H. v. Lawrence

• Decision Date: 11 January 1908
• Docket Number: 15,683
• Citation: 77 Kan. 209,93 P. 602
• Parties: H. V. LAWRENCE v. A. C. WHEELER
• Court: Kansas Supreme Court

93 P. 602

77 Kan. 209

H. V. LAWRENCE v. A. C. WHEELER

No. 15,683

Supreme Court of Kansas

January 11, 1908

Decided January, 1908.

Error from Finney district court; CHARLES E. LOBDELL, judge pro tem.

SYLLABUS

SYLLABUS BY THE COURT.

ELECTIONS -- County Office -- Pleading Cause of Contest -- Demurrer. A general charge in the statement of the contestor of a county election of error and mistake by the boards of judges in designated precincts in counting the ballots and by the board of canvassers in declaring the result is sufficient as against an attack by demurrer, and is not void for indefiniteness.

A. M Harvey, and Albert Hoskinson, for plaintiff in error.

W. R Hopkins, and Richard J. Hopkins, for defendant in error.

OPINION

BURCH, J.:

H. V. Lawrence instituted a contest for the office of county treasurer of Finney county against A. C. Wheeler. His statement was sufficient unless it be with reference to the causes of contest. In that respect it reads as follows:

"Said contestor further states that the said A. C. Wheeler, contestee, was not legally and lawfully elected or chosen by a majority of the lawful votes cast at said election to be the county treasurer of Finney county, Kansas, for the following reasons, to wit:

"For errors and mistakes of the boards of judges of election at said election, so held in the various voting precincts, to wit, first, second and third wards in the city of Garden City, Sherlock, Macks, Huffmans, Plymell, Pierceville, Pleasant Valley, Knauston, Eminence and Ravanna, in counting the votes so cast at said election for the said office of county treasurer of Finney county, Kansas.

"For errors and mistakes of the board of county commissioners of Finney county, Kansas, acting as a board of canvassers of the votes cast at said election, in declaring the result of said election in favor of the said A. C. Wheeler, contestee, for the said office of county treasurer of Finney county, Kansas, at said election so held on the 6th day of November, 1906.

"That the boards of election judges in Pierceville and Macks precincts failed and neglected to account for or return to the county clerk of Finney county, Kansas, the number of ballots received by them from the said county clerk aforesaid prior to election.

"That the board of election judges in each of the aforesaid precincts failed to account for or return to the county clerk of Finney county, Kansas, the number of 'blank' ballots sealed up in an envelope, as required by law, or the 'void' ballots or the ballots 'objected to,' as required by law, enclosed in an envelope securely sealed and so marked and indorsed as clearly to disclose its contents; that in said precincts Pierceville and Macks all ballots not used, and all ballots spoiled by the voters while attempting to vote, were not returned by the boards of judges of election in said two above-named precincts to the county clerk of Finney county, Kansas, as required by law, the officer from whom all ballots were received.

"That the boards of election judges in said county, in the following precincts, to wit, first, second and third wards in the city of Garden City, Sherlock, Macks, Huffmans, Plymell, Pierceville, Pleasant Valley, Knauston, Eminence and Ravanna, failed to count for the contestor votes or ballots which were legally cast for him, and which were marked by said boards 'blank,' 'void,' and 'objected to,' and 'rejected.'

"That on account of the above-mentioned errors, mistakes and irregularities a correct count of said votes cast in Finney county, Kansas, on said 6th day of November, 1906, and a correct canvass of said votes, would affect the result of said election of county treasurer of Finney county, Kansas, and that a correct count of the votes cast at the said several voting precincts so cast would affect the result of said election for the office of county treasurer, and that a correct count of the votes cast at said election on November 6, 1906, in Finney county, Kansas, and a correct canvass of the votes so cast at said election, would result in the election of said H. V. Lawrence, contestor, to the office of county treasurer of Finney county, Kansas, at said election so held on the 6th day of November, 1906."

The contestee demurred to the statement, but the demurrer was overruled. The contestee then filed an answer, to which the contestor replied, and the contest court proceeded to count the ballots. Various ballots were not counted for the contestor which he claimed should have been counted for him, and various ballots were counted for the contestee to which the contestor objected. The ballots from two election precincts were not opened or counted. The contest court decided in favor of the contestee, and the contestor prosecuted proceedings in error in the district court. The district court declined to consider the principal errors alleged, on the ground the statement did not specify with sufficient particularity the causes of contest, thereby virtually sustaining the demurrer which the contest court had overruled. The contestor prosecutes error in this court.

The district court adopted the rigorous rule approved by some courts and favored by some text-writers which requires that the facts constituting the cause of contest must be pleaded in detail, with particularity and precision, or the statement will not authorize the contest court to proceed or support a judgment in the contestor's favor. This rule rests in part upon the public policy which forbids speculative and groundless contests, and is supported by the argument that if the contestor know of causes of contest he can recite the facts, while if he do not know it is better that he should not be allowed to interfere.

The question is one of statutory interpretation, the legislature having indicated what the public policy of this state demands by the procedure which it has prescribed. The remedy, so far as it relates to elections to county offices, is quite summary in character, and is designed to secure a speedy determination of the contest. The tribunal having jurisdiction to try the contest is an inferior one having special and limited powers, and need not be composed of persons who are learned in the law or familiar with the arbitrary rules of pleadings in civil actions. The proceeding is not one for the benefit of candidates alone. It may be instituted by any elector of the county, the purpose being that the people's choice, legally registered, may be made to prevail upon the complaint of any one of them. The contestor's statement is "a written statement of his intention to contest the election," and must set forth "the particular causes of contest." (Gen. Stat. 1901, § 2659.) The statute names causes for contest as follow:

"First, for malconduct, fraud or corruption on the part of the judges of election in any township, or of any of the boards of canvassers, or on the part of any member of either of those boards.

"Second, when the contestee was not eligible to the office at the time of the election.

"Third, when the contestee has been convicted of an infamous crime before the election, and the judgment has not been reversed, annulled, or set aside, nor the contestee pardoned, at the time of the election.

"Fourth, when the contestee has given or offered any elector or any judge, clerk or canvasser of the election any bribe or reward, in money, property or thing of value, for the purpose of procuring his election.

"Fifth, when illegal votes have been received, or legal votes rejected, at the polls, sufficient to change the result.

"Sixth, for any error or mistake in any of the boards of judges or canvassers in counting or declaring the result of the election, if the error or mistake would affect the result.

"Seventh, for any other cause (though not enumerated above) which shows that another was the legally elected person." (Gen. Stat. 1901, § 2655.)

In framing the law the legislature considered specially the subject of certainty in stating causes of contest, but went no further than to make the following requirement:

"When the reception of illegal or the rejection of legal votes is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, with the township where they voted or offered to vote, shall be set forth in...