The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-07-05
COURT SAYS HOLD
Will Prevent Nominees Being
Imposed Upon.
Must However Show There Has
Been Fraud.
DECISION A DOG FALL.
Allen and Anthony Win Only
Partial Victory.
Will Have to Prove Fraud on
Part of State Board.

The decision handed down by the
supreme court today in the Allen
Bowersock and Anthony-Curtis con-
gressional contests, was a sort of dog
fall The court says that if the al
legation of fraud on the part of the
contest board can be established, it
will take Jurisdiction of the contests
open them up and decide the cases
upon their merits. If the plaintiffs
do not prove fraud on the part of the
contest board, the court will not go
into the merits of the cases, but the
decision of the contest board will
stand regardless of the merits of the
contests.
The next move of the court will
probably be to appoint a referee to
take testimony on the allegation of
fraud. Allen and Anthony must estab-
iiSh that before the court will con-
slider any evidence concerning the
way the congressional or county con-
ventions were managed or who really
won in them. II fraud is not estab-
lished in the evidence submitted to
the referee the proceedings will be
dismissed
The cases came up before the su-
preme court on applications for man
damus to compel Secretary of State
Burrow to certify the name of H. j.
Allen as the Republican nominee for
of j. d. BowerSock. and the name OF
d. r. Anthony, jr., as the Republican
nominee for congress in the First dis
trict instead of Charles Curtis. The
constitutionality of the law creating
the state election board was attacked,
but the court says the law is consti-
tutiOnal; that the decision of the cleo
tion board is final except in the case
of fraud on the part of the board.
Fraud and collusion on the part of two
members of the election board is also
alleged by the plaintiffs.
Mr.. Allen, however, admits that
outright fraud will be difficult to es-
tahlish; that the only evidence which
it will be possible to produce will be
the actions of the members of the
board themselves. In the previous
decision along this same line. however,
the court speaks of arbitrary action
amounting to fraud" Mr.. Allen says
he can show arbitrary action without
any trouble, and if that is construed
as amounting to fraud he may be able
to esta blish sufficient fraud on the
part of the board to get the entire
case opened up The chances are
against him, however
The decision today was rendered on
a motion to dismiss made by the de-
fendant, which is denied by the court.
The opinion was written by Justice
Mason.
Details of the Decision.
After stating the case and the con-
tentionS of Mr.. Allen in the Secor dis
trict contest, in which the opinion is
rendered the court declares that the
statute creating the contest board is
constitutional and passes upon one or
two minor points. The opinion then
continues:
1T remains only to consider the eff
feet of the allegations of the alterna-
tive writ that the majority of the con-
test board, who made the decision
against the plaintiff, did SO in COM
pliance with a corrupt and fraudulent
- -
that plaintiff should be prevented from
having his name printed upon the Off
cial ballot the Republican candidate
for congress, regardless of the merits
of his claim. So far as the allegations
of conspiracy relate only to fraud
practiced against the plaintiff by his
political or factional opponents. in re-
gard to choosing delegates, manipulate
ing committees. organizing conventions,
filing certificates, and all other matters
affecting his right to be recognized by
the contest board as the regular NOM
inee of his party. they are not material
concern questions which under the sta
tute must be decided by that board and
not by the courts.
at has often been said of special
tribunals established by statute to pass
upon matters expressly committed to
them that their jurisdiction is exclusive
and their determinations final and tnat
the courts Will not REVIEW THEIR COLI
clusions nor inquire by what method
they were reached; but always with an
express or implied reservation that the
statement holds good only where the
action of such tribunal is characterized
by good faith. and is free from fraud,
corruption and oppression. No rule is
better settled than that the courts will
not interfere with public officers in the
discharge of any duty involving the
exercise of judgment or discretion,
But this rule presupposes the existence
of good faith, and relates to acts done