The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1882-12-07
THE wooD-PETERs CASE
why Judge Morton Refused to Grant
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the Injunction Prayed for Sam Wood.
KANSAS CITY. Mo-, Nov. 3O-The
Times OF this city on Tuesday morning
announced the fact that the Injunction
prayed for by Col. s. n. Wood, to re-
strain the board of canYassers from
counting the votes cast for Judge s. r.
Peters at the late congressional election
had been denied by Judge Morton. The
ruling of the judge is in substance as
follows:
This is an application for an inIunc-
tion. The petition alleges that at the
recent election the defendant, s. K Pc
ters, received 90, S64 votes for the office
of Ongressman-at-large for the state of
Kansas, and that the relator, 8. N. Wood,
received IS, 1854 votes; that the five per-
sons who received more votes for said
office than any other candidate were
Messrs. Hanback,, Morrill,, Perkins, the
defendant, Peters, and the relator,
Wood that the defendant, Peters, was
and still is Judge of the ninth judi
cial district of the state of
Kansas for the term expiring in Jan
uary, 1882, and that by the provisions OF
the constitution of the state of Kansas
he is not eligible to q seat in congress.
And the object and prayer of the petit
tion is that the state board of caRvassers
be eDjoined from receiving, counting
and canvassing" the vote cast for Judge
Peters, and from certifying the same,
and that Judge Peters be ''eBjoined
from taking any action, step or proeeed,
ing to obtain said Office" and from
accepting or holding the same.
1t may be remarked that if the in
junction prayed for should be granted
and obeYed by the canvassers, they
would count and canvass the votes re-
turned to them, except those cast for
Judge Peters. II follows that il would
then become their duty to declare that
Col. Wood was duly elected as one of
the congressmen-at-large for the state of
Kansas.
In the view l take of the case, do
not deem it necessary to express my
opinion OF the eligibility of Judge Pc
tiers. | can reach conclusion without
considering that point.
The question before me is precisely
the same as it would have been if, two
years ago, upon the then nooted ques.
tion Of the eligibility of Judge Muse to
the position of presidential elector, ]
had been asekd to enjoin the state can
vassers from counting the vote cast for
him. II is precisely the same as if the
vote of the people were by law to be
cast directly for president, without the
Intervention of electors, and had then
been asked to enjoin the vote cast for
Garfield upon the ground that he was
ineligible for office.
The duties of members Of the canvass
ing board are entirely ministerial. There
is nothing about them of a Judicial ma
ture, except, perhaps, the slight tInge of
determining whether the returns are
regular on their face or whether they
are genuine or forged. Their duties are
prescribed by law They are not to de-
eide whether there was or was
not bribery and fraud at the polls;
whether illegal votes were cast, or
whether a can 1idate voted for was
eligible or ineligible to the office. To
use the language of the statute, they are
simply to Examine and make state
ments upon the certified abstracts in
the Office of the secretary of state" of
the votes given, and declare and certify
the same. It is not competent for
the courts, in a manGamus case, to d.
rect them to do anything which it
would not be their duty to do without
the order of the court; or, in an iniunc-
ton case, to forbid their doing what
the statue plainly directed them TO do
In this case the statue clearly directs
them to do that which the court is
asked TO forbid. The house of repre-
sentatives is the tribunal-and the only
tribunal-to decide upon the election
and eligibility of Judge Peters. Its
power is exclusive and Its decision final.
And it is entitled TO the evidence of the
number of votes he received through
fhe channels, and according to the
forms provided by the laws of the state.
With its reception of that evidence
through those channels and forms, this
court cannot interfere.
It is worthy of remark that, with all
the zeal and marked ability displayed
by the counsel for the relator, not a@sin-
gle case has been quoted in which a
court has been asked TO do what is
asked for IN this petition. And il
is believed that there cannot be
found an instance in which
under law similar to ours, a canvass
ing board has ventured 10 object or to
refuse to receive and count votes cast for
candidate. upon the ground that he
did not have the qualifications for the
Office which the faw prescribed.
AS to that portion Of the application
which seeks to eujoin Judge Peters
from claiming seat in congress, /
know of no precedent or principle upon
which il can be entertained. He claims
to have been duly elected. and that he is
eligible. By the constitution of the
United States, the house of representa-
tives is the sole tribunal to try the case.
Why should he not be allowed to pre-
sent his claims to that court? It is
claimed TO be analogous to class Of
cases in which aperson may be restrain
ed, by injunction, from prosecuting an
action in court against another, But
these cases generally-if not always
are cases where actions, vexatious from
their multiplicity, have been brought,
or where an action is pending in the ad-
should first be determined. Neither of
these elements exist in this case.
The temporary injunction asked for
must ba refused.