Brown v. Board of Commissioners

Opinion by Clogston, C.: This is an action to compel the defendants by mandamus to convene as a board of canvassers and to canvass the votes cast and returned from the first com [439] missioner district in Rush county for the office of commissioner for said district. The only question raised is, did the board of county commissioners and the county clerk, when convened as a canvassing board, have the right to determine and pass upon the question whether illegal votes had been cast and returned in said district for the office of county commissioner? It is admitted by the defendants that the returns from the townships in said district were regular in form and genuine, and that upon the face of the returns it is shown that the plaintiff received 308 votes for county commissioner in said district, and that said 308 votes were a majority of all the votes cast in said district for commissioner; but they claim that they had the right, and that it was their duty, to throw out all votes illegally cast at said election, and that, in pursuance of such right, they threw out 17 votes returned from Center township, which when so thrown out left a majority for Jeffries, the candidate opposing the plaintiff, and that if said votes had not been thrown out plaintiff would have been entitled to a certificate. It was held in The State, ex rel., v. Stevens, 23 Kas. 456, that this court would not compel the canvassing board of a county to canvass the returns where it was shown that the returns were so grossly and manifestly untrue as to be of no value in ascertaining the will of the people. But that is not claimed in this case. Here it is shown that the returns were genuine, but it is claimed that they included some illegal votes, and the board found the number to be 17, and refused to count them in the returns of the township. This we think the board had no authority to do. Where it is once determined that the returns are genuine, the board has no further right to investigate and declare which of the votes are illegal and fraudulent. The board must count the votes as it finds them. Its duties are simply ministerial: to declare the result from the returns so made. This question has been passed upon so often by this court that it is hardly necessary to say more. In Lewis v. Comm’rs of Marshall Co., 16 Kas. 102, it was said: “It is a common error for a canvassing board to overesti [440] mate its powers. Whenever it is suggested that illegal votes have been received, or that there were other fraudulent conduct and practices at the election, it is apt to imagine that it is its duty to inquire into these alleged frauds, and decide upon the legality of the votes. But this is a mistake. Its duty is almost wholly ministerial. It is to take the returns as made to them from the different voting precincts, add them up, and declare the result. Questions of illegal voting and fraudulent practices are to be passed upon by another tribunal.” (Also see The State, ex rel., v. Stevens, 23 Kas. 456; The State, ex rel., v. Comm’rs of Hodgeman Co., 23 id. 268; Hagerty v. Arnold, 13 id. 367.) , From these authorities it will be seen that a board of canvassers has no such authority as is claimed by the defendants. To hold' otherwise would be to transform such canvassing board into a tribunal, not only to canvass such returns, but to determine all contests arising therefrom. It is evident that the defendants have exceeded their authority, and have offered no excuse for so doing. It is therefore recommended that the peremptory writ of mandamus be awarded as prayed for; that the defendants be commanded to meet and canvass the vote for said commissioner district upon the face of said returns, and to determine that H. L. Brown has been duly elected county commissioner of said first district, and that said board issue a certificate of election to him therefor. By the Court: It is so ordered. All the Justices concurring.