Miller v. Clark

• Decision Date: 10 November 1900
• Citation: 62 P. 664,62 Kan. 278
• Parties: MILLER v. CLARK, Secretary of State.
• Court: Kansas Supreme Court

62 P. 664

62 Kan. 278

MILLER v. CLARK, Secretary of State.

Supreme Court of Kansas

November 10, 1900

Syllabus by the Court.

1. The special tribunal created by section 10 of chapter 129 of the Laws of 1897, known as the "Australian Ballot Law," consisting of the secretary of state, state auditor, and attorney general, is given power to inquire, after objections made, into the regularity of nomination papers filed with the secretary of state, and to consider other questions arising in relation thereto, upon notice to the candidates affected. The statute provides that a decision by a majority of said officers shall be final. Held, that after a hearing before such officers, and a finding made by them that one of two candidates for state senator was regularly nominated by a convention which divided into two parts, each naming a candidate, their decision will not be disturbed by the courts, in the absence of bad faith or arbitrary conduct showing wrongful acts amounting to fraud on the part of said officers.

2. When a right given is solely of legislative creation, and jurisdiction over it is limited to a particular tribunal, and specific remedies provided for its enforcement, the jurisdiction and remedy can be exercised and pursued only before such tribunal, and in the mode the statute requires.

3. A candidate cannot adopt the benefits conferred upon him by the Australian ballot law, and at the same time repudiate that part of the statute which has set up a board of officers with jurisdiction to determine finally the regularity of his nomination in case of a contest.

4. The case of Sims v. Daniels, 46 P. 952, 57 Kan. 552, so far as it denies to such tribunals final power to decide the questions referred to in the first paragraph of this syllabus, is overruled.

Within the time prescribed by law, M. G. Miller and F. W. Sponable each filed in the office of the secretary of state a certificate of nomination in due form for the office of senator of the Sixth senatorial district, which is composed of the counties of Miami and Johnson. Each of said candidates filed his objection with the secretary of state against the placing of the name of the other on the official ballot. There was a hearing had before the secretary of state auditor of state, and attorney general, and a decision made by them to the effect that the name of F. W. Sponable should be printed on the official ballot as the Republican candidate for senator in said district, and the name of M. G. Miller should be omitted there from. The questions which arose before the board of officers named related to the regularity of a nominating convention held on July 28, 1900, at Olathe Kan., for the purpose of nominating a Republican candidate for said office, each county (Miami and Johnson) being represented by 12 delegates. After the delegates met, a motion was made to adjourn to August 8th, which the chairman declared carried. The Miami county delegation cast 13 votes in favor of the motion to adjourn, and the chairman of the Johnson county delegation announced 12 votes against it. After this motion had been declared carried, the Miami county delegation, with the exception of one of their number, left the convention, and thereupon those remaining nominated F. W Sponable as the candidate for senator. On August 8th the 12 delegates from Miami county again met at Olathe pursuant to the adjournment, which they claimed had been regularly had, and with one other person, whom they recognized as a delegate from Miami county, proceeded to a permanent organization, and nominated M. G. Miller as the Republican candidate for state senator. This is an action of mandamus brought originally in this court to compel the secretary of state to certify the name of M. G. Miller to the county clerks of Miami and Johnson counties as the regularly nominated candidate. At the hearing the regularity of the nomination seemed to depend on the question whether the motion to adjourn made and declared carried on July 28th had been properly adopted by a majority of the legally qualified delegates authorized to sit in the convention. Other questions were discussed by counsel, but this one was considered the most important.

Application of M. G. Miller for a writ of mandamus against George A. Clark, secretary of state. Writ denied.

Parker & Hamilton, for plaintiff.

A. A. Godard, Atty. Gen., and J. S. West, Asst. Atty. Gen., for defendant.

OPINION

SMITH, J. (after stating the facts).

The first and important question to be considered is whether or not, under the facts as they have been made to appear, this court will enter into an investigation of the controverted matters presented involving the regularity of the proceedings had in the convention at Olathe, and decide which candidate was nominated according to the usages of the party and in conformity to the rules of parliamentary law applicable to deliberative bodies. The tribunal created by the statute consisting of the secretary of state, state auditor, and attorney general, after considering testimony offered by the interested candidates on both sides, made findings of fact, and reached the conclusion that Mr. Sponable had been regularly nominated. We are asked to overturn this decision, not upon any allegation or proof of fraud or arbitrary action upon the part of the secretary of state and his associates, but solely on the ground that their conclusion is based on a misapplication of the rules of parliamentary law, and disregard of usages and party customs which have long prevailed in the calling of political conventions and in the conduct of their proceedings. We are fully convinced that this court ought not to ignore the determination arrived at by the tribunal mentioned, which is endowed by law with power to pass on such questions as the relator has attempted to have us decide. Chapter 129 of the Laws of 1897, as amended by chapter 17 of the Special Session Laws of 1898, regulates the manner of holding elections, the nomination of candidates, and the printing and distribution of ballots. It provides a complete method unknown to the common law, and introduces what is known as the "Australian Ballot System," which, with slight modifications, has been adopted in nearly all the states of the Union. Section 10 of the act of 1897 provides that, after nomination papers have been filed in apparent conformity with the law, they shall be deemed valid unless objection is made in writing within three days thereafter. In the case of state officers or others to be elected by the voters of a division less than a state or greater than a county, the objections are to be passed upon by the secretary of state, auditor of state, and attorney general, and a decision of a majority of these officers is made final. It will be noted that the state officers named who are to act in such cases are not only vested with jurisdiction to pass on the regularity of the nomination papers, but additional power is given them to consider "other questions arising in relation thereto." Notice is required to be given to the candidates interested when the hearing will be had. It is plain that these officers are authorized under this statute to consider just such questions as we are now called on to decide, and in express language the legislature has...