Simpson v. Osborn

• Decision Date: 11 November 1893
• Citation: 34 P. 747,52 Kan. 328
• Parties: ROBERT SIMPSON v. R. S. OSBORN et al
• Court: Kansas Supreme Court

34 P. 747

52 Kan. 328

ROBERT SIMPSON v. R. S. OSBORN et al

Supreme Court of Kansas

November 11, 1893

Original Proceeding in Mandamus.

ON the 5th day of October, 1893, there was filed in the office of the secretary of state a petition, signed by the plaintiff and 24 other qualified voters of the thirty-fifth judicial district of this state, nominating William Thomson as the candidate of the "miners and laboring men's party" for judge of said district, to be voted for at the ensuing election. On the 23d of October, at 10:25 P. M objections to said nomination paper were filed by other electors of said judicial district. Thereupon the defendants fixed the time and place for a hearing upon said objections before the attorney general, auditor and secretary of state on Monday, October 30, 1893, at 9 o'clock A. M., at the office of the secretary of state. The secretary regarded it as his duty to withhold certificates of such nomination which are required, under § 13 of the Australian ballot law, to be forwarded to the county clerks of the several counties in the judicial district, until after the objections pending should be determined by the special tribunal of state officers before named.

This action is brought to compel the secretary to issue such certificates. In the objections filed, it is alleged that two persons, whose names purport to be signed to the nominating papers, never did in fact so sign them. Upon said paper is an affidavit of one George Sturnam, stating that he personally saw each of the petitioners subscribe his name to the paper, and knows that each is a qualified voter of the thirty-fifth judicial district. No evidence was introduced to the contrary. William Thomson is also the candidate of the republican party, and it is alleged in the answer that the "miners and laboring men's party" have not made any nomination of a candidate for any other office to be voted for at the ensuing election. Other facts are stated in the opinion herein, filed November 11, 1893.

Peremptory writ awarded.

David Overmyer, S. B. Bradford, and J. T. Pringle, for plaintiff.

Gleed, Ware & Gleed, and Chas. Hamble, for defendants.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

We are called on in this case to construe certain provisions of chapter 78 of the Laws of 1893, known as the "Australian ballot law." The plaintiff and 24 others signed and caused to be filed with the secretary of the state, under the provisions of § 5 of the act under consideration, a paper nominating William Thomson for judge of the thirty-fifth judicial district. Section 5 is as follows:

"SEC. 5. Nominations for candidates for any office to be filled by the voters of the state at large may also be made by nomination papers, signed in the aggregate for each candidate by not less than five hundred (500) qualified voters of the state. Nominations of candidates for office to be filled by the electors of a county, district or other division less that a state, may be made by nomination papers, signed in the aggregate for each candidate by not less than twenty-five (25) qualified voters of such county, district, or division. Nominations of candidates for offices to be filled by the electors of a city, town, precinct or ward may be made by nomination papers signed in the aggregate for each candidate by not less than ten (10) qualified voters of such city, town, precinct, or ward. Each elector signing a certificate shall add to his signature his place of business and post-office address."

Section 10 provides:

"SEC. 10. The certificates of nomination and nomination papers being so filed, and being in apparent conformity with the provision of this act, shall be deemed to be valid, unless objection thereto is duly made in writing. Such objections or other questions arising in relation thereto in the case of nomination of state officers or officers to be elected by the voters of a division less than the state and greater than a county, shall be considered by the secretary of state, auditor of state and attorney general, and the decision of a majority of these officers shall be final. . . . In any case where objection is made, notice shall forthwith be given to the candidates affected thereby, addressed to their place of residence as given in the nomination papers, and stating the time and place, when and where such objections will be considered."

Section 13 reads:

"SEC. 13. Not less than fifteen (15) days before an election to fill any public office, the secretary of state shall certify to the county clerk of each county within which any of the electors may by law vote for the candidates for such office, the name and residence of each person nominated for such office, as specified in the certificates of nomination or nomination papers filed with the secretary of state."

The objections in this case were not filed with the secretary of state till late in the evening of October 23.

The main question presented for our consideration is whether the secretary of state should delay certifying the nomination to the clerks of the counties included within the judicial district till after the objections to the nomination papers have been passed on by the special tribunal created by § 10, or must send forward the certificates 15 days before the election, notwithstanding the pendency of such objections. By § 7 of the act, it is provided that all nomination papers for any office to be filled by the electors of the entire state, or a district greater than a county, shall be filed with the secretary of state not more than 60 nor less than 30 days before the day of the election. The nomination paper in this case was filed on October 5. The only objections urged here are such as appear on the face of the petition. The secretary of state expresses his entire willingness to issue the...