The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-12-15
NIXON WINS 1T.
Republican Gets Decision in
Barber County Case.

The Nixon contest for the Barber
county seat in the legislature was de-
cided in favor of Nixon by the supreme
court today, which dismissed the appeal
from the decision of the lower court.
H. c. Walker the fusionist, was
counted out after it was believed he was
elected. The district court decided that
enough illegal votes were counted for
Walker to elect him, and these were
ordered thrown out.
The supreme court held that the
plaintiff had appealed from an order to
which they had already yielded obedi-
ence. This leaves the case as it stood
after the decision by the Barber county
court in favor of Nixon. Walker may
bring contest in the legislature but
Nixon, who is a Long supporter, will be
in on the senatorial caucuses.
Chief Justice Doster prepared the
opinion as follows:
This was an action of mandamus to
compel a county board of canvassers to
accept the election returns from one of
the townships as showing a certain
number of votes cast for a candidate
for office, and to declare the result ac-
cordingly. E. H. Nixon and H. c. Walk
er were opposing candidates at the re-
cent general election for representative
to the legislature from Barber county.
The election returns from one of the
townships were not in strict conformity
with legal requirements, and because
thereof were supposed to involve the
question OF the number OF votes cast Tor
candidates for representative in some
doubt. However, Nixon claimed they
satisfactorily showed that eight more
votes were cast for him than the board
of canvassers were willing to count for
him. These votes were determinatiVe of
the result for the office named and
mandamus was issued in Nixon's behalf
to compel a count of the votes in ques-
ton for him. After trial the writ was
made peremptOry. Pending the prepa-
ration of a record on which to yrose-
cute error to this court the members of
the board of canvasSers Obeyed the com
mand of the writ by counting the votes
and certifying the result accordingly,
after doing Which thew adjourned sine
die. Two of the canvassers made the
count and certificate under written pro-
test. Those two only have prosecuted
error to this court. This, however, they
were entitled to do. Hughes VS.. Parker
63 Kan. 297.
1T is not necessary for us to examine
into the merits of the case; or more
accurately speaking, we cannot do SC.
The plaintiffs in error have appealed
from an OF der to which thew had already
yielded obedience. That they cannot do.
They cannot perform the required act
and at the same time appeal from the
order requiring its performance. If we
should reverse the judgment there would
be nothing on which the order of this
court or that of the court below on its
! reopening Of the case could operate. The
! count or votes mas been made, the result
has been declared. the board of can
vassers have adjourned sine die, ard
/ thereby became functus ohicio and in
capable of reconvening either OF their
own volition or by order of court. Ro-
seminal VS.. the State board of Can
vassers, so Kan 129. court Will no.
make an order which in the nature Cf
/ things cannot be obeyed. Thus, when {,
/ justice of the peace enormously refused
| to Grant change Of venue of a case
but retained it for trial. and rendered
judgment in it, which judgment was col
lected on execution. it was held THAI
manGamus would not lie to compel the
change of venue. Ellis VS.. Whitaker, 81
Kan $50 In Parsons VS. Tetirick 6.
Kan. S19 Ga Pac- 1925 it appeared tina,
after the issuance of a peremptory writ
OF mandamus to compel the transfer OF
shares of corporation stock, and pending
the conduct of proceedings in error
therefrom, the corporation became in.
solvent, its affairs were wound up by
order of court the whole of its assets
disposed of. its officers went out of DO
sition entirely, and it retained nothins
but nominal existence. The proceed.
1ngs in error were accordingly dis
missed because of the futility of any or.
der. which were it to be made. woult
be of no substantial avail the cour
among other things saying:
1t has been many times held tina