State Ex Rel. Atty. Gen. v. Stock

• Citation: 16 P. 106,38 Kan. 154
• Parties: THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. J. R. STOCK, et al
• Decision Date: 10 December 1887
• Court: Kansas Supreme Court

16 P. 106

38 Kan. 154

THE STATE OF KANSAS, on the relation of S. B. Bradford, Attorney General, v. J. R. STOCK, et al

Supreme Court of Kansas

December 10, 1887

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Original Proceedings in Mandamus.

ACTION brought in the name of the state, on the relation of the attorney general, against all the county officers of Rush county, to compel them to remove their several offices from La Crosse to Rush Center or Walnut City, and there to keep their offices as the legal county seat of Rush county.

The alternative writ of mandamus, omitting caption, reads as follows:

The State of Kansas to J. R. Stock, A. C. Lippert, and J. E. Ruhl, County Commissioners; L. K. Hain, County Clerk; J. A. Yawger, Clerk of the District Court; J. F. Edwards, County Surveyor; A. J. Redman, Sheriff; L. T. Delaplain, Probate Judge; W. E. Semple, Superintendent of Public Instruction; R. F. Ward, Register of Deeds; G. Stulkin, County Treasurer; Thomas Tweedy, County Attorney; Dr. W. J. Phillips, Coroner; and S. J. Osborn, Judge of the Twenty-ninth Judicial District of the State of Kansas -- Greeting:

Whereas an application for a mandamus to each of the above-named defendants, duly verified, has been presented to the undersigned, a judge of the supreme court of the state of Kansas, by which it is made to appear that at an election duly held in the said county of Rush on the 12th day of February, 1878, for the purpose of relocating the county seat of the said county of Rush, a majority of the votes cast at said election were in favor of the town of Walnut City for said county seat. That the returns of said election were duly made to and canvassed by the county commissioners of said county of Rush, sitting as a board of canvassers. And upon said canvass it was ascertained and determined by said county commissioners, sitting as a board of canvassers, that a majority of the votes so cast at the said election as aforesaid were for the town of Walnut City, which finding and determination were proclaimed by the said board of county commissioners and were by them made a matter of record in the records of said county. That upon said proclamation of said election the then county officers of said county of Rush removed from the town of LaCrosse, where the county seat of said county of Rush had theretofore been, with their respective offices, and books, records, papers and documents belonging to the same, and to the town of Walnut City, and held their respective offices at said town of Walnut City, and kept there the records, papers and documents of their respective offices until about the 30th day of November, 1882, at which time the then county officers, without any authority for so doing, removed their respective offices, together with the books, records, papers and documents belonging to the same, to the town of La Crosse, at which place they have since remained, and the present county officers now keep the same there, without authority of law for so doing, and pretend to do and transact the business of their respective offices at said town of La Crosse, and neglect and refuse to hold their respective offices and discharge the duties thereof at the town of Walnut City, and do compel the citizens of said county to transact their public business at said town of La Crosse, instead of transacting it at the county seat of said county, the town of Walnut City. And that upon and after the said proclamation, declaring and proclaiming Walnut City to be the county seat of said county of Rush, the district court sitting in and for the said county held its terms at said county seat, Walnut City, until on or about the -- day of May, 1883, when said court again held its terms at La Crosse, and has since said date, without authority for so doing, continued to hold the said terms of said court at the said town of La Crosse.

That since the said election and the canvass, determination and proclamation of result thereof, as aforesaid, there has not been in said county of Rush any other election for the purpose of removing the county seat of said county, or for relocating the same, nor has there been any judicial determination setting aside or annulling or vacating the said election, determination or proclamation, which decided, determined and proclaimed the said town of Walnut City to be the county seat of Rush county; and that the said town of Walnut City is now the county seat of said Rush county, and has been the county seat of said county at all times since the said election and the canvass and determination and proclamation of the result of said election, to wit, the 12th day of February, 1878.

This is, therefore, to command you and each of you that you do immediately upon the receipt of this writ remove your respective offices from the town of La Crosse to the town of Walnut City, in the county of Rush, together with all the books, records, papers and documents belonging to the same, and there remain and perform and discharge the duties of your respective offices as by law required, or show cause to the supreme court of the state of Kansas, on or before the 19th day of August, 1886, why you should not be required to do as is herein commanded.

In testimony whereof, etc.

To this writ the defendant commissioners answered as follows, omitting caption, signature, and verification:

ANSWER.

Come now J. R. Stock, J. E. Ruhl and A. C. Lippert, commissioners of Rush county, Kansas, and defendants herein, and for their answer to the alternative writ of mandamus heretofore issued in this case, say:

That the plaintiff and relator herein ought not to have a peremptory writ of mandamus against these defendants, or either of them, for the following reasons, to wit:

I. That defendants deny each and every material allegation, matter and thing in said writ alleged and contained, except as hereinafter specifically admitted, modified or explained.

II. Defendants admit that on the 8th day of January, 1878, the board of commissioners of Rush county, Kansas, called an election for the avowed purpose of relocating the county seat of said county, which had been before that time and to wit, on the 27th day of February, 1877, by an election there for that purpose duly held, relocated at La Crosse, in said county, and at which place all the county officers of said county kept their offices from said 27th day of February, 1877, until the happening of the events hereinafter mentioned; but defendants say that the said order of the board of commissioners calling an election for the relocation of said county seat, and upon the pretended result of which election the relator relies, and which election was by said order directed to be held on the 12th day of February, 1878, was absolutely void and wholly without warrant and authority, for the reasons that the board had no power to call the same; that no sufficient petition for the calling of such election was ever presented to said board of commissioners; that many of the names appearing upon the pretended petition that was presented were names of persons not residing in said county and not qualified voters at such election, and fictitious, and that many of the names appearing thereon were written thereon without the knowledge, authority or consent of the persons named; that the legal and requisite number of the legal electors of said county never signed said pretended petition.

That at the election held on the 12th day of February, 1878, in pursuance of the order of the board of commissioners, so unlawfully made as aforesaid, there were fraudulent votes cast in favor of Walnut City, and afterward counted in favor of Walnut City by the said board of commissioners in their canvass of the pretended votes of said election and of the pretended returns from the various voting precincts of said county, to the number of forty-five.

That there were properly offered and tendered at various election precincts in said county at said election the ballots of legal voters in said county, who desired to vote for La Crosse for county seat of said county, and which votes were, by the judges of election to whom they were so tendered, willfully, unlawfully and corruptly refused, to the number of fourteen.

That at said election illegal and fraudulent votes were cast at the precinct of Center, in the township of Center, in said county, by persons who were not legal voters, and were not entitled to vote at said election; that said illegal and fraudulent votes were cast for said town of Walnut City for county seat; that all the names of said voters appear upon the poll-books of election in said township, which names, with their respective numbers as they appear upon said poll-books, are as follows, to wit: 1 C. Mathews, 38 J. M. Anderson, 70 E. M. Cole, 15 E. M. Case, 40 G. Robinson, 6 A. Bell, 18 D. N. McChesney, 42 Wm. Lockwood, 75 B. F. Willey, 19 Francis McFadden, 44 T. D. Sutton, 76 I. H. Brown, 20 Thomas O'Brian, 49 T. P. Fisher, 77 B. F. Brown, 21 Joseph , 50 W. A. Fick, 78 A. J. Harburgher, 25 G. W. Cook, 59 C. H. Polk, 80 Chas. Fick, 27 L. Wolf, 61 King Blanton, 81 L P. Jones, 32 Francis McFadden sr., 68 J. H. Gilbert, 91 M. Graham, 69 W. D. Hoyt, 36 W. H. Graham, 98 F. S. Stumbaugh, 72 J. M. Bell, 100 J. H. Kershaw, 101 Jas. S. Curbett, 102 Hiram Smith.

That there was but one precinct in said township of Center, on said 12th day of February, 1878; that the place of voting in said township was Center.

That at said election, illegal and fraudulent votes were cast at the precinct of Brookdale, in the township of Brookdale, in said county, by persons who were not entitled to...