The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-12-25

our supreme court, as old as the state
| itself and heretofore unbroken in the
| history of the state. The WabaunSee
| County case was decided against Mr..
Capper, although a decision in his IA
vor might have been based upon the
same logic by which the Bourbon
County case was decided for him. 1t
has always been held that simple mis-
takes could only be corrected In con-
test courts and the underlying reason
for this rule was that it was not pro-
ductive of justice to correct one mis-
take unless all similar mistakes might
be corrected, and a further reason lay
in the fact that if the election boards
or canvassing boards might reconvene,
and go over the work that they had
already considered, then every close
election would be followed by scram-
BILE of election boards and canvassing
boards to review their work in the in
terest of one candidate or another,
and thus be productive of corruption
and fraud.
Result of Decisions.
mo better illustration can be given
of the soundness of the old rule than
the situation which confronted both
parties the morning after the decision
in the Bourbon County case. Both
sides knew just how many votes were
in controversy on account of mistakes
made by canvassing boards, and both
sides were alarmed at what might
the state should reconvene upon the
pretense of counting mistakes. for if
the court should order board to re-
convene then that board or any other
board could reconvene on it's own mo-
ton. This brought about the stipula-
ton which afterwards became history
Mr.. Stone and Mr.. McDermott, repre-
seuting Mr.. Capper, and Mr.. Dean ana
Mr.. Martin, representing Mr.. Hodges
met and talked the situation over
frankly and freely, and fully discussed
the danger of confusion, fraud, and
corruption that might result on ac-
count of the Bourbon county decision.
The poll books in the custody of the
county clerks are not sealed, and they
were accessible to many people Tai
lies might be added or figures changed
and then a demand that the board
meet and correct mistakes. Mr. Cap
per understood this situation and he
directed Mr.. Stone to join with the
attorneys for Mr.. Hodges in the stipu-
lation that was made and it is quite
sure that this stipulation averted a
scandal that would heve disgraced the
election and the state.
Criticism of Supreme Court.
I'm view of the fact that the SUI
preme court had gone further in sup
port of the contentious of Mr.. Capper
than any former decisions of the court
would warrant, 1t IS very strange that
many supporters of Mr.. Capper have
taken occasion to criticiSe the court
on account of the decision rendered.
While 1 believe that the court made
mistake in the Bourbon county case,
feel just as sure as one can be of any
thing that the court acted in the very
best of good faith and rendered that
decision in an honest effort to do JUS
tice and without any intention to
establish a rule that would not be
good law in any similar case. Neither
am I disposed to criticiSe the mem
bers of the court that dissented in the
Wabaunsee county case: They no
doubt honestly believed that it would
be the better rule to permit election
boards to reconvene whenever and as
often as they might wish; go to the
county seat and procure the ballots
and break open the seals and recount
them; and make new returns and con-
tinue in this way until all certificates
of election had been issued.
Was Capper Elected?
"This question must be answered in
as a recount. of all the votes is had
and a majority for him shown. The
particular mistake upon which he re-
lies may have injured him more than
Mr. Hodges, but this 1 doubt very
much. Nearly all of the Democrats
voted in the circle and nearly all of
the Taft Republicans did the same.
Many Of the Roosevelt electors voted
t. en- who really hoped to organize
a new party did not The circle voter
was the one who was likely to make !
the mistake complained of and it is
safe to say that a larger per cent of
the Hodges voters were circle voters
than were those who voted for Mr.. |
Capper. Any man who voted in the |
circle was in the same danger of hav- |
ing his vote thrown out as any other |
man who voted in the circle. The law
of probabilities would seem to indi- |
cate that Hodges lost more than Cap
per in the mistake of rejecting votes |
that were marked in the circle and |
opposite names on the same ballot.
Having engaged in contested cleo
ton cases every two years for the last |
sixteen years, I can readily under |
stand why Mr.. Capper declines to en- |
ter upon the work ana worry of such |
a struggle. But the law provides that |
any elector may institute such a con-
test, and if any considerable number
of Mr.. Capper's friends believe that |
he received the most votes it is their |
duty as good citizens to institute a
contest and thus determine whether
he was in fact elected