bond of $10,000, the result of the election in Eoote and Logan townships, and many additional circumstances, convince any reasonable min,d that the members of this secret society voted for Cimarron from corrupt motives. The returns from Logan township were prima fade regular and legal; but if all of the voters of that township had been members of this secret society, for the same reasons that 22 votes are rejected all the votes would have to be rejected. If the same rule be applied to the voters of Montezuma and Hess townships on account of the agreement with Soule to vote for Ingalls, all of the votes of those townships must be rejected excepting such as are shown not to have been improperly or corruptly influenced. This rule would reject all the votes in Montezuma and Hess townships cast for Ingalls, amounting to 431. In the “Equalization Society” a committee was appointed to go to Cimarron and make the arrangement about the votes of the members of the society. In this matter Dunlap and Reeve were active. A bond of
XIV. It is stated in the opinion “That on account of the railroad scheme of Soule’s the voters were not to get anything personal to themselves for anything they did or might do.” It is well known in this state that the construction of railroads is largely aided by county, city, and township bonds. This is universally the case, not the exception. Railroad stock is issued in return for the bonds, but in all the branch or auxiliary roads the stock is comparatively worthless. The bonds to such roads are generally considered a donation. Soule’s road was a small one, only 29 miles long. If the voters of Hess and Montezuma townships had been compelled, in order to obtain the construction of a railroad through their townships, to vote and issue bonds, then the bonds, principal and interest, would have had to be paid in yearly installments by taxes levied upon the property of the townships. Soule’s agreement was to construct his road without any bonds, and without any cost whatever to the people of the townships; therefore the agreement of Soule, and the bond executed by him, were really for the personal and pecuniary benefit of the voters and tax-payers of Hess and Montezuma, and must have necessarily influenced them to vote for Ingalls corruptly, with
XV. Aside from all other matters in issue, I do not think that a majority of the votes cast by the legal and honest voters of Gray county were in favor of Ingalls. The answer of the defendants alleges “ that in the township of Cimarron there were actually cast at said election on the question of the location of permanent county seat 432 votes, of which number about 100 were cast for Ingalls for county seat, and the balance were cast for Cimarron.” This is a solemn admission in the answer of the defendants that in the township of Cimarron 332 votes were cast for Cimarron, and 100 for Ingalls. There is no testimony in the record attacking in any way the legality of these 332 votes. They cannot be thrown out or disrega2’ded upon any theory. If the returns of Cimarron township are wholly disregarded on account of the frauds, illegalities and irregularities of the election officers of that township, 332 votes in Cima2’ron township must be given to Cimarron on account of the statement and admission of the answer, and only 100 to Ingalls. If the 2’eturns in Eoote township be also excluded on account of the frauds of the election officei’s in that township, and the votes influenced by bribes and other corrupt or illegal means in Montezuma, Hess, and Logan townships be not counted, the actual result of the election for county seat in Gray county on October 31, 1887, would be as follows:
*160 INGALLS. CIMARRON.
Montezuma ..... 30
Hess....... ..... 60
Ingalls..... .. 137 17
Cimarron. . .. 100 332
Hogan..... 69 13
Totals 306 452
This would give Cimarron 146 majority.
If all the votes of Hess and Montezuma are thrown out, the result is:
INGALLS. CIMARRON.
Ingalls............................................. 137 17
Cimarron.......................................... 100 332
Hogan............................................. 69 13
Totals........................................ 306 362
This would still give Cimarron 56 majority. But as in Hess and Montezuma townships 90 votes were actually cast for Cimarron, those should be counted for that place, because they were not controlled by the corruption of Soule and the friends of Ingalls.
Again, in Cimarron 24 votes were cast for Ingalls, which are shown to have been cast by the voters personally bribed by friends of Ingalls. These should be deducted from the 100 votes in Cimarron claimed for Ingalls in the answer. With these corrections, the vote would stand:
INGALLS. CIMARRON.
Montezuma 30
Hess....... 60
Ingalls..... 137 17
Cimarron.. 76 332
Hogan..... 69 13
Totals 282 ' 452
This would give Cimarron a majority of 170. This result throws out the returns of Foote and Cimarron townships, because of the frauds of the officers; the bribed votes in Logan, Cimarron, Hess, and Montezuma; and only counts the votes in Cimarron as stated by the answer, less the 24 taken from Ingalls on account of the bribery established by the testimony. In no way can Ingalls be “counted in” as the county seat, unless the votes of Hess and Montezuma townships, which were ■corruptly controlled by A. T. Soule, are counted in its favor.
XVI. When I first examined the report of the commission,
“When two parties (and we do not intend to apply this to the immediate parties in the case, but to the towns of Erie and Osage Mission) who have both by their fraudulent and wrongful acts put vast obstacles in the way of justice, and incumbered the case with embarrassing difficulties, invoke the aid of courts, the courts will not feel much inclined to assist to a very great extent, and especially not in an action of mandamus, where so much rests in the discretion of the court.”
As the people of Gray county can soon determine by a legal election where their county seat shall be, I think the election heretofore held should be declared void, and the question left entirely with them. If, however, upon the testimony a permanent county seat is to be selected, then under the admissions of the answer, and giving proper weight to the influence exercised by the bribery and corrupt schemes of A. T. Soule and his agents, Cimarron has a majority of the legal and honest votes.
XVII. Although the record in this case consists of more than 3,000 pages of testimony reeking with fraud, corruption, and crime, I think the whole contest over the county-seat election in Gray county on October 31,1887, may be summarized in a few words: The legislature in 1887 attached portions of Finney, Ford and Hodgeman counties to form Gray.- For the temporary county seat Cimarron received 705 votes, Montezuma 560, and Ingalls 88 only. A. T. Soule, a man worth from $8,000,000 to $10,000,000, and living in New York, became interested in the town of Ingalls. .Whether for his mere pleasure or his pecuniary profit it is difficult to , say, he atr
XVIII. My brothers, who have conscientiously examined the testimony, are of the opinion that the election was valid, and that Ingalls by its result has become the county seat. I am grieved to differ in such a case as this; but the facts as I understand them impress me so strongly and forcibly that all the proceedings in Gray county on October 31, 1887, were such a travesty on justice and such a burlesque on elections, that I cannot assent to the judgment rendered. I very greatly regret the result announced in the opinion, because I do not think that any election should stand which was conducted and carried on by the voters — or rather, by “non-residents” — as was the election of October 31, 1887. I greatly regret the result, because I fear its consequences upon the future elections in the state, and because I fear that A. T. Soule, and such “conscienceless scoundrels” as operated fraudulently and cor
Speaking for myself, I believe the judgment should be vacated, and a new trial granted.