Clark v. Montgomery County Com'rs

• Decision Date: 07 March 1885
• Citation: 6 P. 311,33 Kan. 202
• Parties: E. B. CLARK v. THE BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY
• Court: Kansas Supreme Court

6 P. 311

33 Kan. 202

E. B. CLARK v. THE BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY

Supreme Court of Kansas

March 7, 1885

Error from Montgomery District Court.

PROCEEDING by E. B. Clark, an elector of Montgomery county, for a temporary injunction to restrain the county board of said county from issuing certain bonds. November 29, 1884, Hon Geo. Chandler, judge of the district court, refused to issue the injunction. This refusal Clark assigns as error, and brings the case here. The facts appear in the opinion.

Judgment reversed.

Kirkpatrick & Vestal, for plaintiff in error.

Dunkin & Chandler, and J. D. McCue, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

At an election held on November 4, 1884, the electors of Montgomery county voted upon a proposition to issue fifty thousand dollars in the bonds of that county, to be used in the building of a court house and jail. When the vote was canvassed the board of canvassers found that there had been 2,683 votes cast in favor of the proposition, and 2,652 against it, and accordingly declared that the proposition had been adopted. E. B. Clark, who is an elector of that county, for the purpose of contesting that election instituted this proceeding, and upon his verified petition and affidavits, applied to the judge of the district court for a temporary injunction restraining the board of county commissioners from issuing the bonds declared by them to have been voted. The application was refused, and the plaintiff assigns the refusal as error. The controversy in this case arises over 76 ballots cast in two election precincts, which the plaintiff claims should have been counted against the proposition, but which the election boards refused to count, because of their informality.

It will be noticed that the vote was taken upon the day of the general election. The ballots rejected by the election boards had printed thereon and at the bottom of the ballots and underneath the names of the candidates for national, state and county officers, the words "For the bonds." A pencil-line had been drawn through these words, and immediately beneath the words so marked was written in pencil the word "Against." The order of the board of county commissioners submitting the question to the electors of the county, provided that all those voting in favor of the proposition should have written or printed on their ballots the words "For the bonds," and those voting against the proposition should have written or printed on their ballots the words "Against the bonds." If the rejected ballots had been counted as negative votes, the proposition was defeated by a majority of forty-five votes.

On the hearing before the district judge it was agreed that the only question to be decided was, whether the ballots which were cast as above stated should be counted against the proposition; and this is the question submitted to us. The leading consideration, and the one on which the decision of the case must turn, is, what was the will of the electors casting these ballots? In determining the intention of voters, election boards as well as courts should be guided by the language of the ballots cast, interpreted in the light of the circumstances surrounding the election. If the terms used by the voter upon his ballot are so vague and uncertain as not to disclose his...