The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-11-25
Temporary Restraining Order
Issued by the Court.
AGAINST CANVASSING BOARD
1t Cannot Act or Adjourn Till
Court Hears Evidence.
Test of Wabaunsee and BOur-
bon County Recount Cases.

All morning and portion of
the afternoon, the Kansas Su-
preme court listened to arguments
in the mandamus suits brought last
week on behalf of Arthur Capper, Re-
publican nominee for governor. The
two suits were combined following the
action of the court this morning which
issued an order restraining the state
canvassing board from adjourning sine
die, completing the canvass of the re-
turns or issuing a certificate to either
candidate for governor. By consent of
counsel for both Hodges and Capper,
the actions were Joined and the court
granted three hours for arguments in
the two cases.
In one suit attorneys for Capper
sought by a writ of nnandamus to COM
pei the county commissioners and cleo
ton board in Wabaunsee county, or
in certain precincts therein, to recon
vere and to count certain ballots al
legged to have been wrongfully reject
ed. No claim of fraud or deception was
made in this suit further than that at
torneys for the Topeka publisher be-
lieved that not less than 20 ballots
which should have been counted were
thrown out by the election boards in
two precincts in Wabaunsee county.
By a similar process, the Capper law
yers sought to compel the county COM
missioners of Bourbon county to hold a
special session and to correct errors al
legged to have been made in the returns
They claimed that in certain precincts
in Bourbon county that the election
boards tailed the straight ballots with
the mixed ballots, and again made a
separate accounting for the straight
vote. This action, it is contended, gave
Hodges an advantage of Al votes in the
county. 1t was also claimed that the
Bourbon county board declined and re-
fused to re-convene, and that an order
of the court was necessary to compel
a special session.
Contention of Hodges Attorneys.
Attorneys for Hodges maintained
that the supreme court had no legal
right to exercise the use of a writ of
mandamus in these cases. They cited
numerous court decisions and con-
tended at length that the procedure
was both irregular and without prece-
dent. 1t was claimed by them that
the relief sought by Cappers through
a writ of mandamus was the relief to
be gained through a contest procedure
and that the court was not vested with
the power to step behind the action
of the election boards or the canvass
ing boards and order either a recount |
or a special session after these boards |
had previously expressed an opinion |
as to the legality of the vote in their |
community. To bear out their con-
tention on this claim, the Hodges |
forces cited many legal opinions. They |
showed that the Kansas supreme court |
had been almost unanimous in its de- |
cisions that the work of the canvass |
ing board was final and that no pro- |
cess of law could order it reconsider /
it's work. They read from the su- |
preme court decisions which made it |
clear and plain that the decision of |
the election board on the legality of |
q ballot was final and decisive until |
that opinion had been reversed by ac-
ton of a contest court.
And on the other hand Capper at
-orneys were just as ardent in pro-
claiming that the court could give re-
lief through the issuance of a writ.
Both sides were loaded with legal !
opinions and the supreme court spent :
a busy three hours listening to the
arguments.
Canvassing Board Took Recess.
Early in the morning session the
court had issued a restrain
ng order which blocked the proceed
ngs of the state canvassing board.
This board was to have met this morn
ng and canvassed the returns from
he various counties and awarded GER
ificates of election to the men who
lad received the largest votes on the
ace of the returns. But the supreme
:ourt blocked this action. Through
IN order sent to members of the
BOARD, the canVasserS We're eStOpped
rom completing the canvass of the
'eturns, were restrained from issuing
certificate of election to either
candidate and were de-
lied the right to adjourn sine die at
he conclusion of their session. So
his morning the board spent rather
istless three hours. At noon they
ook a recess until tomorrow, hoping
hat the court would exercise un-
usual haste in the disposal of the
,ase and that the order for adjourned |
SESSIONS would not be enforced
through the winter months. Not un-
il the present hearings are disposed
If will the supreme court issue a
econd order permitting the canvass
ng board to complete its work and
o issue a certificate of election
,ither to Hodges or Capper.
At the session of the supreme
.ourt today Attorneys Ferry, Doran
Z Dean, Hugh P. Farrelly of Cha
lute, County Attorney Arthur Schmitz
# Wabaunsee county and Major A
Il. Harvey of Topeka appeared as
for the Hodges interests. Con-
FRESHMAN Fred S. Jackson and the
aw firm of Stone & McDermott rep
esented Arthur Capper. Arguments
oday were based on a motion of
lodges counsel which filed a motion
o Quash.