Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1897-05-08

claimed intention of the voter ArtZ |
to reside in said township has not |
been carried out by some act. nor is |
there any evidence tending to excuse |
the omission of such act. This we
think ought to have been shown in |
view of the length of time said voter
has had to carry out his intention.
We therefore find that said ArtZ was
not legal voter at said election. and
we further find that he voted for Josh
ua MuSgrave. cOnteStee, herein for
the office of County Commissioner of
the First District of Trego county,
Kansas. These findings so far as they
state actually existing facts outside
of the intention of the voter to perm
anently locate in Trego county. are
fairly supported by the evidence.
The question of intention is one that
can be judged by the tribunal trying
case of this nature from all the sur
rounding circumstances. and it is not
bound to accept the declarations of
the party in this regard if they appear
to be at variance with such circum-
stances. In this case there were
many facts proven which tend to
strengthen belief that the sojOurn
of the voter in the county, was for
temporary purpose only. The con-
test court after considering all the
testimony, in effect, held such to be
the fact. Applying the rule so often
laid down by the Supreme Court of
court will not be disturbed on review
unless clearly contrary to the evil
dence. and the provision of our cleo
ton laws that 1.-THE place where Il
married mans family resides shall be
considered and held to be his resi-
dence' to this case it does not now
seem proper to disturb the courts
conclusion that Mr.. ArtZ was not
legal voter.
But the facts stated in the findings
and the testimony produced on the
trial relative to the qualifica-
vague and uncertain and it is
more difficulty to reach a conclu-
sion in his than in the case of
any of the other alleged illegal voters.
| He is single man and came to Trego
county in July preceding the election,
as he says, for the purpose of selection
d location for farming if he found one
that suited him, leaving his house
hold furniture and some stock in Lane
county He remained in the town.
ship where he voted from that time,
| but made no permanent arrangements
for a location until after the election,
when he found a satisfactory one in
another township and then removed
to the same. 1t appears from the
evidence of one of the judges of cleo
ton that he stated under oath at the
| polls that he did not know whether
he would or would not return to Lane
county. From his testimony given at
the trial and his conduct and declara-
tiOn at the polls the contest court
might have warranted in finding that
he had formed no definite plans and
was simply drifting along with no
fixed intention regarding the future.
1t is probable, but not altogether GER
tain, that his vote was properly re-
jected. If the final decision of this
case depended upon that question
In1 10
hesitation that this court would sus-
tain the conclusions of the court be-
low.
Before passing entirely from the
consideration of the question whether
the findings and conclusions relative
to the votes of ArtZ, EOrdice, Vest
over and Sherry should be disturbed
it is proper to remark that the de-
PENDANT in error insists that this
court has no right to consider the
question because the 18th finding was
not excepted to on the trial by the
as follows:
''Thirteenth. We further find that
John +. Barclay, confession, received
ninetY-two legal votes for the office
of Commissioner of the First Commits
Sioner District of TregO county, Kan
sas, and that Joshua Musgrave re-
ceived ninety legal votes for the office
of Commissioner of the First Com
missioner District of Trego county,
Kansas"
AS shown by the record, this and
other findings were presented and
read by the confession. The con-
testee made objections to several of
the findings so read on various
: grounds, but did not include the 18th
=. in such objections. The court after
wards adopted the findings as pre-
sented as its own, and the contestee
then excepted to several of them but
not to the one in question. His at
tOrney has challenged the truthful
ness of the record and filed an atflda-
Wit stating that he did in fact except
the finding last above quoted. The
rule of law that statements of bill
OF exceptions, so far as they relate to
matters properly included therein,
cannot be contradicted by extrinsic
evidence of any kind is too well set
tied to admit of argument, therefore
the affidavit mentioned must be dis
; regarded and the record accepted as
true by this court. The cases of
Baker VS.. Long, 18th Kansas, 81, and
Cowling VS.. Greenleaf, 33rd Kansas,