Coates v. Camp

• Decision Date: 27 September 1946
• Docket Number: 36758.
• Citation: 161 Kan. 732,173 P.2d 266
• Parties: COATES v. CAMP, County Commissioner, et al.
• Court: Kansas Supreme Court

173 P.2d 266

161 Kan. 732

COATES v. CAMP, County Commissioner, et al.

No. 36758.

Supreme Court of Kansas

September 27, 1946

Appeal from District Court, Shawnee County, Division No. 1; C. A Magaw, Judge.

Action by William P. Coates against Ed J. Camp, as County Commissioner of Shawnee County, Kan., and others, to enjoin the issuance of a certificate of nomination to plaintiff's opponent in primary election and to require issuance of such certificate to plaintiff. From a judgment sustaining a demurrer to the petition and a motion to dismiss the action and to dissolve restraining orders, plaintiff appeals, and defendants move to dismiss the appeal.

Motion to dismiss appeal denied, and judgment sustained in part and reversed in part, with directions.

Syllabus by the Court.

1. A candidate, defeated for party nomination for office at a primary election, has, under the situation stated in this opinion, a special and peculiar interest sufficient to entitle him to bring action to test the eligibility of the successful candidate to hold the office, if elected, or to have his name printed on the general election ballot as such nominee, and to test his own right to be certified as such nominee.

2. The duties of a canvassing board in determining the persons who have received the greatest number of votes for nomination for the various offices in a primary election are purely ministerial and their performance may not be enjoined.

3. A person who holds the office of sheriff during a part or all of two consecutive terms is ineligible, under Article 4, Sec 2 of the constitution of Kansas, to hold the office for the next succeeding term.

4. The provisions of Article 4, Sec. 2 of the constitution may not be evaded by a sheriff through the device of resigning near the close of a term.

5. The nomination at a primary election of a candidate who, if elected, would be ineligible under the constitution to hold the office, is inoperative within the meaning of sec. 25-307, G.S.1935.

6. A candidate whose nomination is so held to be inoperative is not entitled to have his name printed upon the general election ballot as such nominee.

7. The nomination at a primary election of a party nominee who, if elected, would be ineligible under the constitution to hold the office, is a nullity as far as such nomination is concerned, and the 'runner-up' is not entitled to a certificate of nomination for such office.

8. The primary purpose of chapter 355, Laws of 1941, 73-213 to 73-219, G.S.1945 Supp., is to protect the interests of public officers called into the military service.

9. One who is appointed, under the provisions of said chapter 355, Laws of 1941, to fill the temporary vacancy created by the absence of an officer who has been inducted into the military service, and who qualifies and performs the duties of the office, 'holds' the office within the meaning of Article 4, Sec. 2 of the constitution.

10. In a proceeding by the 'runner-up' for party nomination for sheriff in a primary election to enjoin the canvassing board and the county clerk from certifying the nomination of the defendant, and to require that a certificate of nomination be issued to the plaintiff for such nomination, the record discloses that the defendant served as sheriff from October 23, 1943, to December 4, 1944, when he resigned and was immediately appointed undersheriff; that he served as undersheriff from December 4, 1944, until January 8, 1945, when he again assumed the office of sheriff for the two-year term to which he had been elected in November 1944; that at the primary election in August, 1946, he was again a candidate for the Republican nomination for sheriff for the two-year term beginning in January, 1947, and was declared by the canvassing board to have received the most votes for such nomination. The defendant county officials, in their answer, prayed that they be advised in the matter by the court.

Held: That under the facts and circumstances set out in the opinion and in conformity with the rules heretofore set out in this syllabus; (a) The plaintiff was entitled to bring the action; (b) the question of eligibility of the defendant could properly be determined in the action; (c) the defendant is ineligible to hold the office for the term beginning in January, 1947; (d) the nomination of the defendant is inoperative and he is not entitled to have his name printed on the general election ballot as such nominee; (e) the plaintiff is not entitled, as a result of such primary election, to be certified as the party nominee; (f) the nomination of the defendant being inoperative, a vacancy was thereby created in the party nomination for such office, such vacancy to be filled in the manner provided by law.

Edward Rooney, of Topeka (Richard R. Funk, Jacob Dickinson, Peter Caldwell, and David Prager, all of Topeka, on the brief), for appellant.

Barton E. Griffith, of Topeka, for appellee Elburn M. Beal.

Allen Meyers, of Topeka, for appellees County Commissioners as Canvassing Board and County Clerk.

HOCH Justice.

The principal questions here presented are: First, is the appellee, Elburn M. Beal, who was a candidate for the Republican nomination for sheriff of Shawnee County at the recent August primary, eligible to hold the office during the regular term beginning in January, 1947, and entitled to have his name printed upon the ballot as such nominee; second, if Beal is not so eligible and so entitled, is Coates, the appellant, entitled to be certified as the Republican nominee for such term as sheriff? Procedural questions are whether Coates is entitled to bring the action, and whether the substantive issues above stated may properly be determined in this proceeding.

Beal was duly appointed sheriff by the Governor to fill the unexpired term of Sheriff William Frey who had been inducted into the military service of the United States. He took office on October 23, 1943, and continued to hold the office during the remainder of 1943 and most of 1944 and at the election in November, 1944, was elected for the regular two-year term beginning on January 8, 1945. On December 4, 1944, he resigned, and Gerald Kreipe, the undersheriff, was appointed sheriff and Kreipe immediately appointed Beal as undersheriff. As undersheriff, Beal continued to occupy the sheriff's living quarters, and on January 8, 1945, again assumed the office of sheriff for the term for which he had been elected and at once named Kreipe as undersheriff.

At the primary election in August, 1946, Beal and Coates were candidates for the Republican nomination for the regular term beginning in January, 1947.

Upon canvass of the votes it was announced by the county commissioners acting in their capacity as canvassing board--hereinafter referred to as the Board--that Beal had received the most votes and would be certified as the Republican nominee. Whereupon action was brought in the district court by Coates, the 'runner-up,' to enjoin the issuance of a certificate of nomination to Beal and to require the Board to issue such certificate to him. Beal and the county clerk, Hal Rager, were also named as defendants. The ground upon which the petition was based was that Beal is ineligible under the constitution of the state to hold the office for the term beginning in January, 1947; that being so ineligible, his nomination is invalid and void, that the votes cast for him are not entitled to be counted, and that because of such invalidity, Coates is entitled to the certificate of nomination. The provision of the constitution relied upon by Coates is Article 4, Sec. 2, which provides:

'* * * No person shall hold the office of sheriff * * * for more than two consecutive terms.'

Restraining order was issued and the matter set down for hearing.

The Board and the county clerk filed an answer in which they averred that the only duty they had to perform in the matter is a ministerial one, that the only function of the Board was to canvass the votes and determine which one of the candidates received the highest number of votes, and to make an abstract of the votes cast for the various candidates, and that it is the statutory duty of the clerk to make out a certificate of nomination for each person receiving the most votes for the respective offices, and to deliver such certificate to each successful candidate upon his making application therefor. The Board and the clerk further averred that they had no interest or responsibility in determining the eligibility of Beal to be a candidate and that their duties in the matter are entirely ministerial, and they prayed that the court advise and instruct them in the matter.

Defendant Beal filed a demurrer to the petition on the principal grounds that the plaintiff had no legal capacity to bring the action, that the court was without jurisdiction of the defendants, and that the petition did not state a cause of action. Beal also filed a motion to dismiss the action and to dissolve the restraining orders, on the grounds that the Board had no jurisdiction except to determine what candidate received the greatest number of votes; that it had determined that Beal had received the most votes, and that the Board could not be enjoined from performing its purely ministerial duties; that the Board had completed its statutory duties, and could not be required to reconvene or to announce any determination other than the one already made; that the county clerk had no duty in the matter except to accept the determination of the Board. to attest the same when reduced to writing and signed by the Board, and to place the name of Beal on the general election ballot; that injunctive relief is not a proper remedy; that the plaintiff has plain and adequate...