Blue v. Peter

• Decision Date: 05 January 1889
• Citation: 40 Kan. 701,20 P. 442
• Parties: B. F. BLUE v. HENRY PETER
• Court: Kansas Supreme Court

20 P. 442

40 Kan. 701

B. F. BLUE v. HENRY PETER

Supreme Court of Kansas

January 5, 1889

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Error from Harper District Court.

AT the general election held in Harper county on November 8, 1887, the plaintiff in error, B. F. Blue, and the defendant in error, Henry Peter, were the opposing and only candidates for the office of register of deeds. The board of county commissioners of Harper county at the time prescribed by law made a canvass of the election returns, found that there were 1,569 votes cast for Blue and 1,522 for Peter, and determined and declared that Blue, having received the highest number of votes, was duly elected register of deeds for the ensuing term; and the county clerk of said county issued a certificate of election to him. On the 28th day of the same month, Peter filed a statement of his intention to contest the election of Blue. On the next day, Hon. A. H. Adams, probate judge of Harper county, selected H. T. Purcell and Robt. P. McColloch to act with him as judges of a contest court for the trial of the case; the trial was commenced on the 21st of December, 1887, and continued until January 20, 1888. The court found and adjudged that Henry Peter, the contestor, was elected to the office of register of deeds, and rendered judgment in his favor. Blue excepted to many of the rulings, and to the judgment of the contest court, and by petition in error carried the cause to the district court, where it was affirmed. This action is brought to reverse the judgment of the district court. The findings of fact and conclusions of law of the contest court are inserted here in full:

"FINDINGS OF FACT.

"1. On the evening of the 7th of November, 1887, W. W. Kettleman was approached by George King, trustee of Harper township and requested by said King to act as one of the judges of election to be held in Harper City and township on November 8, 1887. On the afternoon of November 7, 1887, F. D. Schermerhorn was approached by the said George King, trustee of Harper township, and spoken to by said King in regard to acting as one of the judges of the election to be held in said city and township of Harper on said 8th day of November, 1887. On the morning of the 8th day of November, 1887, G. E. Maxwell is seen by H. C. Maxwell and informed that he is wanted to act as one of the judges of said election. Thus were the judges selected. B. E. Crosslin, an employe of L. H. Hutchinson, and C. B. Collins, acted as clerks. The judges and clerks were first sworn by J. G. Washbon, police judge, and afterward by J. J. Merrick, justice of the peace.

"2. The election was held in a room in the Glenn House, in the city of Harper, said room being occupied by F. D. Schermerhorn as an office. The window at which the ballots were received was raised, and a board was placed beneath so as to partially obstruct the view from the street. An opening ten inches wide was left at the west end of the board. Through this opening the ballots were received. No challenges were made, no questions asked, and no ballots refused by the judges during the entire day. The polls were kept open until twenty minutes of seven o'clock P. M. Immediately after the close of the polls, George King, trustee of said Harper township, was requested by all the members of said election board to be present, and remained with them all night, and until the ballots were counted and the result declared on the morning of November 9, 1887.

"3. A few days prior to the 8th day of November, 1887, W. M. Drewer, a citizen of Harper county, Kansas, and railroad master on the Santa Fe railroad west of Wellington, went to Wellington, and in an interview with J. G. Meenan, boss of the extra gang, comprising about 75 men, in the yards of the S. K. railroad at Wellington, Sumner county, informed Meenan that he wanted about 30 men to go from Wellington, Sumner county, Kansas, to Harper City, Harper county, Kansas, for the purpose of having them vote at the election to be held in said city of Harper on November 8, 1887. A day or two later W. M. Drewer interviewed J. G. Meenan at Wellington again. This time he is accompanied by L. H. Hutchinson, a grain merchant of the city of Harper. Hutchinson tells Meenan that he, Hutchinson, wants about 30 men to go from Wellington to Harper to vote at the election to be held in said city of Harper on the 8th day of November, 1887; he, Hutchinson, promising that the men should be paid for the time lost in laying off that day, and that their expenses to Harper and back should be paid. In pursuance of this offer W. M. Drewer gives to the said Meenan, at the Arlington hotel in Wellington, the sum of $ 100. Out of this $ 100, Meenan gives $ 75 to George Ingram, Joseph Cristler, Lon Martin and McNaught, and the balance of $ 25 he paid to William Williams, John Massey, Roy Hankler, W. A. Myers, Robert Everly and eleven others. L. H. Hutchinson is in Wellington on the morning of November 8th, 1887. A train leaves Wellington for Harper early the same morning. Meenan goes to Harper on that train. In Harper he sees McNaught, Lon Martin, Joseph Cristler, George Ingram, John Massey, Isaac Cristler, William Williams and L. H. Hutchinson. Twenty-two of the extra gang go to Harper on the said 8th day of November, 1887. Near the depot in Harper City they are met by Mr. Murphy, who introduces himself as the man appointed to receive them, and by him conducted by a back way into the rear end of L. H. Hutchinson's wareroom. Here they are furnished with all the liquor and cigars they desire. Tickets are handed them by the said Murphy, and then in squads of two, three and four they are conducted to the polling-place by Murphy. When the sidewalk at the polling-place is reached Murphy precedes the men a few steps, and when he arrives directly in front of the opening through which the ballots are received raises his hat, passes on, and immediately after the men from Wellington walk to the opening, hand in their ballots and either give their own or an assumed name, and walk away, no questions being asked them by the judges within.

"4. After the filing of the statement of intention to contest said election, and a few days prior to the time of taking depositions at Wellington, Sumner county, Kansas, to be used in the trial of this case, L. H. Hutchinson and W. W. Clark, both residents of Harper City, Harper county, Kansas, go to Wellington, Sumner county, Kansas, and calling together the men of the extra gang who had gone from Wellington to Harper to vote on November 8, 1887, state that they, Hutchinson and Clark, desire to get them away from Wellington so their depositions could not be taken. To this end Hutchinson and Clark offer to pay the fare of the men to Kansas City. The offer is rejected. Hutchinson and Clark then offer to give the single men $ 10 each and the married men $ 20 each to go to Kansas City and remain until after the time for taking their depositions has elapsed. This offer is also rejected, and the men remain in Wellington.

"5. The judges of said election caused and procured the clerks of said election to write upon the poll-books of said election the names of 112 fictitious persons, and the judges placed or caused to be placed 112 tickets or ballots in the ballot-box of said election, to correspond with the 112 fictitious names placed upon said poll-books by said clerks.

"6. The judges of said election caused and procured the clerks of said election to write upon the poll-books of said election the names of 47 persons who were either residents of said Harper City or township, but who were absent from said city and township on said 8th day of November, 1887; or who had at one time resided in said city or township of Harper, but who had removed from said city or township of Harper prior to the 8th day of November, 1887; or who were residents of said city or township of Harper, but who did not vote on said 8th day of November, 1887; or who, being residents of said Harper City or township, were permitted by said judges to vote a second time, or whose names were placed upon the poll-books a second time by the clerks of said election under the direction of said judges; and said judges placed or caused to be placed 47 tickets or ballots in the ballot-box of said election, to correspond with the 47 names so placed upon said poll-books.

"7. The judges of said election received the tickets or ballots of 42 illegal voters and placed or caused to be placed said 42 illegal ballots in the ballot-box of said election, and caused or procured the clerks of said election to write the names of 42 persons upon said poll-books to correspond to the said 42 illegal ballots or votes so received by said judges.

"8. The poll-book returned from Harper City and township purports to show that 612 votes were cast in said precinct. It also purports to show that of this number 607 voters recorded their choice in favor of said B. F. Blue for said office of register of deeds, and one voter his choice in favor of Henry Peter for said office. Outside of the poll-book there is no evidence to show how many voted or how many were legal voters. Some of the witnesses have testified that they voted there, but there is no evidence to show for whom they voted.

"9. On the 8th day of November, 1887, the township of Lake Harper county, Kansas, constituted one election precinct. Prior to the 8th day of November, 1887, the trustee and one of the justices of the peace of said township issued a proclamation establishing two polling-places in said election precinct. Two polling-places were opened in said precinct on said 8th day of ...