The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-04-29


i've ballots for each fifty names on the
registration books of persons entitled
to vote at that precinct This same law
provides that all ballots not used and
all that have been spoiled by the voter
while attempting to vote shall be re-
turned by the judges of election to the
officer from whom they We're received,
and shall also return to such officer, in
a sealed envelope, the ballots voted at
that precinct. Under this law it is
made the duty of the judges to return
to the city clerk all ballots not used
together with those spoiled and also
the ballots which have been voted. But
there is no provision in this law for the
making Of any return to the city clerk
other than the delivery to him of the
ballots
TALES NOT CONSIDERED.
Taking and considering these stat
utes together, we have provision for
the return of the ballots to the city
clerk, for the return of the poll book to
the commissioner of elections and for
the return of a summary staten ent of
the number of votes cast and the num-
Der counted for each candidate to the
commissioner of elections and the
board of supervisors But we are IN
able to find any statute authorizing the
return of any tally sheets, or to find
any statute expressly requiring the
keeping of any tally sheets at city
election in a city of the first class hay
ing commissioner of elections The
supposed authority or necessity for
keeping a tally sheet can only be in
ferred, as a matter of convenience to
the election board in keeping the count
for the purpose of announcing the re-
suit
At the time of the canvass in contro-
versy the question arose before the
canvassing board as to whether the
tally sheets in possession of the city
clerk should be considered in making
the canvass.
The evidence shows that there were
discrepancies between the certificates OF
precincts in question, and the evidence
further shows that where such discrep-
ancy arose the canvaSSing board accept
ed the tally sheets as against the GER
tificate Of the judges, made the canvass
and arrived at the result upon that
theory. If the tally sheets are not part
of the returns then the board of can
vasSerS would not be authorized TO
take them into consideration in
making the canvass, and if
the certificates of the judges IN the
hands OF the clerk were the returns con-
templated by law, then the canVasslng
board should have accepted such certif-
icates as controlling and made the can
vass accordingly.
CASES NOT PARALLEL
It is urged on behalf of respondents
that under the case of Rice VS.. the board
of canvassers of Coffey county ct al so
Kan 145, the tally sheets are a part of
the returns of the election and should be
considered in making the canvass In
to whether the tally sheets were part
of the returns but that question was not
decided Justice Johnston who wrote
the opinion cites the authorities bearing
upon this question and expressed it as
his view that the tally sheets are a part
of the returns But it must be remember
ed that the returns in question in that
case were the returns at a general cleo
ton and therefor were governed by the
general election laws. Section 1 of chap
H..
provides that all elections hereafter to
be held for state, district and county Of
ficers shall be held and conducted in the
manner prescribed in this act. Section
81 of the same law provides that the
clerks shall enter IN a column under tire
names of the persons voted for. as here
in after provided in the form of the poll
books, all the votes as declared read by
the judges. Section 20 of that act pro-
vides that 1.-The following shall be the
form of the poll books to be kept by thu
judges and clerks of election held under
this act" Then follows the form of the
poll book to be used and in this form
there is a tally sheet provided for, and it
is thereby made a part of the poll book.
It was this kind of a tally sheet that
was before the supreme court in the case
above cited.
Section 26 of this same act provides
for the sending of one of these poll
books, under seal, to the county clerk
A canvass by the county commissioners
is then made from this poll book which,
by statutory requirement, contains the
tally sheet; and under these statutory
provisions I am impressed with the
views expressed by Judge Johnston. And
yet, in his opinion, he recognizes the
fact that upon similar statutes the
courts of other states have disagreed.
But if these statutory provisions re-
lating to general elections do not apply
to city elections and in the city election
laws there is no provision for the keep
ing or returning of a, tally sheet and no
law by which it is made a part of the
poll book. no form prescribed, it seems
clear that the courts would hold that
the tally sheet found with the returns in
a city election should not be considered
as part of the returns.
It does not seem that the legislature.
after having provided all these various
methods of obtaining prompt and cor
rect returns In city elections during the
session of the board of supervisors, could
have intended that the express statu-
tory provisions could be overthrown or
controlled by q recount of the tallies
made upon a tally sheet, where no ex-
press provision is made in law for the
keeping of such tally sheets i'll such cleo
tons or for their return to any officer.
CONFORM TO LAW.
The certificates of the judges from the
two precincts in question are in sub
Stantial compliance with the returns re-
quired to be made to the commissioner
of elections and the board of super
visors, and being the only returns
authorized by law to be made and it
being admitted that they are legally n
the custody of the city clerk it follows
that the canvassing board should can
vass the returns of those two precincts
in accordance with the certificates of
the judges and ignore the tally sheets
In the argument of the case there was
some reference made to ordinance No. ISL
Of the city of Topeka which took effect
April 3. 1887, but as that ordinance was
not offered in evidence it is not now be-
fore the court for considerat ton and it