Rice v. The Board of Canvassers of Coffey County
| Decision Date | 07 January 1893 |
| Citation | 32 P. 134,50 Kan. 144 |
| Parties | O. M. RICE v. THE BOARD OF CANVASSERS OF COFFEY COUNTY et al |
| Court | Kansas Supreme Court |
Decided January, 1893.
Original Proceeding in Mandamus.ACTION by O. M. Rice against the Board of Canvassers of Coffey County and others, to compel defendants to recanvass the returns for member of the legislature, and send a corrected abstract of the votes cast for representative in Coffey county. Writ refused. The facts are stated in the opinion filed January 7, 1893.
W. C Webb, G. C. Clemens, and Frank Doster, for plaintiff.
T. F Garver, S. R. Peters, Chester I. Long, and F. B. Dawes, for defendants.
This is a proceeding in mandamus brought originally in this court by O. M. Rice against the board of canvassers and the county clerk of Coffey county. He asks for a writ compelling them to reconvene and recanvass the returns of the township of Avon, Coffey county, for member of the legislature; to correct an alleged error in the first canvass; and to certify and send to the secretary of state a corrected abstract of the votes cast for representative in Coffey county. The case was tried on an application for a peremptory writ, after notice had been given to the defendants.
It appears that O. M. Rice and T. C. Ballinger were candidates for representative from Coffey county at the late election, and that when the county canvassing board met and canvassed the result of that election, they found and declared that each had received 1,826 votes, and a certified abstract of that result was sent to the secretary of state. Since that time the state board of canvassers canvassed the returns from that county and found that there was a tie, and, having settled it as the statute prescribed, awarded the certificate to Ballinger. The plaintiff alleges that the canvassing board of the county refused to canvass all the votes returned for him in Avon township; that by the certified returns from that township he received 96 votes, and Ballinger received 68 votes; but that the board determined and declared that Rice received only 95 votes. He avers that if all bad been counted it would have appeared that he had a total of 1,827 votes, one more than Ballinger, and that, as a true and correct abstract of the votes had not been sent to the secretary of state, the state board of canvassers could not declare him to be elected nor award him the certificate to which he was entitled. The poll books of Avon township were presented to the court, and from them it appears that the footings and statement made in the certificate of the judges and clerks of election show that Rice received 96 votes in that township; but it also appears by the enumeration or tallies entered on the tally sheet of the poll books, as the ballots were counted by the judges, that he received only 95 votes. When the canvassers met they decided that they would consider the enumeration of the votes upon the tally sheet, in determining who was elected to the various offices; and this was in accordance with a practice which had long prevailed in that county. What is called the "tally sheet," is bound in and as a part of the poll book. On the left-hand side of the sheet are printed the names of the officers voted for. To the right of the list of candidates the sheet is ruled in squares large enough to contain five marks, or tallies. The clerks entered a mark or tally opposite the name of each candidate for each vote read and counted for him by the judges. On the same sheet is a certificate made by the judges and clerks, in which the total number of votes understood to be received by each candidate was written; and all included in a cover, marked "poll book."
A meager description of the poll books and forms provided for tallying the ballots as they are taken from the ballot box and read is sufficient. Substantially the same form of poll books and tally sheets has been in use for many years, if not from the organization of the state, and almost every elector is familiar with them. To the right of the name of Rice, votes were entered in 20 columns or spaces. In each of 18 of them, there were five tally marks entered, by making four straight marks, and then by drawing a diagonal one across them. In one space, not far from the middle of the line of spaces, there were only four marks, with no line across them; and in the twentieth space there was but one mark. It appears that the judges and clerks assumed that there were five tallies in each space, except in the twentieth, and so, without otherwise counting them, they decided that 19 spaces contained 95 votes; and these added to the one in the twentieth space made up the 96 votes, and they made their footing and certificate accordingly. As a matter of fact, only 95 tallies were entered on the tally sheet, and it was from the tally sheet alone that the judges and clerks determined the total number of votes that were cast, and in the manner described. One of the poll books, including this tally sheet on which they made their certificate and return, was sent by them to the county clerk's office, and the duplicate was retained by the township trustee. We have examined both of them, and find that they correspond exactly in the record of Rice's vote. With this return before it, the county board determined that Rice received but 95 votes, and made its canvass accordingly. From the poll books and the evidence submitted to us, it appears reasonably certain that only 95 votes were cast for Rice in Avon township. No objection against the count was made by him at the time, nor when the canvass was made by the state board, weeks afterward; nor was there any protest from him until the commencement of this proceeding, long after the final adjournment of the state board of canvassers.
It is urged that the tally marks constitute no part of the return and cannot be used in determining the number of votes. Of course the board must make its determination from the legal returns made by the judges and clerks, and cannot exercise the function of a contest court. It is argued, however, in behalf of the defendants, that the statute contemplates there shall be just such an enumeration or tallying of the votes as the count proceeds as was made in this instance. (Gen. Stat. of 1889, PP 2679, 2680, 2684, 2687.) It is also contended that such tally sheets have been made and...
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