The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-04-16

quiet The reading of the opinion oc-
cupied about Is minutes. Mr. Parker
occupied seat by the door at the north
side of the court room and Col. Hug hes
sat in front of the judges bench When
the decision was closed there was no ap-
plause and no excitement above a hum
of voices and the crowd left the court
room.
PARKER WAS NOT CONFIDENT.
Albert Parker, in whose favor the mo
tion to quash the mandamus proceed
ings was decided, did not feel at all sure
that he would be victorious in the first
round Of the contest.
Il have felt that this proceeding was
not the right one and I did not favor it
at first" said Mr.. Parker this morning
as he was walking to the court house to
hear the decision. 1.-The attorneys IA
vored it and said that afterwards quo
warranto proceedings TO force a recount
of the votes, could be brought. That is
what 1 wanted but the mandamus, the
lawyers said, was the short cut. We:l,
welI soon KNOW" continued Mr.. Parker.
He glanced across the street and saw
Col Hughes approaching the court
house. -.Ah there comes the colonel"
remarked Mr.. Parker
JUDGE HAZEN'S. DECISION.
Following is Judge Hazen's opinion in
full:
The legal questions now under consid-
GRAFTON arise upon motion OF the de-
PENDANTS to uuash the alternative writ
of mandamus heretofore issued. This
motion challenges the sufficiency of the
writ the same as a general demurrer
challenges the Sufficiency of a petition
If the alternative writ is sufficient on
its face to entitle the plaintiff to the re-
lief demanded then the motion must be
overruled; otherwise it must be sustain
ed.
1t is well settled ana in fact elemen-
tary that the courts can, by mandamus,
compel an election canvassing board 10
Eecanvass the election returns, when
proper showing has been made The dtI-
ties Of a canvassing board in canvassing
election returns are prescribed by law
and are purely ministerial The law pre-
scribed the manner in which the vote
must be canvassed and the courts viii
require a canvass to be made in accord
ance with law.
The argument upon this motion has
gone far beyond the legal questions rais-
ed by the motion. The court in deciding
the motion must look alone to the alter
native writ and say from the writ itself
whether the plaintiff is entitled to the
relief demanded or not.
1t must be kept in mind that this is
not a contest between Parker and
Hughes over the title to the Office OF
mayor. but is a contest between Parker
and the canvaSsing board, composed Of
the city council as to whether the cleo
ton returns were legally canvassed. It
is we'll settled in this state. that manda-
mus win not lie to try the title to an
Office but IT = equally we'll settled that
mandamus will lie to compel canvass
ing board to legally canvass the election
returns and declare the person elected
who has received the greatest number
of votes on the face of the returns
It is claimed on behalf of plaintiff
that there was a difference between the
number of votes received by the respec-
tive candidates for mayor as shown ~
the certificate of the judges of certain
precincts and the number Of votes as
shown by the tally sheets returned The
writ charges that the number of votes
as appears from the certificates of the
judges Of two certain precincts is defin-
lite, plain and certain bat that the tally
sheets from said precincts are obscure,
ambiguous and unintelligible, and that
the canvassing board in making its can
vass ignored the certificates of the
judges, which were definite and certain.
and declared the result from the tally
sheets which were obscure, ambiguous
and unintelligible, and thereby deprived
the plaintiff of enough votes to entitie
the defendant Hughes to a certificate ri
election; and it is insisted on behalf of
plaintiff that under these circumstan-
ces it was the plain, legal duty of the
board of canvassers to declare the re-
suit according to the vote as it appeared
from the certificate of the judges
Much was said in the argument of this
motion as to whether the canvaSsinS
board in making its canvass of the
votes should be controlled by the vote
as certified by the judges or whether
the board Is authorized to look to the
tally sheets as well as the judges certif-
icate for the purpose Of making the can
Vass, and large number Of authorities
has been cited pro and con upon this
question 1t is not necessary on this
motion to decide whether the canvass
ing board in making its canvass should
be governed entirely by the certificates
of the judges, without the aid of the tai
" sheets. or whether the board woul 1
have a right to consider both the certif-
fcate Of the judges and also the tally
sheets.
The allegation In the alternative writ
Is that the tally sheets upon which the
canvassing board made its canvass were
obscure. ambiguous and uuintelligible-
IlllS allegation, for the purposes OF this
motion, must be accepted as true; and
there can be no doubt that if the tally
sheets were in the condition charged IN
the writ and the certificate Of the judges
was plain and certain as charged, the
canv vassing board, in making its can
vass should go to the certificate Of the
Judges and ignore the tally sheets
It is urged on behalf Of the defendants
that mandamus viii not lie because the
pia1rtim has an adequate remedy at law,
that he can substitute quo Warranto
prCceedinSS or contest proceedings for
the purpose OF trying the title TO the Of
fee. In discussing this question in the
case Of In re Sloan, NJ M $50; the court
says rs IT an adequate remedy 1of a
canu1dau7, having received the greatest
NUMBER of votes 20 be compelled to test
before the legislature n defeated eandi-
dat having prir1a facie evidence of ii
tie to the office given him in viola tion
of l2W2 Plainly II is not. The law com
man.7s the board, and If they refuse tne
court must compel the board to give the
successful candidate prima facie evi-
dence Of his right 10 the office; for it is
for the defeated candidate to resort to
quo Warranto, or contest. as the case
may be These remeaies may be ad-
eQuate for the defeated candidate. hut
date
In the case of Smith VS.. Lawrence ct
al 50. Dakota. 1s5. in discussing this
question the court says: