State ex rel. Bradford v. Malo

The opinion of the court was delivered by Valentine, J.: This case was decided by this court on June 7, 1889, and on June 13,1889, amotion for a rehearing was made by the plaintiff, and on July 3, 1889, such motion was submitted for consideration to this court, and we now proceed to consider the same. Gray county was organized in July, 1887. Pending the proceedings for its organization, the principal contestants for the temporary county seat were the towns of Cimarron and Montezuma. The votes for temporary county seat as returned by the census-taker were as follows: For Cimarron, 705 votes; for Montezuma, 500 votes; for Ingalls, 88 votes; for Stowe, 1 vote; and for the center of Gray county, 1 vote. Upon the votes as thus returned the governor declared Cimarron to be [121] the temporary county seat. The temporary board of county commissioners divided the county into six municipal townships, as follows: Cimarron, Montezuma, Ingalls, Hess, Foote* and Logan. On October 31,1887, an election was held in the county, including the aforesaid townships, for the purpose, among others, of permanently locating the county seat; and afterward the canvassing board, two of whom were strong partisans of Cimarron, declared the result with reference to the county seat to be as follows: INGALLS. CIMARRON. Cimarron.. 45 494 Montezuma 236 30 Ingalls..... 143 17 Hess....... 195 60 Foote...... 25 117 Logan..... 69 35 Totals 713 753 The foregoing statement does not at all express the true result of the election. Of the 753 votes counted for Cimarron, about 100, and probably many more, were never cast at all; and a great many more of them were not cast for Cimarron, but were cast for Ingalls. The frauds causing this false counting were perpetrated principally, if not entirely, by the election officers in the two townships of Cimarron and Foote. Beyond all question Ingalls was in fact chosen by the electors at this election to be the county seat of Gray county. If all the votes actually cast at that election were counted, Ingalls would have a majority. If all the votes cast by the legal voters only were counted, Ingalls would still have a majority. If all the votes cast by such of the legal voters only as were not influenced by bribes, nor by any other corrupt or illegal means/ were counted, Ingalls would still have a majority. And if all the honest and legal votes cast, and no others, were counted, Ingalls would still have a majority. On November 8,1887, a full set of county officers was elected for the county, and after qualifying and entering upon the discharge of their duties, they removed their offices to Ingalls, and have since held them at that place as the county seat. Afterward, and on March 14, 1888, this action was commenced in this court. [122] The action is mandamus to compel the county officers of Gray county to remove their offices from Ingalls to Cimarron as the county seat. The title to the action, giving the names of the parties, is as follows: “The State of Kansas, ex rel. S. B. Bradford, Attorney General, Plaintiff, v. A. F. Malo, as Sheriff of Gray County, Kansas; J. L. Cailey, as Clerk of the District Court; George B. Antrim, as County Clerk; J. B. Williams, as County Treasurer; E. J. Clark, as Register of Deeds; F. P. Hammer, as Superintendent of Public Instruction; J. R. Brady, as Probate Judge; J. L. Bower, as County Surveyor; George W. Dunn, as County Attorney of Gray County, Defendants.” The attorney general has taken no part in the action, except merely to permit his name to be used. The pleading of the plaintiff, to wit, the alternative writ of mandamus, alleged the holding of the foregoing election on October 31, 1887; that it was duly and regularly held in the county and in all the election precincts, and that it was legal and valid; and that by it Cimarron became the permanent county seat of Gray county. Additional matters were also alleged sufficient to make out a prima faeie case in favor of the plaintiff and against the defendants. The plaintiff did hot however allege that any fraud or illegality or irregularity occurred at such election in the county, or in any one or more of the election precincts; but, on the contrary, alleged otherwise as aforesaid. The defendant Bower answered that the allegations of the alternative writ were true, and that he had obeyed the command of the writ. The other defendants answered, admitting substantially all the allegations of the alternative writ, except that the aforesaid election resulted in the choice of Cimarrón as the county seat, and alleged that it resulted in the choice of Ingalls as the county seat; and further alleged that great frauds, illegalities and irregularities were perpetrated by the friends of Cimarron in conducting and carrying on the election in Cimarron and in Foote townships, sufficient to invalidate the election in such townships; and also alleged that several illegal and fraudulent votes were cast for Cimarron in Logan [123] township. All these matters are set forth in great detail in the defendants’ answer. 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? On July 6, 1888, the court, with the consent and at the suggestion of the parties, appointed F. E. Carringer as a commissioner of the court to take the testimony in the case, which he was to do and report the same to the court by September 15, 1888. On September 4,1888, it was ordered by the court that the taking of the evidence, which was not yet completed, should be closed on or before September 29,1888, and the case was set down for hearing on October 5,1888. When October 5th arrived, the parties were not ready, and by stipulation of counsel the case was continued and the hearing thereof set for January, 1889. By a subsequent agreement of the parties the case was again continued, and set for hearing on April 2,1889. And by order of the court the taking of the evidence, which was not yet completed, was to be closed on or before February 25, 1889. The taking of the evidence was so closed, and the commissioner who took the evidence filed his report thereof in the court on April 1, 1889. It appears that but little effort was made by the parties to bring the case to an early hearing upon its merits and upon the evidence, but during its pendency three different efforts were made at different times to have the court order, without evidence, that the county officers, or some one or more of them, should remove his office, or their offices, from Ingalls to Cimarron, and there hold the same as at the county seat. The last of these efforts was made in February, 1889, after nearly all the evidence in the case had been taken by the commissioner. Finally April 2, 1889, arrived, and the parties on that day and the next day submitted their case to the court upon the written evidence previously taken and filed in the court. The oral argument was before the commissioners ap [124] pointed under the act offthe legislature of February 24,1887, creating a commission for the supreme court. Each side was given five hours for oral argument. The commissioners heard the oral argument, and read the evidence and the briefs, and came unanimously to the conclusion that by the election held in Gray county on October 31, 1887, Ingalls was chosen by the electors of that county to be the permanent county seat of the county. They made their report accordingly to the judges of the court, and a majority of the judges approved their conclusions, and ordered that an opinion be prepared in the case. This was on May 1, 1889. In pursuance of the foregoing order, Commissioner Simpson prepared an opinion, and afterward submitted it to the judges; and on June 7,1889, the court rendered judgment in accordance with the recommendation of the opinion in favor of the defendants, and denying a peremptory writ of mandamus; the Chief Justice dissenting, and delivering a dissenting opinion. A motion for a rehearing has now been made, and presented by the plaintiff to the court, upon the following grounds, to wit: “1. That said decision is not sustained by sufficient evidence, and is contrary to law. “2. For error of law occurring at the trial, and excepted to by plaintiff.” The second ground for a rehearing is inapplicable, for the reason that nothing was excepted to during the trial. Upon the oral argument on the hearing of this 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 at the time of the holding of the county-seat election, on October 31, 1887. Up to the time of the hearing of this motion no such claim was ever made by any party to the action, but on the contrary, it was claimed by the plaintiff that the aforesaid election was valid, and that by it Cimarron became the permanent county seat of Gray county; while the defendants claimed that the election was valid, and that by it Ingalls became the permanent county seat of the county. By this new claim, made on the rehearing, it is desired to dis [125] franchise all the innocent and honest voters of Gray county, as well as the dishonest and guilty; and evidently the former class of voters vastly outnumbers the latter class. But even if not, still why should not the honest voters rule? This new claim made now by the plaintiff for the first time is wholly outside of the issues in the case made by the pleadings of the parties, and is evidently made for the reason that it has now been discovered that upon any fair count of the votes that were actually cast at the aforesaid election of October 31, 1887, Ingalls received a clear majority. But still we shall consider the claim. But first there are some preliminary matters to be considered, with reference to frauds and irregularities claimed to have been brought about or committed by the friends of Ingalls, all of which frauds and irregularities, claimed to have been committed on the part of'Ingalls or its friends, are wholly outside of the issues in the case. The only frauds committed by any of the election officers at the election of October 31, 1887, were committed in the two townships controlled by the friends of Cimarron, to wit, in Cimarron and in Foote townships. No frauds were committed by any of the election officers in any of the four townships controlled by the friends of Ingalls. Perhaps, however, we should here make au explanation. It is true that one of the judges of the election in the township of Montezuma had some suspicions on the day of the election that some of the voters were being bribed, both to vote for Ingalls and to vote for Cimarron, but these were only suspicions; and as there were persons friendly to both of these places standing at the polls for the special purpose of challenging every person offering to vote who might not be a legal or honest voter, he did not do any of the challenging. Of course, if a person offering to vote was challenged by any person, then it was unnecessary for any one of the judges of the election to do so; and if none of the regular challengers challenged a voter, all the judges of the election had the right to presume that the voter was a legal and qualified voter. With this explanation we shall not refer to this matter again. In Cimarron township various villainies were [126] perpetrated. Indeed, the returns from that township were false and fraudulent, and largely, if not entirely, forged. They should never have been canvassed by the canvassing board, and perhaps would not have been canvassed except for the fact that two of the county commissioners constituting the canvassing board were strong partisans of Cimarron. On account of the frauds of the election officers and others in Cimarron and Foote townships, the returns from those two townships must be considered as wholly and absolutely worthless as evidence; while, as no frauds were committed by the election officers in the other four townships, and as the election in the other four townships was conducted fairly and honestly, so far as the officers were concerned, the returns from those four townships must be considered as prima facie evidence of what they purport to show, and nothing has been introduced sufficient to overturn or destroy the prima faoie character of these returns from these four townships. But some of the facts which might be inferred from these returns have .been overturned. These matters we shall now consider. Evidence has been introduced tending to show that individual voters were bribed with money to vote both for Ingalls and for Cimarron, and were influenced by the promised construction of a railroad to vote for Ingalls. 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 Bochester, 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. But let the vote of every person voting for Ingalls in Cimarron township and in every other township against which the evidence casts the slightest suspicion of having received a bribe be stricken out, and the result of the election would be precisely the same. Ingalls would still 'have a majority of the votes. Counsel for the defendants stated in the oral argument on the motion for a rehearing that the evidence does not show that [127] more than three of the bribe-takers were influenced thereby to vote for Ingalls, and that a great many of those who received bribes to vote for Ingalls in fact voted for Cimarron. But whether this is strictly true or not, whether many or few of the bribe-takers voted for Ingalls, there were not enough of them who voted for Ingalls to change the result. Let their votes all be stricken out, and Ingalls would still have a majority of the honest votes of the county. The friends of Cimarron also bribed many of the voters of the'county to vote for Cimarron. As before stated, the question as to whether any voter received a bribe or not to vote for Ingalls is a matter wholly outside of the issues in this case. We come now to the railroad question. It is in effect claimed by the plaintiff that the honest and regular returns made by the honest and faithful election officers of Montezuma township must be treated precisely like the false, fraudulent, and forged returns from Cimarron township ; that if the returns from Cimarron township should be thrown out as not worthy of consideration, so should the returns from Montezuma township be so thrown out. It is unnecessary to say that this is not the law; that election returns from honest election officers cannot be so treated; and that the election returns from Montezuma township prove prima faeie just what they purport to prove, and that every vote shown by such returns must be counted unless it is shown by evidence aliunde and paramount that such vote was illegal or fraudulent. And this remark with reference to the returns from Montezuma township applies with equal force to the returns from Hess township, and also to the returns from Ingalls and Logan townships; but not to the returns from Cimarron and Foote townships, where the election officers themselves so flagrantly and fraudulently conducted the election. But to return to the railroad question: It appears that Soule owns a large interest in Ingalls; also in the First National Bank at Dodge City; also in much other property at Dodge City; also in the Dodge City, Montezuma & Trinidad Railroad Company; and also in much other property in western Kansas. It is shown that [128] Soule stated that if the people along the line of the contemplated railroad would vote for Ingalls for the county seat, he would build or cause to be built that portion of the railroad which is located from Dodge City to Montezuma. It is not claimed that he offered to give the railroad, or any part thereof, or any stock therein, to any person or corporation, public or private, or that he would carry either freight or passengers free cf charge, or that he would carry them for less than a fair compensation, or that he would issue or cause to be issued any free passes. The voters were not to get anything personal to themselves for anything they did or might do. The promise was simply that the railroad should be built through or into their neighborhood, but owned and operated by a private corporation. It is also said that this promise of Soule’s influenced the voters of Montezuma and Hess townships to vote for Ingalls. It. may be that except for this promise Montezuma, with its surrounding country, would have voted for its old rival Cimarron, for the county seat, but it is not likely that such would have been the case. It would probably have mainly voted for Ingalls as it did. There is but little direct cr competent evidence tending to show that any particular voters were influenced by this promise. The evidence principally or largely relied on by the plaintiff with respect to this matter, and copied substantially in one of the plaintiff’s briefs, is the following, which we*quote literally from the record: John H. Kelly says: “I think it [the railroad matter] had a big influence in 28-30 and in 29-30, especially in 28-30. The railroad scheme, in my estimation, transferred in 28-30 from cne-half to three-fourths of their votes.” John A. Headley says, in answer to a question with reference to the supposed influence of the promise in Montezuma township: “ I suppose about 75 per cent.” And in answer to a question with reference to Hess township, says: “Well, I would not know what I would say; about 60, I expect, in Hess township.” G. L. Ensign says: “ If I should answer that to the best of my judgment, would be to say that that arrangement directly and indirectly gave Ingalls from 70 to 85 per cent, of the [129] votes that she got In that country.” S. S. Van Wye says, in answer to questions: “I suppose I would be safe in saying 50 or 60; 50, well, I think I would be safe in saying 50 per cent., to the best of my judgment.” The word “solid” was put into a question by counsel, and not in any answer of the witness. Will any lawyer consider this evidence as competent? Are these witnesses experts ? Have they any special knowledge or means of knowing the secret springs of human action ? Do they specially know upon what particular influences human volitions are necessarily founded ? Have they some special and peculiar means of reading the human heart, and of solving its inscrutable and perplexing riddles ? -Can they look into the innermost consciousness of other beings and tell what is passing there, and testify to the same as experts? Can they view the conflicting passions, emotions, thoughts and feelings of any individual, his loves and hates, his likes and dislikes, the things which attract and repel him, ■and discover which for the time being is in the ascendency or has the mastery, and determine which shall finally govern, or control his actions ? And may these supposed experts testify, not with regard to each individual separately, but with regard to all the voters in the lump, and with regard to all the influences, or the master influences, as they are supposed to operate upon all the individuals collectively and in the lump, and say that 50 per cent, or some other per cent, of the voters were influenced to vote in a particular way ? All this evidence is of course illegal. But if a party may win his case by proving matters wholly outside of the issues in the case, (and this matter concerning the railroad and Soule’s promise is wholly outside of the issues,) then of course he may with equal propriety win his case by the introduction of illegal and incompetent testimony. But let this evidence have its fullest weight. Say that because Soule promised to-build a railroad to Montezuma every voter in Montezuma and Hess townships who voted for Ingalls was influenced thereby to so vote, and ■could not, in the nature of things, have so voted for any other reason, and strike out all their votes, and still Ingalls would [130] have a majority of all the honest votes of Gray county. But on the rehearing, and for the first time by a party, it is said that the honest vote of Gray county must also be thrown out. Now, must the rules of pleading and of evidence be ignored, not for the purposes of justice or of punishing the guilty, but to aid and foster injustice, and to disfranchise the innocent and honest voters ? Mr. Greenleaf says of the rules of evidence : “ The first of these is, that the evidence must correspond with the allegations, and be confined to the point in issue.” (1 Greenl. Ev., § 50.) Now, is this first rule of evidence to count for nothing in the supreme court of Kansas? In the four townships controlled by the friends of Ingalls great caution was exercised in the choice of election officers, and by the officers themselves, to see that a fair and honest election should be held, and no wrong further than we have already stated is shown as to any of them, and but little wrong is shown as having been perpetrated by the friends of Ingalls in at least two of them. And are the people of these two townships, as well as all the good people of all the remainder of the county to be disfranchised ? And is all this to be done because of matters left wholly outside of the issues in the case, and where the evidence supposed to show the same is largely illegal and incompetent, and where the question of such disfranchisement was not raised by a party until on a motion for a rehearing ? As to the time for raising a question of this kind, or for raising questions generally in the supreme court, see the case of The State v. Coulter, 40 Kas. 673; 20 Pac. Rep. 525. But it makes no difference in this case that the question of the invalidity of the election was not raised by a party until on the motion for a rehearing. Even if it had been raised at the beginning and by the pleadings, still the decision would have to be the same, and in favor of the defendants; for under the facts of this ease the election was valid, and a majority of the votes, and of the honest and legal votes, of the county was in favor of Ingalls. We have not in this opinion gone extensively into the details of the aforesaid county-seat election. This was sufficiently [131] done by Commissioner Simpson; and certainly no claim can be reasonably made, considering the facts of the case, that he treated the side of the plaintiff unfairly, or the side of the defendants with any greater leniency than it deserved, or than he did the side of the plaintiff. The foregoing opinion is principally a reply to the dissenting opinion of the Chief Justice, filed on the original decision of this case; although it also answers as a reply to the briefs and arguments of counsel for plaintiff on their motion for a rehearing. But since the foregoing opinion was prepared, the Chief Justice has prepared another dissenting opinion, in which he quotes detached portions of the evidence, and makes statements concerning the evidence. We have quoted but very little of the evidence in our opinion, for the reason, principally, that the evidence is very voluminous, being sufficient, if copied in full, to fill three or four or more volumes of the Kansas Reports. Even that portion of the evidence which tends to sustain our views, with the necessary comments thereon, would probably, if placed in this opinion, swell the same to several volumes. Also much of the evidence is conflicting and contradictory, and some of it is false; and to quote it in detached, isolated and selected fragments, or to quote only such portions of it as tend to prove only one side of the case, would be very unfair and misleading. We have attempted to give, not detached fragments of the evidence, nor the evidence of only one side, but we have attempted to give what we think the whole of the evidence proves; and this we have done after carefully weighing it all — the contradictory and conflicting as well as all the other evidence; and we have attempted to harmonize the evidence as best we could. ■ The small amount of the evidence which we have quoted literally was quoted because of the following statement found in the previous dissenting opinion of the Chief Justice, to wit: “If, however, it be said that the votes of Montezuma and Hess townships should be counted for Ingalls, and thereby permit a fair share of the votes of Gray county to decide the county seat, then I answer, the testimony shows that a very [132] large per cent, of the votes received by Ingalls in these townships were transferred to that town by the promise of the chief owner of Ingalls to build a railroad free of cost east and west through and across these townships. James H. Kelly testified that this railroad scheme transferred from one-half to three-fourths of the votes of those townships. John A. Headley testified that seventy-five per cent, of the voters of Montezuma township were transferred to Ingalls in consideration of those propositions, aud about sixty per cent, in Hess township. G. L. Ensign testified that the arrangement for the building of the railroad gave Ingalls directly and indirectly seventy to eighty-five per cent, of all the votes it got in the country. S. S. Van Wye testified that he preferred Cimarron, but the prospect of getting a railroad influenced his vote for Ingalls. He further testified that he thought the prospect of getting a railroad without bonds was the influence which made the vote in Montezuma township almost solid for Ingalls.” Much more of the evidence relied on by the plaintiff is incompetent; and in the light of the other evidence much of it is wholly false. It may be that many persons in Montezuma and Hess townships were influenced by the railroad proposition to vote for Ingalls, but it is not so shown by any competent evidence. There was not competent evidence sufficient to prove that more than two or three persons were so influenced, and perhaps not that many. There-are many reasons other than the railroad proposition why the people of Montezuma may have voted for Ingalls: as, the former rivalries and feuds existing between Montezuma and Cimarron concerning county lines, stage lines, county seat, etc.; and also the relative location of the different towns, roads, etc., may have had much to do with the matter. More than a month before the election, (which was on October 31, 1887,) and about September 22, 1887, the town of Montezuma was withdrawn as a candidate for the county seat. The bond testified to by G. L. Ensign as having been given by Soule to build a railroad, was, as we understand, merely a bond to build a railroad; and there was nothing in it concerning Ingalls, or the county seat, or the election; nor were these things even mentioned therein. Now, must this promise of [133] Soule to build a railroad to Montezuma necessarily disfranchise all the legal and honest voters of Gray county? Must it necessarily disfranchise all the legal and honest voters of In-galls and Logan townships, where hardly the slightest fraud could be imputed to any of the friends of Ingalls? Must it necessarily disfranchise all the legal and honest voters of even Montezuma or Hess township? Is it the law that when some man promises to build a railroad iu a county, and asks the voters to vote for a certaiu place as the county seat, that the voters of that county are then and forever afterward, while such promise remains, barred and disqualified from removing their county seat to such place? But as we have before stated, this question is unimportant, so far as this case is concerned. Nearly one thousand pages of the evidence were taken by the commissioner, Mr. E. E. Carringer, prior to September, 1888, and hence the parties must have known at that time that Ingalls was, upon any fair count, elected to be the county seat of Gray county; and hence the several efforts that were made from that time on to have the court order that the county officers should remove their offices from Ingalls to Cimarron before the court had any opportunity to see the evidence. There are many statements in the dissenting opinion with reference to what took place and as to what was shown by the evidence, which we do not at all concur in or agree to. On the contrary, we think they are wrong. Everything said concerning “killers,” or guns, or arms, so far as the same affect the election as against Ingalls, is wholly irrelevant to this controversy, for there is not the slightest room in this case for even a pretense that any person that desired to vote for Cimarron was prevented from so doing, or was in any manner or to any extent intimidated, “bulldozed,” or molested. Besides, the returns from Cimarron township show that at least one hundred more votes were cast in that township than they had legal voters, and that all the votes there cast except forty-five, were cast for Cimarron. The only difficulties and embarrassments thrown in the way of voters exercising their rights at that election were such as were inaugurated and interposed by [134] the friends of Cimarron in the townships of Foote and Cimarron,, to embarrass the friends of Ingalls. Commissioner Simpson in -his opinion stated that the returns from Cimarron township could not be considered at all: first, because of the great frauds of the friends of Cimarron and of the election officers; second, because of the frauds of the friends of Ingalls. This second reason he mentioned as an “additional reason.” In other words, as both the friends of Cimarron and the friends of Ingalls and the election officers all committed great wrongs, the election returns cannot be considered at all, either in favor of Cimarron or in favor ofIngalls. Is there anything so very bad in this ? Any other decision than the one we have made in this case would, we think, not be in the interest of justice or of fair elections, but would be directly the opposite. [135] Ingalls, surely chosen to be the county seat of Gray county. [134] If we should confine ourselves to only the facts proved within the issues of the case as made by the pleadings, then it must be conceded that beyond all doubt Ingalls was elected to be the county seat of Gray county; and certainly the defendants have never expressly waived their right to have the consideration of the case confined strictly within the issues made by the pleadings. In their first and principal brief and abstract, filed at the time of the submission of the case on April 2, 1889, and which seems to have been the first brief or abstract filed in the case by any party, they discuss nothing but the issues in the case; and in their other brief, filed later, they do but little more than to discuss the issues; and on the hearing of the motion for a rehearing they insisted upon their right to have the case considered only upon the issues presented by the pleadings, although they claimed that it could not make any difference in the final result even if everything in the case should be considered; and we think so too, and have considered everything. Now, passing over the question concerning the issues as a matter of no consequence, then upon the merits of the case, taking all the evidence' — the three or four thousand pages, not mere fragments — and considering it all, conflicting, contradictory, truthful, and false — and har [135] monizing all of it as best we could, it must certainly be held that Ingalls was surely elected to be the county seat. It received a maiority of all the J ° ^ 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 this is really where we have' placed the decision. The motion for a rehearing in this case will be overruled. Johnston, J., concurring.