Rosenthal v. The State Board of Canvassers of The State of Kansas

• Decision Date: 07 January 1893
• Citation: 50 Kan. 129,32 P. 129
• Parties: JOSEPH ROSENTHAL v. THE STATE BOARD OF CANVASSERS OF THE STATE OF KANSAS et al
• Court: Kansas Supreme Court

32 P. 129

50 Kan. 129

JOSEPH ROSENTHAL v. THE STATE BOARD OF CANVASSERS OF THE STATE OF KANSAS et al

Supreme Court of Kansas

January 7, 1893

Decided January, 1893.

Original Proceeding in Mandamus.

ACTION by Joseph Rosenthal against the State Board of Canvassers of the State of Kansas and others, to compel defendants to determine that he has received the highest number of votes cast in the 121st representative district for member of the house of representatives, and to issue a certificate therefor. Writ refused. All of the material facts appear in the opinion, filed January 7, 1893.

Peremptory writ of mandamus refused.

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.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action of mandamus to compel the board of state canvassers to convene and determine that Joseph Rosenthal has received the greatest number of votes cast in the 121st representative district for member of the house of representatives, and, after having declared him duly elected to that office, to issue to him a certificate. The facts in the case are as follows: Joseph Rosenthal, at the general election held on the 8th of November, 1892, being eligible thereto, was a candidate for the office of member of the house of representatives for the 121st district, being Haskell county, for the term commencing on the second Tuesday of January, 1893. A. W. Stubbs was also a candidate for the position at that election. Upon the face of the returns filed with W. H. Hussey, county clerk of Haskell county, after the election, as prescribed by the statute, Joseph Rosenthal received 156 votes, and A. W. Stubbs 123 only. Subsequently the board of county canvassers of Haskell county duly canvassed the returns in accordance with the face thereof, and such determination was reduced to writing, signed by the commissioners, and attested by the clerk, showing that Joseph Rosenthal had received the highest number of votes for the office of representative. Afterward, the county clerk made out and forwarded to the secretary of state an abstract of the votes for representative of Haskell county; but by accident or design, probably by gross negligence, he transposed in the abstract of votes the figures, so as to show that A. W. Stubbs received 156 votes, and Joseph Rosenthal 123 only. This abstract, certified to by Hussey as county clerk on the 12th day of November, 1892, was sealed up by him in an envelope, indorsed and addressed as required by law, and then transmitted to the secretary of state, who received and filed it in his office on the 16th day of November, 1892.

The state board of canvassers met for the purpose of canvassing the result of the election of November 8, 1892, as prescribed by the statute, on the 28th of November, 1892, and continued in session from day to day until December 1, 1892, when, having completed the canvass of all the returns on file with the secretary of state of the November election of 1892, it adjourned without day. The certified abstract of the votes given in Haskell county for representative was examined by the board, and thereon a statement was made by it, showing that A. W. Stubbs had received the greatest number of votes for representative, and was duly elected to that office. A certificate of such determination was ordered by the board, and was subsequently signed and issued. On the 19th day of December, 1892, about three weeks after the board of state canvassers had discharged its duties and adjourned without day, an envelope addressed to him was received by the secretary of state, without any indorsement to indicate that the same was an official communication, which contained what purported to be a correct abstract of the votes of Haskell county for representative, showing that Joseph Rosenthal received 156 votes, and A. W. Stubbs 123 only; and attached to the new or corrected returns was an affidavit of the county clerk stating that his former abstract was incorrect and erroneous, and also further stating that the new or supplemental returns were the correct abstract of the votes in Haskell county for representative, cast at the election on the 8th of November, 1892. At the time that the state board canvassed the abstract of the county clerk of the 12th of November, 1892, the members thereof had no notice from Joseph Rosenthal, or anyone else, that the returns were incorrect, or in any way defective. It seems to be conceded in this case that, in canvassing such returns, they acted in good faith. No misconduct is charged. After the supplemental returns were received by the secretary of state, on the 19th day of December, 1892, no request was made, before the commencement of this action, by Joseph Rosenthal, or anyone else, that the board should reconvene or examine the additional returns and affidavit of the county clerk.

It was urged upon the hearing of this case, upon the part of the defendants, that this court has no jurisdiction to inquire into the matters presented, because the constitution of the state ordains that "each house shall be judge of the elections, returns and qualifications of its own members." This court is not, in a proceeding of this kind, a contest court, and, of course, cannot go behind the returns and hear and determine whether Rosenthal or Stubbs received legal or illegal votes, or whether any frauds were committed at the election to the prejudice of either candidate. But this court has jurisdiction in mandamus to control, in certain cases, a canvassing board, whether that board be a township, a city, a county or a state canvassing board. In case the board refuses to issue a certificate of election to the person receiving the highest number of votes, upon a duly-authenticated abstract on file in the office of the secretary of state, and the relief by mandamus is withheld, the party aggrieved can have no remedy whatever to obtain his certificate. The person who has, upon the certified abstract, the greatest number of votes, is entitled to a certificate, and this cannot be awarded by the legislature, or either branch thereof. A certificate of election has some value. It is the prima facie evidence of the election of the person holding it to the office claimed. (The State v. Carney, 3 Kan. 88; The State, ex rel., v. Buckland, 23 id. 259; McCr. Elect., § 509; Cush. Leg. Ass., § 229.) Where a canvassing board wrongfully neglects and refuses to canvass returns which are regular in form, as a general rule, the courts may, by mandamus, compel the board to canvass and declare the result upon the face of the returns; and if a canvass has been wrongfully or improperly made, and the board has adjourned sine die, this court may compel it to reassemble and make a correct canvass of all the returns before it at the time of the first canvass. (Lewis v. Comm'rs of Marshall Co., 16 Kan. 102.)

If a person, upon the face of the returns, is entitled to the certificate of his election, except in special instances, where wrong or injustice will be done, the courts have power to reach the officers composing the delinquent board by writ of mandamus and compel them to action, and, if necessary, may compel them to reconvene and recanvass. Therefore, if there was nothing in this case but the question of jurisdiction of this court, the plaintiff would be entitled to the relief claimed by him. But it appears in this case, from the records of the board of state canvassers, that the board, on December 1, 1892, long before what purported to be corrected returns from Haskell county were filed with the secretary of state, had completed its labors, declared the result against the plaintiff, and finally adjourned. A writ of mandamus "may be issued to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust, or station." (Code, § 688.)

"A want of a 'plain and adequate' remedy in the ordinary course of the law is an...