State v. Shepherd

• Decision Date: 05 October 1889
• Parties: THE STATE OF KANSAS, on the relation of L. B. Kellogg, Attorney General, v. CARRIE SHEPHERD, as City Clerk of Leavenworth
• Court: Kansas Supreme Court

22 P. 428

42 Kan. 360

THE STATE OF KANSAS, on the relation of L. B. Kellogg, Attorney General, v. CARRIE SHEPHERD, as City Clerk of Leavenworth

Supreme Court of Kansas

October 5, 1889

Decided July, 1889.

Original Proceeding in Mandamus.

THE opinion, filed October 5, 1889, states the case.

Writ of mandamus refused.

L. B Kellogg, attorney general, for The State.

Thos P. Fenlon, for respondent.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

On March 2, 1889, an act of the legislature relating to the registration of voters, etc., in certain cities of the first class, was passed, and on March 13, 1889, the act took effect. The title to the act reads as follows:

"An act to provide for and regulate the registration of voters; to regulate elections, and to provide for the appointment of a commissioner of elections in certain cities of the first class." The remainder of the act, so far as it is necessary to quote the same, reads as follows:

"SECTION 1. That in cities of the first class where the metropolitan-police law is or may be in force, and where more than 6,000 votes were cast at the general election in November, 1888, or shall be so cast at any future general election, the members of the board of police commissioners and a commissioner of elections, to be appointed as hereinafter provided, shall constitute a board of supervisors of elections, of which the president of the board of police commissioners shall be president and the commissioner of elections shall be secretary," etc.

"SEC. 2. The governor of the state shall appoint for each city of the first class to which the provisions of this act apply, immediately upon the going into effect of this act, a commissioner of elections, who shall hold his office for the term of four years, and until his successor is appointed and qualified," etc.

"SEC. 19. That in any city of the first class where more than 6,000 votes were or may be cast as specified in section 1 of this act, but where the metropolitan-police law is not in force, a commissioner of elections shall be appointed as previously provided; and it shall be his duty to appoint one councilman from each ward, who shall act as a board of supervisors of elections, to be confirmed by the council, whose duties as such supervisors shall be identical in every respect with those prescribed for such supervisors in cities where the metropolitan-police law is in force."

At the time of the passage and the taking effect of this act the city of Leavenworth was, and still is, a city of the first class, in which the metropolitan-police law was and still is in force. At the general election held in November, 1888 less than 6,000 votes were cast in said city, but at the city election held in April, 1889, more than 6,000 votes were cast in said city, to wit, 7,439, of which 3,000 were cast by women. On April 10, 1889, the governor, under the aforesaid act, appointed William W. Roberts, a citizen and householder of Leavenworth city, a commissioner of elections for the city, and he duly accepted the office and qualified. At that time and since, the defendant, Carrie Shepherd, was and has been the city clerk of said city. On April 24, 1889, Roberts, as such commissioner, demanded of the defendant, as city clerk, the entries of registration made by the clerk since the first Monday in January, 1889, and...