State ex rel. Bradford v. Stock

Opinion by Simpson, C.: A county-seat election was held in the county of Rush, on the 12th day of February, 1878. The declared result was 234 votes for Walnut City, 227 votes for La Crosse, and 1 vote for Alexander. After the result •of the canvass had been declared, one Daniel Hammond, an •elector of that county, commenced a proceeding in mandamus, under the provisions of chapter 79, Laws of 1871, and the amendment thereto of chapter 126, Laws of 1872, to contest such election, and to compel F. E. Garner, as county clerk of Rush county, to remove his office, books, papers and documents pertaining thereto, to the town of La Crosse, and there to keep the same. In this action, a peremptory writ was allowed on the 31st of May, 1878. The respondent being in ■default, exceptions were noted, and time allowed to make a [168] case for this court, but the action was never brought here. On the 7th day of June following, the county attorney of Rush county procured from one of the justices of this court an alternative writ of mandamus, to require Garner to keep his-office at Walnut City, he having gone to La Crosse. He obeyed the alternative wi’it, and made return of his obedience-to the court. In rendering judgment, this court ordered, as a part thereof, “that it should not conclude or be a bar to the-action of any person concerning the subject-matter of the dispute therein.” On the 27th day of November, 1879, J. V. Moon, a citizen and elector of Rush county, applied to the-district court of that county for a writ of mandamus to compel Garner to move his office to, and keep it at, La Crosse, in obedience to the Hammond judgment. An alternative writ was issued, reciting the Hammond judgment and the authority of the relator to sue. In this action, Garner answered both by a general denial and by pleading the proceedings had in this court at the suit of the county attorney. The case was decided by the district court in favor of Moon, by holding the judgment in the Hammond ease to be final and conclusive;- and this judgment was affirmed in this court. (28 Kas. 790.) This suit was commenced on the 19th day of July, 1886. It is an original proceeding in mandamus, and all the pleadings-appear in the statement of the case. It was instituted by the attorney general in the name of the state of Kansas, to compel obedience to the law of the state commanding county officers to keep their offices at the county seat. 1. Testate, not For this reason,. and because the state is exercising one of its sovereign powers, the court is of the opinion that the action is not barred by the statutes of limitation. There can be no question, if the sovereignty of the state is-involved, that the statutes of limitation cannot be pleaded against the state. The writer of this opinion has a very decided opinion that this action is barred by the limitation contained in the third subdivision of §18 of the code; but the court determines otherwise, and the law of this ease is, that the cause of action alleged in the alternative writ is not barred [169] by the statutes of limitation, for the reason that in this particular case the state, in whose name this action was instituted by its law officer, is exercising its sovereign power of compelling obedience to its statutory mandates, and cannot be estopped by a plea that the time within which obedience could be exacted has expired; that it is never too late for the state to enforce its laws. (The State v. School District, 34 Kas. 237.) The case of Sabin v. Sherman, 28 Kas. 289, is not applicable, as that was an action between private persons, and the state was not a necessary party. In that case the maxim Nullum tempus occurrit regi was not relevant, but in this case it may be invoked. In their return to the alternative writ the defendants aver— “That all matters and things asserted and claimed as against them by the relator, and the whole subject-matter of this controversy, have been and were heretofore finally determined, decided, adjudged and established as against said relator, the state of Kansas, and all other persons whomsoever, by the consideration, order, judgment and decree of the district court of Rush county, in a certain action duly commenced in said court, wherein the state of Kansas, on the relation of one Daniel Hammond, a citizen, elector, and tax-payer in the said town of La Crosse, was plaintiff, against one F. E. Garner as county clerk of Rush county, to remove his office from the town of Walnut City, where he was then unlawfully keeping the same, and to keep the same at the town of La Crosse, which last-named place the said Hammond alleged to be the county seat of said county; and in which action the said Hammond sought to and did contest the fraudulent election held on the 12th day of February, 1878, and the result thereof as declared by the board of county commissioners in their canvass of the returns of said election, upon which election and pretended result the relator relies in this action; and that afterward, in a certain action in which the state of Kansas on the relation of J. V. Moon was plaintiff and the said F. E. Garner as county clerk of Rush county was defendant, it was established by the judgment and decree of the district court of Rush county, and afterward upon an appeal by the supreme court of the state, that the finding, judgment and decree in the case of The State, ex rel. Hammond, v. Garner, County Cleric, was and is final and conclusive as to the said Garner as county clerk of said county.” [170] 2. Private judgment, The State not bound by. This plea of res adjudicaba is fairly in the case, and must be determined. A majority of the court hold that the judgment and proceedings in the Hammond case do not conclude the relator in this case, and that the judgmen^ as pleaded and set forth, is no bar to this action; that while there may be some identity of cause of action, the state can interfere in matters of this kind, in the interest of peace and good order and to command obedience to its laws, and that for this purpose it cannot be concluded by suits brought by private persons to protect or enforce private rights. In the case of Garner v. The State, upon the relation of Moon, 28 Kas. 790, it was said : “ While the statute permits any elector who considers himself aggrieved by the result of any election held for removing, establishing or relocating the county seat of a county, to contest by an action in the district court such election, yet if different actions are brought, and different judgments are rendered, it is possible that the attorney general or county attorney, in the interest of the public, might, in a proper action instituted for that purpose, have all these different judgments reviewed and superseded by a general adjudication as to which town, city or place is the legal county seat of a county, and thus bring all of the county officers, with their books, papers and records, to such town, city or place, as the county seat.” (See also The State v. Comm’rs of Hamilton Co., 35 Kas. 640.) We must therefore proceed to consider the case upon its merits. To do this we must examine the record of the evidence, and determine the questions arising thereon; they are numerous, and the testimony respecting them is very voluminous. It cannot be reasonably expected that we shall recite it in detail; all we have time or disposition to do is to state its most salient features, and announce our conclusions upon them. I. The first defense set up in the return to the writ is, tha the petition presented to the board of county commissioners of Rush county, praying for the election of February 12,1878> was fraudulent, void, and insufficient, because there were upon said petition the names of persons who did not reside in the [171] said county of Eush; of those who were not qualified electors at said election; of fictitious persons, purporting to be electors of said county; of those who did not sign, or authorize anyone to sign for them; and finally, that there was not the legal and requisite number who signed the petition. There are some inherent difficulties to be overcome in the present consideration of this question. Eight years have elapsed since the signatures to the petition were obtained, and in a new, rapidly-changing and shifting population, the ascertainment of the exact facts must be accompanied with great difficulties. It is no doubt true that many of the original signers are either dead or removed from the county, and that the date of their deaths, or removal, can only be approximated. Then it must be recollected that the then board of county commissioners passed upon the sufficiency of the petition, and its determination has remained unchallenged for all this time. From the positions the county commissioners then occupied, it is fair to presume that they had a somewhat intimate knowledge of the people they represented, and of their opinions and desires upon a most important and exciting public question, and possessed better means of determining the sufficiency of the petition than can possibly be employed at this distance in time from its presentation. These things tend in a more or less degree to strengthen and emphasize the presumption that they determined correctly. Yet it is announced that there is no limitation practically to an inquiry of this character, and that the defendants in this action have the legal right to avail themselves of all fraudulent acts respecting this petition which they charge, and can establish by evidence. The prima fade case is against the defendants, and it is strengthened by lapse of time and long acquiescence in the declared sufficiency of the petition. They take upon themselves the burden of demonstrating by evidence the insufficiency of the petition: have they done so ? A certified copy of the record of the board of county commissioners of Eush county shows a presentation of a petition for a county-seat election on the 7th day of January, 1878, and a postponement of action thereon until the [172] next day. The entry of January 8 shows the presentation of another petition on that day, which the board declined to consider, and shows action and an order upon the one presented on the 7th. The entry on the journal of the board of county commissioners on the 7th day of January shows that the petition presented on that day, and on which they subsequently ordered the election, contained two hundred and fifty-three names. The present county clerk attaches to his evidence certified copies of the petitions: one was certified to by him on the 11th of March, 1887, and contains 241 names; the other certified to on the 24th of March, 1887, containing 243 names; the last one marked filed January 7th and 8th. He testified that these petitions were found by him when he took charge of the office, on sheets of paper pinned together with ordinary pins. Two additional names were added to the petition certified to on the 24th of January, which do not appear on the one certified to on the 11 th. It is true that the present clerk testified that these petitions are now in the same condition in which he found them when he entered upon the discharge of the duties of county clerk, about three years before his evidence was taken. There is some evidence in various places in the record about these petitions, tending to show that they are, and that they are not, as they originally appeared, but it is not of a very satisfactory character. If the petitions were thoroughly identified as being the original ones presented to the board and upon which their action was based, of course they would be primary proof of the number of petitioners, and other facts necessary to establish their sufficiency. We cannot now go into the details of all this evidence, as our decision will be controlled by other considerations, more reliable in their nature and more satisfactory in their results. With this view we do not care to review the evidence with respect to the two lists which are marked and filed respectively on the 7th and 8th of January, and which are now exhibits in the record. We prefer to rest our judgment on this question in the case, on the recital in the journal of the number of the petitioners. It was made at the time before this excitement [173] and contention arose, and before the election, and has remained there all these years unchallenged. It is a recital which the board had power to make, and under all the circumstances it is the best and most satisfactory evidence as to the number of petitioners. There can this be said in addition to support this view; the journal of the board on the 7th day of'January, 1878, shows that there were present Ered R. Smith, L. T. Delaplain, and Levi Cline, county commissioners, G. P. Cline, county attorney, and the county clerk; of these Levi Cline is dead, and Fred R. Smith, L. T. Delaplain and G. P. Cline are among the witnesses sworn and examined in this case. Fred R. Smith was chairman of the board at the time the petition was presented, and stated that it was canvassed and compared to satisfy the board that the legal number of petitioners had signed. The assessment rolls of the county for the year 1877, were produced, and the names on the petition were compared with those on the assessment rolls. There were more than three-fifths of the number on the assessment rolls. He could not state the number, but said that the clerk made an entry on the journal of the number of petitioners. He did not want to be understood to say that on the petition presented there were three-fifths of the same names which were on the assessment rolls of 1877, but that the number of legal electors on the petition was more than three-fifths of the number of names on the assessment rolls. The board considered the petition legal and sufficient, and ordered an election as prayed for. Smith was a strong partisan at that time of Rush Center or Walnut City, but for several years past he has resided in Wilson county. L. T. Delaplain was a member of the board, and in favor of La Crosse, and objected to the legality of the petition when it was presented. He could not remember that the board canvassed it, but said, “We knew it was our duty to do so, and we generally did what we knew to be our duty.” He was produced by the defendants as a witness, but they asked him no questions as to the number of names on the petition, or as to the entry on the journal. The record of the board shows that G. P. Cline, the county attorney, was [174] present; and he was examined several times in this action as a witness for the defendants, but he was not asked to state anything with reference to the presentation of this petition, or the number of names upon it, or what was done by the board with reference to it. To say the least, these omissions from the evidence of both Delaplain and Cline, as to the number of petitioners, are very suggestive of the absolute correctness of the journal. The positive testimony of Smith, and the silence of Delaplain and Cline upon a question which they ought to have been as familiar with as Smith, greatly strengthen-the view that we have taken. Counsel for the defendants claim that such a petition, to be valid, must contain three-fifths of the identical names that are entered on the assessment rolls of the previous year; and it is said that this statute has been so construed by this court, in the case of The State, ex rel., v. Comm’rs of Phillips Co., 26 Kas. 420. This we cannot agree to, either as a statement of the law, or as a matter of judicial construction. We do not think the statute means this, and we are very certain that this court did not so construe it in the case cited. In that case a petition was presented to the board of county- commissioners, to order an election to relocate the county seat of Phillips county; that petition contained the names of three-fifths of the number of electors in the county as shown by the last assessment rolls, but it did not contain three-fifths of the number of legal electors in the county as shown by the papers from which said assessment rolls are, or should be, made, to wit, the personal-property statements made out for the assessors by the various persons, companies, corporations, and designated listing agents. The board of county commissioners refused to order the election prayed for, because it claimed that in determining the question as to whether or not the petition contained the requisite number of signers, it had the right to add to the last year’s assessment roll the names found on property statements which were not on the assessment roll, and that by adding those names thus found on property statements, which the assessors had failed to put on the assessment rolls, the pe [175] tition was not sufficient, as it did not contain three-fifths of the number of electors as were found on both of these rolls added together. Mandamus was brought against the board to compel it to order the election, on the theory that it had no right to look beyond the last year’s assessment rolls in determining the number of electors in the county. This court decided, virtually, that the board had the right claimed, and refused the peremptory writ; and this was all that was decided. There is nothing in the language of the court announcing the decision which authorizes a statement that such a construction was given the statute as is contended for by counsel. The section is not susceptible of that meaning under any known rule of construction. Such a construction involves the assumption that the legislature intended to add to the constitutional qualification of voters in elections of this character, by requiring that their names should appear on the previous assessment rolls, or property statement; when all the lawmaking power did do, or attempt to do, was to establish a rule to aid in the determination of the number of legal electors of a county, in such a contest. “ The number of legal electors shall be ascertained from the last assessment rolls;” not their qualifications, but the number of legal petitioners shall be three-fifths of the number of legal electors as shown by the assessment rolls; the petition is sufficient to authorize the order of the board. It is suggested in the brief of counsel for the defendants, that the act of 1883, § 2, chapter 91, (Comp. Laws of 1885, eh. 26, § 4,) is a declaratory act giving force and effect to the construction contended for. 4. statute not declaratory. This is strange reasoning. H fbe original section was as they claim, and this cour(; had so construed it, what necessity would there be for the enactment of the amended section? The conclusion is irresistible that the legislature, probably in view of the fact that every county-seat election is prolific of fraud and illegal voting, endeavored to reduce such fraudulent practices to the minimum by the adoption of the new section. [176] 3. x , sufficiency of petition. [175] It must therefore be held in this case that it is no objection to the sufficiency of the petition if there appeared thereon the [176] names of legal electors of the county which could aot be found on the assessment rolls or the propgi'ty statements; if they were in truth and in fact legal voters, they had a right to sign the petition, have their names considered and counted, and to participate in the election ordered in consequence of the presentation of the petition. We are not aided by counsel on either side by reference to pages in the record, where evidence is offered tending to show illegal signatures to the petition. We have said that the evidence satisfies us that the petition presented on the 7th of January, and acted upon by the board, contained 253 names; it is satisfactorily established that there were six names duplicated upon the petition; that it contained the name of one minor, and of one person who had not been in the county long enough. Our attention has not been called to any other illegal name on this petition, nor have we been able to find such evidence anywhere in the eleven hundred pages of the record. We therefore conclude, on this branch of the case, that the petition contained 253 names; that eight of those were illegal; that the assessment rolls and property statements for the year 1877 showed 282 names; that the petition contained the signatures of more than three-fifths of that number, and was sufficient in all respects to authorize the board to order the election of February 12, 1878. II. The declared result of that election gave Walnut City a plurality of seven over La Crosse, and a majority of six over all competitors. It is alleged that there was a majority of the legal votes in favor of La Crosse; that certain illegal votes were cast, received and counted for Walnut City; and that certain legal electors who offered to vote for La Crosse were denied the right to vote; that their votes were not received or counted, and that, had they been permitted to exercise their right to vote, the majority would have been for La Crosse. Under the first allegation, it is claimed that forty-one persons cast illegal votes for Walnut City. As to six of those, there does not seem to have been any evidence offered tending to show that they were illegal voters; and as to one [177] other, there is an admission of record, that B. Friedman was a legal and qualified elector of Illinois township, and that he voted at said election; and as to one Joseph-, whose last name is not given, it seems to be fairly established by the evidence of a witness with whom Joseph Mosseater lived and worked, that he came to Rush county in the spring of 1877, and worked for the witness over one year, and resided in Rush county at the time of the election, and for some time thereafter; and it is reasonably certain that, if this is the Joseph referred to, he was a qualified voter. Counsel for the defendants, however, seem to have limited the inquiry of illegal votes cast, to the votes of eleven persons, who will hereafter be named. As these are the only ones that are insisted to have been shown to be illegal, we may rest on the supposition that, if there had been sufficient evidence to fairly support the impeachment of other votes, counsel would not have overlooked it. The first- one of the eleven is the vote of D. A. McChesney, and as he was prosecuted for illegal voting at that election, and convicted, it must be held that his was an illegal vote. Reading the testimony of John Kershner, who left Missouri about the middle of August, 1877, and was twenty-six days on the road, before he arrived and located at Walnut City, there can be no doubt but that he was not a qualified voter on the 12th of February, 1878. The evidence respecting the qualifications of Francis McFadden sr., Francis McFadden jr., and Thomas O’Brien, is very conflicting. It appears from the record that the defendants had a subpena issued for them, (they being still residents of the county,) and delivered to the sheriff, but it was never served. They ought to have been put on the witness stand by one side or the other, or some reasonable explanation given of their “conspicuous absence.” We can indulge in a presumption against both sides because they were not called. James McCall swore that he took McFadden sr. to Larned on October 9, 1877, at which place he took the train for Pennsylvania, and did not return until about New Year’s Day, 1878. James Baker said he sold his claim to McFadden sr. about the 25th of February, 1878; he became acquainted with [178] McFadden sr. in the previous year, sometime between July and October. This witness contradicts to some extent McCall^ and disposes of his testimony. Mrs. Baker saw McFadden sr. in 1877, and it might have been as early as May. G. P. Cline said that he became acquainted with McFadden sr., his son Francis McFadden jr., and his son-in-law Thomas O’Brien, after the election in November, 1877; and they told him that they had just come from Pennsylvania. Henry Fierce saw McFadden sr. at Fisher’s in Brookdale township, in the spring or fore part of the summer of 1877. Fierce and another party were building a house for Fisher, and McFadden stayed there all night, and Fierce has been acquainted with him ever since that time. He is, or was, a widower, and had no minor children. George Butler, who did not testify very positively, said that he saw McFadden sr. in Rush county sometime in the year 1877. A. H. Morris resided in Rush county since 1873; first saw McFadden sr. in the county sometime in the early summer of 1877; it must have been in the month of July. This is about all the material testimony in reference to McFadden sr., and about all that bears on the qualification of young McFadden and O’Brien. It is not sufficient to establish the fact satisfactorily that they were not qualified voters. They voted; every presumption is in favor of their qualification ;. the evidence is about equal, and the result is that the charge that their votes were illegal is not sustained. The charge with reference to W. A. Ficlc and Charles Fick is involved in about the same state of uncertainty by the evidence, the evidence being a little stronger against Charles than W. A., but it is very unsatisfactory, and not of that character which warrants us in pronouncing their votes illegal. We are inclined to think that the vote of B. F. Brown was an illegal one, and there is much doubt about the votes of E. M. Cole, William Lockwood, and B. F. Willey; but conceding them to be illegal, it does not change the result, as we shall hereafter determine. The very best that can be said about the illegality of these votes is, that those of McChesuey, Kershner, Stumbaugh, B. F. Brown, E. M. Cole, William Lockwood, and [179] B. F. Willey, being seven in all, is fairly established; but this result can only be obtained by indulging in the utmost liberality in considering the testimony of the defendants as to the illegality of these votes. On this evidence, there is not any reasonable doubt about the fact that the Russians, John Basgal, Joseph Basgal, Abraham Hartman, Andrew Dech, John Purbuler, Molhur Borgner, Casper Holtzmeister, George Seitz, Christopher Stegman, Martin Basgal, and Michael Madar, were not legal electors of Rush county at that election. They all lived in Ellis county, and a part of them did not take out their first naturalization papers until after the election of February 12, 1878. The evidence concerning these men is the most convincing of any we have found in the record, and we are able to dispose of them without any lingering doubt as to the fact that they were not legal electors of Rush county. There is an admission in the record that one of them, George Seitz, was not a resident of Rush county; and it is also in proof that he did not file his declaration of intention to become a citizen until June, 1881; that of John Basgal was not filed until April 15, 1878; and that of Madar on the 9th day of January, 1880. Jacob Munch, Joseph Munch, Frank Dreher, Conrad Dreher, Jacob Zimmerman, Peter Werth and Fred Wert-h, their nnmber being seven, are produced, and testify that at the time of that election they lived in Hampton township, but voted at Liebenthal precinct, in La Crosse township. The defendants contend, that in the state of the pleadings such evidence is inadmissible, and ought not to be considered by the court. It may be said that this is a very narrow and technical construction of article 33 of the code, regulating proceedings in mandamus. Only two pleadings are allowed — the alternative writ, and the return. “The alternative writ must state concisely the facts, showing the obligation of the defendant to perform the act, and his omission to perform it.” (Code, §690.) “ If answer be made containing new matter, the same shall not in any respect conclude the plaintiff) who may on the trial [180] or other proceeding avail himself of any valid objection to its sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.” (§695;) “No other pleading or written allegation is allowed, than ■the writ and 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.” ■(§696.) 5. Question; admissible evidence Now a concise statement of the facts showing the obligations of these defendants to remove and keep their offices at "Walnut City, would be an allegation that at an election duly ¡held in Rush county, to relocate the county seat thereof, a majority of the legal votes cast at such election was in favor of the relocation at Walnut City. The return to the writ avers that a majority of the legal electors cast their ballots for the town of La Crosse, at that election. The issue framed is, “Which place is the county seat?” (Stoddart v. Vanlaningham, 14 Kas. 36.) Under that issue, illegal votes for Walnut City and illegal votes for La Crosse are unquestionably admissible. Before determining the fact as to whether or not a certain number voted at the wrong precinct, we must notice a claim made by counsel for the defendants, that this fact ought to make no difference, and that such votes ought not to be excluded. Counsel ask, “ When the single question was a choice for county seat, what possible difference in the result could it make where in the county a man cast his ballot?” 6. Elector must vote, where. It makes the difference of legality; the law requires a man to vote in the township or ward in which he resides; if he attempts to vote out of his township or ward, his ballot should be rejected for that reason; if he does so vote, it is an illegal one. This q0estiOn has been, repeatedly before the courts, and it has been univei’sally held, that a vote cast by an elector outside of the township or ward of his residence is an illegal one. (See McDaniel’s Case, 3 Pa. 310; Brightly Election Cases, 233; McCrary on Elections, 2d ed., 46.) Besides all this, we have a constitutional provision fixing the qualifications of voters, and one of these is, residence in the township or ward [181] at least thirty days next preceding the election at which he offers to vote. (Const., art. 5, §1.) Some time before the evidence upon this branch of the case was taken, the plaintiff served a notice upon the defendants that the plaintiff would offer and rely upon testimony tending to show the illegality of votes cast for La Crosse for county seat, and counted for La Crosse at Liebenthal precinct, by certain witnesses and persons, to wit, giving the names of certain persons and the number opposite their names on the poll-book of that precinct. This notice gave them a reasonable length of time in which to rebut such testimony; and while it may be that the law did not cast upon the plaintiff the service of such a notice, it is at least suggestive of fair conduct upon the part of those who gave the same. As we gather the facts from this mass of evidence, it is true that seven persons who lived in Hampton township, and should have voted there, did cast their ballots in Liebenthal precinct; and it appears circumstantially that they voted for La Crosse, as there were no votes returned from that precinct for Walnut City or any other place than La Crosse. It must be held that the seven votes cast in Liebenthal precinct for La Crosse by residents of Hampton township, were illegal. It is also established that two residents of La Crosse township voted at Liebenthal for La Crosse, when in fact they being persons of foreign birth, had not declared their intention to become citizens, and did not do so until after the election. Certified copies of their declarations are in evidence as exhibits — one dated on the 25th of February and the other on the 25th of March, 1878. It seems very probable that the votes of Karl Herklock, (Herklotz,) of Conrad Bieker and Nicholas Bieker at Liebenthal, were illegal. We are compelled to conclude that a majority of the legal electors of Eush county, at the election held therein on the 12th day of February, 1878, for the relocation of the county seat, voted for the town of Walnut City; and that the result declared by the board of canvassers, that the county seat was located at Walnut City, must be sustained. On the question of acquiescence, it may be said that what [182] ever seeming intention was expressed by the people of the county to abide by the judgment in the Moon case, was founded on the erroneous impression which prevailed throughout the county to some extent, that the judgment in the case was a final adjudication of the question and concluded all parties. The acquiescence founded on such a basis is destroyed as a legal factor in the case by the deliberate judgment of this court, that such a judgment is not a conclusive adjudication of the question. It is recommended that the peremptory writ issue as prayed for. By the Court: It is so ordered. Horton, C. J., and Valentine, J., concurring.