The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-07-05

under the guidance of opinions honestly
formed, however mistaken in fact 1t
has no application to acts done under
the influence of corrupt motive Even
arbitrary and capricious conduct,
amounting to an abuse of discretion,
will justify mandamUs to compel a
proper performance of duty, upon the
theory that there has been in fact no
real exercise of judgment
''The bias. prejudice, partisansh1p
and unfairness imputed to the members
of the board cannot alone be made the
basis of the relief sought.
But it cannot be thought that 1t was
ever intended that no remedy should De
afforded against their actual fraud
The court then declares that a declS-
ion rendered in accordance with a
previous agreement is really no decision
at all, entitled to no, respect and not
even requiring to be set aside; and that
if sucn a decision were rendered the
board making it would be disqualified
from acting further and the courts
would necessarily take Jurisdiction OF
the matter. The opinion continues:
IF it shall be established that the
charges of fraud against the members
of the contest board are well founded,
this court will not hesitate to examine
into the facts with a view to determfn-
ing the merits of the original contro-
versy between Allen and BowerSock,
and to make ar order in this proceeding
for the secretary of state to certify 10
the county clerks the name of which,
ever candidate may be found to pc the
rightful nominee But as the Jurlsoic-
ton of the court to make such inquiry
depends wholly upon the disqualinca-
ton of the statutory tribunal 1t VIII
not be entered upon unless Such as
qualification shall be established, nor
until it shall be. By an order to be
hereafter made, after receiving sug-
gestions from counsel as to suitable
time for such hearing, opportunity VIII
be afforded for the production OF evl-
ft.a
dence bearing solely upon the questloli nt !
whether the decision of the contest
board was made in pursuance Oh a
fraudulent scheme to which the mem
bers who Joined in the decision We're
plaintiff shall fail to establish sucn
fraud on their part, an order viii be
made denying the peremptory writ. II
the evidence shall sustain the charges
further provision will thereafter be
made for hearing upon the question
thereby opened up for fnvest1gatlon'
and in that case the occasion for ma
ing Bowersock a party Will be cohslo-
cred
But before any further step is ia
ken in the case it is ordered that the
plaintiff cause the attorney general 70
be made a party hereto, ~add1hs ms
name as a defendant and serving no no
tice upon him of the pendency OF the
action. This course is pursued not III
response to the suggestion that IN ms
a bsence there is a technical detect OIL
parties, but entirely irrespective VI eIly
question of that character. Since the
immediate subject of inquiry is the
good faith of the board, the charges
made affecting him equally with the
secretary of state. the taxing OF eVl-
dence viii not be entered into without
ena bling him to participate in the pro-
ceedings with whatever advantage may
he derived from being party to the
litigation, and as such entitled 10 oe
besrd in his own defense as a matter of
right