Sharpless v. Buckles

• Decision Date: 06 December 1902
• Docket Number: 13,389
• Citation: 65 Kan. 838,70 P. 886
• Parties: U. B. SHARPLESS v. WILLIAM BUCKLES et al
• Court: Kansas Supreme Court

70 P. 886

65 Kan. 838

U. B. SHARPLESS v. WILLIAM BUCKLES et al

No. 13,389

Supreme Court of Kansas

December 6, 1902

Decided July, 1902.

Original proceeding in mandamus.

Application denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. MANDAMUS -- Office of the Writ. The only purpose of a writ of mandamus is to require the person to whom it is issued to perform some act which the law enjoins as a duty. The writ itself confers no power and creates no duty, and its only office is to command the exercise of a power already possessed, or the performance of a duty already imposed.

2. MANDAMUS -- Duty of County Canvassing Board -- When Mandamus will not Lie. The duty of a county canvassing board is ministerial only. If the election returns made to the county clerk are genuine and regular, the board has no other duty to perform than to make the footings and declare the result. Mandamus will not lie to require a county canvassing board to recanvass returns and exclude from the count certain votes because cast and returned under a law that is claimed to be unconstitutional, since the determination of such question is not a duty imposed on the board, nor within its power.

Henry Elliston, and Garver & Larimer, for plaintiff.

B. P. Waggener, for defendants.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

This is an application for a peremptory writ of mandamus. The plaintiff and Peter T. Laughlin were opposing candidates for the office of representative in the third representative district, comprising part of Atchison county. After the election the board of county commissioners met at the office of the county clerk and opened and canvassed the several election returns made to that office. It was thus ascertained that of the votes cast at such election in the territorial limits of the representative district plaintiff had received a majority. There were, however, votes cast outside the district by persons who were residents and legal voters of the district, who were, on the day of the election, absent from the district engaged in railway services, which, when counted, gave to Peter T. Laughlin a majority of the total votes cast by the electors of the district. The votes cast outside the district by persons engaged in the railway service, under the provisions of chapter 180, Laws of 1901 (Gen. Stat. 1901, §§ 2771-2777), were in all respects cast and returned in conformity with the provisions of that chapter. The entire vote cast and returned was canvassed by the board of county commissioners and the clerk made out an abstract thereof and forwarded a certified copy to the secretary of state.

It is claimed by the plaintiff that chapter 180, Laws of 1901, which authorizes railway employees to vote at a place outside their voting precinct, is unconstitutional and void, and such votes should not have been counted. It is sought by this proceeding to have the board of county commissioners and the clerk reconvene and recanvass this vote, and to exclude from their consideration the votes so cast outside the election district, and to certify the result thereof to the secretary of state. A determination of the questions requires, first, an examination of the duties imposed by law upon the canvassing board, and, second, the office of a writ of mandamus.

Section 2587, General Statutes of 1901, reads:

"On the Friday next following the election, the county clerk and the commissioners of the county, or a majority of said commissioners, at ten o'clock A. M. of said day, shall meet at the office of said county clerk, and shall proceed to open the several returns which shall have been made to that office; and said commissioners shall determine the persons who have received the greatest number of votes in the county for the several county, district and state officers, and members of the senate and house of representatives, representative in congress, and electors of president and vice-president of the United States. . . ."

Section 2590 reads:

"As soon as the commissioners aforesaid shall have determined the persons who have received the highest number of votes for any office, the county clerk shall make out abstracts of the votes in the following manner: . . . Third, the abstract of votes for member or members of the senate and house of representatives on one sheet. . . . Which abstracts, being certified and signed by the county clerk, shall be deposited in his office, and certified copies of abstracts, numbered . . . three . . . (when said officers have been voted for at said election), under the official seal of said clerk, and shall be placed in separate envelopes, indorsed, and directed to the secretary of state, and forwarded immediately to the seat of government, by mail. . . ."

The only duty imposed by this statute on the board of canvassers is to open the returns, determine their regularity and genuineness, make the footings, and declare the result. In case of the election of a representative or state officer, it is then the duty of the clerk to make and certify an abstract of the votes to the secretary of state. Such duties are so manifestly ministerial as to make elaboration useless.

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