Anthony v. Burrow

• Decision Date: 12 April 1904
• Docket Number: 8,193.
• Citation: 129 F. 783
• Parties: ANTHONY v. BURROW et al.
• Court: U.S. District Court — District of Kansas

129 F. 783

ANTHONY v. BURROW et al.

No. 8,193.

United States Circuit Court, D. Kansas, First Division.

April 12, 1904

A. E Crane and Hite & Nichols, for complainant.

C. C Coleman, Atty. Gen., Eugene Hagan, and J. G. Slonecker, for defendants.

POLLOCK District Judge.

This court is asked to grant a temporary restraining order against defendants upon the fact of the bill of complaint filed herein. The controversy arises from political complications now existing in the First Congressional District of this state between two factions of the Republican Party. The real question of merit though to be involved and sought to have determined here is whether complainant or one Charles Curtis is the regular nominee of the Republican Party in the First Congressional District of this state for the office of representative in the Congress of the United States from said district.

The averments of the bill, in substance, are: That complainant possesses all of the qualifications requisite under the law for such office; that defendants are the Secretary, Auditor and Attorney General of the state of Kansas; that at a nominating convention, duly called, held at the city of Holton on the 2d day of February last, for the purpose of selecting a candidate of the Republican Party for said office from said district, to be voted for by the electors in said district at the coming November election, a split of said convention into two factions occurred, the one faction nominating complainant, and the other nominating said Charles Curtis; that, by reason of a conspiracy existing among certain of the adherents of the Curtis faction, numerous frauds were perpetrated in many of the counties comprising the district for the purpose of preventing complainant from securing such nomination, and that such conspiracy resulted in the sending to said convention contesting and fraudulent delegations from certain counties in said district; unlawfully pretending to represent said counties in said convention; that said congressional district, under the act of Congress of February 7, 1891, commonly known as the 'Reapportionment Act,' at the date of said convention was composed of the counties of Atchison, Brown, Doniphan, Nemaha, Jackson, Jefferson, Leavenworth, and Pottawatomie; that, notwithstanding the fact that under the provisions of said act of Congress said district was so composed of the counties named, the county of Shawnee, not included in or comprising a part of said district, selected a large number of delegates, who appeared in said convention as adherents of the Curtis faction, and, in furtherance of said conspiracy to defeat the nomination of complainant, were wrongfully seated in the convention which nominated said Charles Curtis; that the convention which pretended to select said Curtis as the party nominee of said party in said district was wholly irregular, void, and without authority of law, and did not include a majority of the delegates to said convention entitled under the law to participate therein, but, on the contrary, that complainant secured the vote of a majority of the delegates to such convention entitled by law to participate in the proceedings of said convention; that he is the lawful nominee of the party for said congressional district, and was so regularly declared at said convention, is entitled to a certificate of nomination under the laws of the state of Kansas, and that a majority of the qualified electors of said congressional district favor his election to said office, and, unless precluded therefrom by the unlawful combination and conspiracy of the defendants and others names in the bill, will be elected to such office at the coming November election. It is further averred in the bill that under the provisions of section 2703, Gen. St. Kan. 1901, which provides as follows:

'The certificate of nomination and nomination papers being so filed, and being in apparent conformity with this act, shall be deemed to be valid, unless objection thereto is duly made in writing within three days from the date said papers are filed with the proper officers. Such objections or other questions arising in relation thereto, in case of nominations of state officers or officers to be elected by the voters of a division less than a state and greater than a county, shall be considered by the Secretary of State, Auditory of State, and Attorney General, and a decision of a majority of these officers shall be final. Such objections or questions arising in the case of nominations for officers to be elected by the voters of a county or township shall be considered by the county clerk, clerk of the district court, and county attorney; and the decision of a majority of said officers shall be final. Objections or questions arising in the case of nominations for city or incorporated town officers shall be considered by the mayor and clerk, with whom one councilman, chosen by a majority of the councilmen, shall act; and the decision of a majority of such officers shall be final. In any case where objection is made, notice shall forthwith be given, by the officer with whom the objections are filed, to the candidates affected thereby, addressed to their places of residence as given in the nomination papers, and stating the time when, in no case to be more than five days, if a state or district officer, nor more than three days, if a county officer, and the place where such objections will be considered. All mandamus proceedings to compel an officer to certify and place upon the ballot any name or names, and all injunction proceedings asking that said officers be restrained from certifying and placing upon the ballot any name or names, must be commenced not less than twenty days before the election'-- The defendants constitute the members of the board provided for in such act to pass upon objections to the nomination of any candidate for a public office whose district comprises more than one county in the state; that defendants are the nominees of the Republican Party of the state for re-election to the official positions now respectively held by each; that in order to secure their renomination to the several offices now held by them, at the state convention of the Republican Party held in the city of Wichita on the 9th day of March last, defendants conspired and confederated with the adherents of the Curtis faction in the First Congressional District to defeat the nomination of complainant and to secure their own renomination; that under the provisions of the statute above quoted said Curtis has filed a certificate of nomination with such board, and complainant has been compelled to file objections thereto, and that said objections are now pending and undisposed of before said board. The complainant further avers that, as a part of the fraudulent conspiracy to wrong complainant, the defendants, as members of the tribunal or board provided in said act of the Legislature to hear and determine objections filed to the nomination of said Curtis, have collusively and fraudulently, without hearing the evidence, prejudged said objections against complainant and in favor of the legality of the nomination of said Charles Curtis. It is further alleged in the complaint that the power attempted to be conferred upon defendants constituting said board, by the terms of the said act of the Legislature, to hear and determine the objections to the nomination papers of said Curtis made by complainant, is judicial power, and that the attempt to confer such judicial power upon the Secretary, Auditor, and Attorney General of the state of Kansas was an unlawful exercise of legislative power, and that said act is, under the Constitution of the state of Kansas, void and of no effect. It is further alleged that defendants, acting as said board, unless restrained by order of this court, will determine the nomination papers of said Charles Curtis regular and valid, and the objections of complainant filed thereto insufficient under said void statutory provision, and that the defendant J. R. Burrow, as Secretary of the state of Kansas, will certify to the county clerks of the counties claimed by said Curtis to constitute the First Congressional District the name of said Charles Curtis as the regular party nominee for said office to be voted for by the electors of said district at the coming November election. The relief prayed is that an order of injunction may issue restraining defendants from acting as a tribunal or board under said void act of the Legislature to hear and determine the objections filed to the nomination of said Charles Curtis, and from determining who is the lawful nominee of the Republican Party for said office, and for an order directing the defendant J. R. Burrow, as Secretary of State, to forthwith certify to the several county clerks of the counties comprising the First Congressional District of the state of Kansas the name of complainant as the candidate of the Republican Party for member of the House of Representatives, to be placed upon the official ballot to be voted for at the coming November election, and general relief.

The first question naturally arising for determination is, does a federal court of equity have jurisdiction to hear and determine a controversy of such nature as that charged in the bill of complainant? The general jurisdiction of this court is invoked, first, on the ground that the controversy involves the jurisdictional amount, and arises under a law of the United States. That law is the act of Congress of February 7, 1891, commonly known as the 'Reapportionment Act,' which increased the number of representatives in Congress from this state to eight, and section 4 of which act provides:

'That in case of an increase in the number

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