The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-04-16
FAVOR OF PARKER.
CONTINUED from First Page-)

to compei the canvassing board to per-
form its duty and make the proper can
vass and abstract Whicn show that he IS
so elected and prima facie entitled to the
Officer True, mandaTnus will not glNt
him the office; other proceedings may pc
necessary to GUST the incumbent. and
place the plaintiff in the Office. but that
affords no reason why the defendantS
should not be compelled to perform du-
ties imposed upon them in the prem
ises.''
In the case of Anderson VS. The Co1a-
nissioners, 81 w. va. 6.s;, the court sa yss
Although the whole matter may be
reopened by the tribunal which VIII Try
the contest for an office yet the person
really elected has the right to have the
certificate Of election given to him by
the canvassers or proper evidence OF the
correct number of votes he received 70
be PRESENTED to the officer having the
right and by law required to give the
certificate"
Where this question has been before
the courts it has been invariably held
that If the successful candidate is de-
prlVed of his certificate. by the board OF
canvassers the board may be compelled
by mandamus to recanvasS the returns
and issue a certificate to the person hav-
ing the greatest number of votes on the
face Of the returns. A certificate is rec
oenized as having an intrinsic value
and should be issued to the person hav-
ing the highest number of votes.
1t is further claimed on behalf OF de-
PENDANTS that the writ Of mandamus,
under the circumstances of this case,
would be fruit1esS and unavail1ng for
the reason that defendant Hughes now
holds a certificate, has qualified and IS
acting mayor A complete answer to this
contention is that it does not appear
upon the face of the writ that a certifi-
cate has ever been issued to Hughes
or that he has ever qualified or is acting
mayor. But conceding this question to
be in the case, it has been frequently de-
termined by the courts that the fact that
a certificate had been issued to the
wrong party would make no difference
in the right of the successful party to
procure q certificate.
In the case Of People, ex rel, VS.. Rives,
27 Ill 242, the court says:
Upon a petition for mandamus to
compel county clerk to issue a certifi-
cate of election to the relatOr who was
duly elected justice of the peace. IT is
issued a certificate to the REALTORS com
petitOr and that he has been regularly
commissioned by the governor"
Again in the case of State ex rel, vs..
Trimble, Il Washington, 440, the court
'.The fact that a certificate of election
has been issued to other than the person
entitled thereto will not relieve the can
vassing board from the duty OF making
a proper canvass and issuing the neces-
sary certificate, and mandamus viii lie
TO enforce this duty
In the case of People VS.. Hilliard. 20
III. 413, the court says:
Nor does the fact that, upon some
erroneous rule, a certificate of election
has been issued to other than the person
entitled thereto relieve the canvassing
board from the duty of making a proper
canvass and issuing the necessary certi-
It is further contended on behalf OF
defendants that the personnel of the city
council which constitutes the board of
canvassers has changed. that some of the
members of the council who then COM
out of office and others have taken their
places, and that the court is not author
damus against those who have ceased to
lied to grant a peremptory writ of man
be members of the council or against
those who have become members of the
council since the making of the canvass
complained of and who are not parties
to this suit There is nothing on the face
of this writ to show that there has been
any change in the personnel of the cOun-
ell since the making Of the. canvass COM
planned of. and therefore this question is
not now before the court for considers
ton.
The writ shows upon its face that it is
proceeding against the members Of the
board of canvassers in their official ca
pacity, and do not think it necessary
that the city should be a party to the suit
The action IS therefore properly brought
against the persons named in the writ.
1t is further cOntended on behalf of de-
PENDANTS that the writ does not recite that
Parker received a majority of all the votes
cast at the election. This allegation would
be necessary in contest or in quo war
rantO proceedings where the title to the
office is in issue but in proceeding of
this Kind this allegation is Unnecessary
In this proceeding 1t is not important to
inquire which candidate received the
greatest number of votes at the election,
but the question is which one received the
greatest number of votes as indicated by
according to law. This proceeding is for
the purpose of compelling the canvassing
which one did in fact receive the greatest
number of votes according to the face Of
The motion to quash the alternative writ
of mandamus viii be overruled and de-
which to file answer. and the case will be
set Tor hearing at 3 O'Clock a m, Sat
HISTORY OF PROCEEDINGS.
The contest over the office of mayor be-
gan as soon as the city council, sitting
as a eanvassing board, issued a certificate
of election to Colonel Hughes and he took
the oath Of office as mayor.
The returns from the election held on
April showed that Albert Parker had
was some talk Of Hughes contes3ing. On
the Friday evening following the election
board and went over the returns 1t was
found that the returns as certified by the
judges Of election still gave Parker IL ma
1ority- Inc canNasslng board then pro-
Seeqed TO count the tallies of the poll
The reeounting of the tally sheets pro-
ceeded without any change until the tally
sheet OF the first precinct of the Second
ware was reached and mere a discrep-
ancy of 10 votes was found between the
tally and the total as set down in the
discrepancy was found Of 5 votes between
the taily and the total IN the women
column Both were in favor of Mr.
Hughes as. the figures showed that Mr..
Parker had 342 votes in the total and
there were but ST tallies on the record.
The attorneys for both sides at once be-
gan to argue concerning how the vote
should be counted. The attorneys for Mr..
Parker contended that the totals were in
all probability correct as the clerk had
evidently been poor one and had fol-
lowed the clerk keeping the other tally
sheet They said he had evidently not
kept up the count when putting down the
ITALICS and that he had taken the totals
from the other sheet. The judges all
signed the sheet on which the totals must
be correct The committee was not sat-
isfied and the tally sheet was put back iii
the envelope and marked ITO be re-
ne sheet from the third nrscinct of the