The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-04-23

were cast and counted for Parker in or
der to get the result arrived at by the
board. If we take the result arrived at
by the board for the female vote of that
precinct, before we can say it is abso-
lutely correct we have got to guess that
there were 10 voters who either did not
vote for mayor or whose ballots were
mutilated and not counted.
1.-THE canvassing board had no right
to presume nor guess at anything They
can't presume that Is voters did not vote
for mayor or that if they did they mark
ed their ballots or mutilated them so
that the judge and clerks could not
count them. In order to arrive at the
result reached by the canvassing board
in the female vote of this precinct we
have got to presume, first, that three or
five votes Tailed above and erased were
carried below into the Woman'S column
Second, we have got to guess that Is
votes marked in the Spivey column
were cast and counted for Parker, Third,
we have to guess that IS votes, which
were placed in the ballot box by voters,
did not contain vote for mayor or that
If they did the ballots were SO mutilated
or marked or were so defective that they
could not be counted by the judges and
clerks and that they were not counted,
as taking the tallies the vote of the first
precinct Of the Second ward as counted
by the canvassing board was 13 less
than the total number cast.
1T will therefore be seen that in or
der to arrive at the results reached by
the canVassing board, the board follow
ed unintelligible tallies to which they
had to apply gueSseS and preSumptlonS
and that these guesses and presump-
lions were allowed by the board to pre-
vail and to bolster up an unintelligible
tally sheet in order that it might over
come returns which are clear, Iegible
and Ineligible against which there is
no charge that there was any fraud in
their compilation and no charge that the
figures have ever been changed
since compiled. BY method OF
reasoning and guessing, unintelligible
sheets were by the canvassing board
made to control ineligible returns de-
spite the fact that the returns are the
work of five men while the tally sheets
are the work of but one man. and as
they show on their face, the work of an
incompetent man.
Beyond this there is no law in our
state making tally sheets a part of re-
turns. Our law is copied word for word
from the Missouri law including the
forms of the poll books and the Missouri
supreme court has held that under their
law the tally sheets are not a part Of
the returns and can not even be consid-
cred by a canvaSsing board in declaring
the result of an election. That makes
the decision of the supreme court of
Missouri almost binding upon the courts
of this state from the fact that that is
the best law there is upon the statutes
In question.
Taking either horn Of the dilemma
ParkersEnust win this case. First, if the
TALES are held to be a part of the re-
turns they are unintelligible and the re-
turns must therefore govern. Second, II
the tally sheets are not a part of the
returns then the canvassing board had
no right to even look at them. The re-
turns under such constructions are final
and conclusive and so Parker must win
this case whatever the court holds on
the question Of whether the tally sheets
are a. part of the returns or not.
In the third precinct Of the Third
ward the tally sheets are SO clearly I'M
ineligible that no sane man can con-
tend for moment that they ought to
govern or control the returns. But as
the first precinct of the Second ward is
the only precinct in dispute which would
change the result the case must hinge
on that precinct alone. The same prin-
ciple, however, which must govern the
first precinct of the Second ward must
also govern the third precinct of the
Thind ward and in any event Parker
must be declared elected on the face of
the returns by nice votes. If the returns
made to the commissioner Of elections
are to be considered as governing then
Parker must be elected by II votes. In
any event under the law presented by
counsel for Hughes or under the law
presented by counsel for Parker Parker
must win this maOdarnl1S sniff