The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-06-10


missioner of elections law governed,
the court held that the election was
held under the city election law and
that the action of the canvassing board
in considering the tallies was proper
The court also held that none OF eAe
provisions Of the Australian ballot law
seem to have application to the case"
The court refers to the laws OF 1881 and
1889 as governing the city election and
after quoting the laws says: It viii
be observed that none of the sections
above quoted provide in terms for the
keeping of a tally list by the clerks OF
the election, and 1t will be observed
that none of them provide for the trans
mission Of the election returns from the
election officers to the board OF canvas
sers, and it is conceded by counsel on
both sides that there are no statutory
provisions in which terms direct now,
or BY whom, returns Of city elections
shall be laid before the board OF can
vassers- It is however, conceded by
counsel on both sides that the ELECTION
returns in question did properly get be-
fore the board of canvassers and we
are, therefore, relieved from a consid-
Grafton of the regularity of the proceed
ings in that respect, but the question
what are election returns in a city of
the first class, still remains. We are
constrained to think that under section
10. above quoted. the keeping of tally
list at a city election is a legal require
ment, and being such, that it consti-
tutes part of the election returns"
In reference to the question Of the
right of Parker to bring mandamuS
proceeding the court says:
THAT the plaintiffs showing of the
legal right was not clear and therefore
that the writ should not have been al
lowed to him, is said in view of the
ruling just made that the tally mark
ings may be examined, and in cases OF
discrepancy may control the certificate
of totals. In that view of the case the
board Of canvaSserS were as we'll quail
fed to examine the tallies and declare
a result therefrom as was the court be-
low, and unless the tally markings
clearly showed that the board of can
vaSsers was in error, and that the
plaintiff had received the greater num-
Der of votes, the discretion Of the court
below to award the writ should have
been differently exercised. However, 1T
is due to the court to say that While 1t
made findings of fact from which the
inference may be drawn that it took
into account the tally markings, its
judgment seems to have been rested
upon the legal propositions that the
tally markings constituted no part OF
the election returns, and that the GER
tificates of totals could alone be looked
at to determine the result This we
think as error
In reference to the action of a, ma
jority of the council in refusing to APP
peal the case, the court said: "Objec-
ton is made in this court to our right
to review the case because some of the
members OF the city council, made de-
PENDANTS in the court below, have re-
fused to join as plaintiffs in error in
this court. In fact as the defendants
in error claim a minority of the defend
ants in the court below join in the
prosecution of the proceedings in error
1t is true that a board of election can
vaSSerS acts as an entity. The canvass
is the act of the board and not the sep
arate or separable acts Of the indl-
viduals composing it. However, it by
no means follows that an individual
member of the political entity who has
been com manded to make q canvass,
may not appeal in his individual right
from the order made upon him.
1t would be intolerable to refuse to an
individual member of such board who
has been commanded to take part,
along with his fellows, in the canvass
of a. vote, or in its canvass according to
some legal rule laid down to him. the
right to appeal from the order which his
conscience would not permit him to
obey or which in his judgment was
erroneous.
In the dissenting opinion Chief Justice
Doster says: Il dissent from the fore
going opinion. In my judgment the re-
turns of a city election consist solely Of
the summary statements provided by
sections 10 and IL, chap. 206, laws Of 1889.
am of the opinion that under the law
for the election of state, district and
county officers, the tally lists constitute
d part VI the election returns Inc Sld-
tute providing for city elections does
not in terms provide for the keeping of
q tally list. cOncede the proposition
of majority that the statute of its own
force carries the election returns to the
board of canvaSSerS. / do not cOncede,
however. that the statute of its own
force carries the election returns from
the judges and clerks of election direct
to the board of canvassers The sta
tute provides for the making up of sum
mary statements by the judges and
clerks Unquestonably these statements
are evidences of the result OF the cleo
ton InaSmuch as the statute ex pro
priO VigOre carries the returns, whatever
the returns may be, to the board of can
vassers, why not say that the statute
carries those returns from the board of
elections which, as we see, officially re-
ceiveS them from the judges and clerks,
as to say that it carries them from the
judges and clerks past the board of cleo
tons to the board of canvassers2 The
statute provides for the making up of
summary statements as evidences of the
result of the election. 1t does not pro-
vide for the sending Of those statements
to the board of canvassers.
ITO my mind there is no cogent reasons
contrary, the certified totals of election
officers should alone be considered the le-
less opportunity between closing the polls
and the canvasstng of the result to forge
there Is TO tamper with tally sheet
rallies are pen markings made opposite
the names OF the candidate for the pur-
pose of keeping the account Of their votes
as the ballots are taken out of the box.
It is easy. indeed, to add few tallies to
the vote Of a candidate and it is easier to
efface a few tally marks by the use OF
chemicals than it is to erase the fig
ures Of a candidates total vote contained
in the judges certificate and write in a
different number. Besides, the rule an
nounced by the majority of the court
makes the certified totals of no account
whatever in case of a discrepancy be-
tween them and the tally list
The learned judge of the court below
in his decision of the case filed a written
opinion which, in my judgement. entirely
covers the ground and leaves little If
anything more to be said in defense of-the
proposition that under the statutes We are
considering only the certificates of the
election officers examined by the can
vasSing board. I content myself with SUBJ
joining the greater portion of that opin-
ION as expressing the views | entertain
The major portion of Judge HazenfS
ll-l H.