Shull v. Board of Commissioners

The opinion of the court was delivered by Johnston, J.: At the last general election in Gray county, J. T. Shull, C. S. Warner and A. R. Moebius were candidates and received votes for county treasurer. According to the face of the returns, Shull received 207 votes, Warner 194, and Moebius 24. The county canvassing board, however, rejected the returns from Logan township as to the office of county treasurer, and upon the remaining returns found and declared that Warner was elected. This action is brought by Shull to compel the county commissioners and county clerk to reconvene as a board of canvassers and canvass the full returns as made to them, including those from Logan township relating to the office of county treasurer, and declare that Shull was elected, it being alleged that the election returns show upon their face that plaintiff was elected to that office. The defendants answered that the returns from Logan township were not legal and genuine election returns, and that as presented to the defendants they “bore upon their face the appearance of having been tampered with and altered, in that erasures appeared to have been made upon the tally sheets, and envelopes containing the ballots cast appeared to have had the seals broken and replaced.” It was further alleged, that 16 voters of Logan township had made [106] affidavit that they voted for Warner, while the returns from that township gave him only eight votes. As a further answer, it is alleged that an action of mandamus had been begun in the name of the state against these defendants in the district court of Gray county, in which it was sought to compel the canvass of the votes and for the same relief that is asked in this action. Testimony has been taken upon the charges made, but it fails to convince us that fraud was committed by the election officers of the township, or that the returns were altered or tampered with. It is shown that the count was watched by voters who represented the different political parties, and no one detected any error or wrong in the count. The returns made to the county clerk and to the township trustee showed no trace of any erasure, and while they were out of the hands of the judge who carried them to the county clerk for a few minutes, there is nothing to show that there was any attempt or disposition to tamper with the returns. They appear to have been received by the county clerk in the condition in which they were sealed up, and the evidence introduced is not sufficient to impeach the genuineness of the. returns. It is true that 16 men made affidavit before the board of canvassers that they voted for Warner for county treasurer at the election in Logan township. One of them, however, afterward admitted that he was mistaken, and there is that in the testimony of some of the others which weakens their statements, and shows the unreliability of that class of evidence upon which to set aside the returns of an election. The duty of a canvassing board is almost wholly ministerial. They are to ascertain and declare the result of the voting as shown by the returns. In the first place, they are to determine that the returns are genuine, but when they are satisfied of that “ they may not reject any returns because of informalities in them, or because of illegal and fraudulent practices in the election.” (Lewis v. Comm’rs of Marshall Co., 16 Kas. 102.) When it appears that returns made to a canvassing board are grossly and manifestly fraudulent, as was the [107] case in The State, ex rel., v. Stevens, 23 Kas. 456, the court, in the exercise of judicial discretion, may refuse to compel a canvass of such returns. In this case, however, we think the testimony fails to impeach the returns, and that the commissioners were not justified in refusing to canvass the returns from Logan township. The institution of the mandamus proceeding in Gray county does not prevent the maintenance of this action by the plaintiff. The former was brought by the county attorney in the name of the state, and the plaintiff in this action has no control over the same. He has an interest in the canvass, and is entitled to maintain an action in his own name to require a canvass of the full returns upon the office for which he was a candidate. It is said that there has been a change in the board of county commissioners and county clerk since the refusal was made to complete the canvass. It was the duty of the successors to canvass the full returns, and a peremptory writ of mandamus will issue to them commanding such a canvass. As this proceeding was begun before the change in the board was made, the costs will'be adjudged against the officers who originally refused to make the canvass. A peremptory writ will issue requiring the county commissioners and county clerk to reconvene as a canvassing board, and canvass the full returns of the election, and to declare the result, in accordance with the prayer in the plaintiff’s application. All the Justices concurring.