Barton County democrat. [volume] (Great Bend, Kan.) 1885-1915, 1893-01-12
CONTESTS DECIDED.

. Board of Canvassers.
TOPEKA, Kan, Jan. 6.-The supreme
court yesterday afternoon decided that
it had no power to reconvene the state
board Of canvassars after the board had
fulfilled its duty as required by the
the statutes and adjourned or dis
solved.
The decision was made in the case OF
Joseph Rosenthal against the state
board of canvassers on a motion made
by the attorneys for plaintiff to quash
the answer to the alternative writ Of
mandamus- The question at issue was as
to whether the board of canvassers had
the right to reconvene or be reconvened
by order of the court to canvass amended
returns. There was no dispute as to
the facts Rosenthal received major
ity of the votes cast for representative
in Haskell. but by mistake or other
wise w H. Hussey, the county clerk,
gave Rosentha1s vote to his opponent,
w. III. Stubbs, in his certified returns.
The state board of canvassers having
only these mistaken returns before it
issued a certificat of election to Mr..
Stubs, no protest or objection being
made at the time. Nineteen days after
the beard adjourned or dissolved, as
Chief Justice Horton puts it, the secre-
tary of state received certified returns
which showed that RoSenthal, and not
STUDIOS, had been elected.
Judge w. C. Webb and Judge Frank
Doster, attorneys for the plaintiff, in
their argument on the mott on to quash
argued that the state canvassing board
| is a continuing body; that it acted on
| false returns, and that it could there
fore be made to reconvene and review
! its work. In his argument Judge Webb
admitted that the board could not re-
convene of its own volition, but that
the court could order it to reconvene.
The argument of the attorneys for
| Rosenthal was noticeably weak, be-
| cause OF their inability to produce de-
/ cisions bearing on their claims
| Acknowledgement Ives argued that a
| board of caavassers could not be re-
convened after it had performed its
duty and adjourned without date. Au-
| thority was cited TO show that eIe
courts could compel canvassing boards
TO do only what the law specifically re-
quires of them, and what they can vol
UNFAIRLY, or to perform some duty that
| they had omitted.
! AT the close of the arguments the
court adjourned until = o'clock, the
| hour set for hearing the Coffey county
case. On reconvening and before TAX
ing up The Coffey county case Chief
Justice Horton delivered the opinion of
| the court orally in the ROSentGal case.
He went into the merits OF it aad fire.
quently referred to recognized legal au-
thOritieS and to former decisions of the
| court. He first defined the functions of
a writ OF mandamus. showing that IL
was created 20 compel the performance
OF some duty that had been neglected.
He referred to the fact that the counsel
for the defense admitted in their argu-
ment that the board could not recon
vene Of its own volition, and held that
| ii it could rot on its own motion that
the court had no power to force it to
do so. He said that If the nandamEs
was issued 1T would necessarily carry
| with it the impiica tom that the board
had failed TO perform its duty, and
| shoulder upon it the penalty of the
p! costs ia the case. In conclusion JUS
| tice Horton said that the only point to
, be determined by evidence was whether
the board had adjourned without date
prior to the receipt by the secretary OF
state OF the amended returns.
Judge Frank Doster. at the couclu-
sion Of the opinion said that he and his
| associates were not decided as to their
| further action and asked that the COT
| feyvillse case be taken ND before they
proceeded further. The decision OF
! Justice Horton is practically final, for
| the records show that adjournment OF
the canyaSoing board was had nineteen
days prior to- the receipt Of the amended
returns.
The clerk and county commissioners
of COtEey county We're i'll attendance
with the records showing the canvass
made OF the election returns. 1t WAS
shown that in Avon township the
| township trustees in .coan ting the tai
lies Of the votes found ninety-six. and
so designated on the tally sheet re-
turned to the commissioners The com
missioners. following ii rule which has
been in force in COtfey county for
eight years, counted thetallics and find
ing ninety-iEe SO reported to the state
board of canvassers. 1t was mot disputed
that the board had been in the habit of
correcting re turns from township CLERKS
in this way for years, and that they
had found it necessary to make many
corrections during this period. This
year twenty-four corrections OF this
kind were made. most of them against
republican candidates for various off ces,
tance was the one in the case of Mr..
Rice, the populist ca ndidate for the lcgis-
lature. The peoples party member OF
the board made objection to returning
95 votes for Rice instead of 96, and
noted his objection the IL prgin Of
the certified return sheet. He testifie ed
that the tallies. however, numbered
but So Had Mr.. Rice been given 90
votes in Avon township he would have
been elected, but with 95 his vote was
tied with that of his republican oppo-
nent, L. c. Bullinge +.
In the jackson county case the court
had previously rendered decision in
favor of the republican member, hold
ing that it was clearly the intention OF
the Legislature to include HoIton in the
district aud in Republic county it was
held that the misprinta of the number
of the district did not invalidate the
election.
| Colorado senate Dead Locked:
| DENVER, Col, Jan. 6-The senate has
resolved itself into a deadlock and
when it will get out of the muddle no
man can tell. The seven democrats
| known as the white wings faction.