Tarbox v. Sughrue

• Decision Date: 04 February 1887
• Parties: R. W. TARBOX v. P. F. SUGHRUE.-- L. W. CHERRINGTON v. J. G. JERNINGAN.-- R. GAEDE v. S. GALLAGHER.--E. J. BEARD v. CHAS. VAN TROMP
• Court: Kansas Supreme Court

12 P. 935

36 Kan. 225

R. W. TARBOX v. P. F. SUGHRUE.-- L. W. CHERRINGTON v. J. G. JERNINGAN.-- R. GAEDE v. S. GALLAGHER.--E. J. BEARD v. CHAS. VAN TROMP

Supreme Court of Kansas

February 4, 1887

Decided January, 1887

Original Proceedings in Quo Warranto.

ACTION brought in this court January 20, 1886, by R. W. Tarbox against P. F. Sughrue, to determine the title of the parties to the office of sheriff of Ford county: also, certain other proceedings in the nature of quo warranto, to wit Cherrington v. Jerningan; Gaede v. Gallagher; Beard v. Van Tromp. The opinion, filed at the February, 1877, session of the court, states the material facts.

C. N Sterry, and Bowman & Bucher, for plaintiff.

J. T Whitelaw, J. H. Finlay, J. W. Ady, J. H. Gillpatrick, and Rossington, Smith & Dallas, for defendant.

JOHNSTON J. VALENTINE, J., concurring. HORTON, C. J.

OPINION

JOHNSTON, J.:

This is an original proceeding in the nature of quo warranto, to try the title of R. W. Tarbox and P. F. Sughrue to the office' of sheriff of Ford county. Both of them were candidates, and both claimed to have been duly elected at the general election held in November, 1885. At that election there were three tickets in the field, known as "people's," "democratic," and "independent." The plaintiff, Tarbox, was the candidate for sheriff on the independent ticket, and the defendant, Sughrue, was the candidate on the people's ticket, while one T. J. Tate was the democratic candidate. The result of the election, according to the canvass made by the county commissioners at the time appointed by law, was, that Sughrue received 1,052 votes, Tarbox 926 votes, and Tate 189 votes. Sughrue was thereupon declared elected by a plurality of 126 votes, and a certificate of election was accordingly issued to him.

The correctness of this result is challenged by the plaintiff, who claims to have received the greatest number of legal votes cast at that election. It is conceded that the election was held and conducted in a lawful manner throughout the county, except in Dodge precinct. In regard to that precinct, the plaintiff alleges and attempts to prove that a number of lawless persons, with the knowledge and consent of the candidates on the people's ticket, took possession of and surrounded the voting-place on the morning of the election, and by their threats and conduct intimidated and kept away from the voting-place legal voters who desired and intended to vote for the plaintiff; and that they fraudulently and illegally procured and had cast illegal votes by persons not electors of the precinct; and that repeating and illegal voting were carried on to such an extent, that in the precinct where there are not to exceed six hundred legal votes, ten hundred and eighty-two were recorded as having been cast. It is alleged that the judges of the election of that precinct were knowing to and connived at the fraudulent and illegal voting, and that those who desired to prevent the illegal voting and to challenge the voters and repeaters, were threatened and driven away from the voting-place. It appears that prior proceedings of injunction and mandamus were begun with a view of inquiring into the validity of this election; but these have been passed over, and instead, the present direct proceeding has been brought.

The defendant presents as a preliminary question, an objection to the jurisdiction of this court. The objection is that a proceeding in the nature of quo warranto cannot be maintained where there is another plain and adequate remedy. That principle has received the approval of this court. (The State, ex rel., v. Wilson, 30 Kan. 661.) But is the remedy suggested by the defendant an adequate one? He contends that such a remedy is furnished in the statute providing that an election of a person who has been declared elected to a county office may be contested. (Gen. Stat. of 1868, ch. 36, §§ 85-105 inclusive.) It is true that under that act there may be a full inquiry into the validity of the election, and the rights of the claimant under the election may be adjudicated; but the ouster of the defendant from the office, which is a part of the remedy sought in this proceeding, cannot be obtained. The judgment rendered by the contest court under that statute is stated in § 101, as follows:

"The court shall pronounce judgment, whether the contestee or any other person was duly elected; and the person so declared elected shall be entitled to his certificate upon qualification. If the judgment be against the contestee, and he has received his certificate, the judgment annuls it. If the court finds that no person was duly elected, the judgment shall be that the election be set aside."

Thus it will be seen that the judgment does not go to the extent of removing the incumbent of the office, but only settles the validity of the election, who, if anyone, is entitled to the office, and to the certificate of election, and may annul the certificate that has been granted to any successful contestee. It still remains to obtain the possession of the office; and unless voluntarily surrendered by the incumbent, a direct proceeding like the present one would be required to effectuate that purpose. To oust the defendant, the remedy proposed is inadequate; and therefore the present proceeding which to a great extent is within the discretion of the court, will lie.

The case must therefore be examined on its merits; and the first matter we will consider is the claim that the voters were deterred from voting by violence, threats, and intimidation. More than one thousand pages of closely-written testimony have been taken in the case, a great portion of which was directed to this question; but we are of the opinion that it falls far short of supporting the charge. The poll was opened and the election board organized without contention or disturbance. Zealous champions of the respective tickets were on the ground advocating the claims of their candidates, and it is true that some loud talk and boisterous conduct were indulged in. The most serious disturbance referred to is the testimony of several, that one Masterson, a challenger for the people's ticket, struck another named Jones, who was challenging for the opposite party, a blow in the face. It appears that the blow was given by a backward movement of the arm, and that Masterson was not looking in the direction of the one who was struck, and the explanation of the circumstance given by Masterson is, that he was pushed off his balance by persons who were crowding up to the window where the votes were received, and that the blow was wholly accidental. There was testimony of other slight disturbances and threatening talk during the day, but we think nothing occurred there which showed a preconceived purpose to intimidate the voters, or which materially affected the result or freedom of the election. If the election board continues to honestly discharge its duty, and a fair opportunity is given to vote, a slight disturbance and casual fray such as frequently occur at elections will not vitiate an election, or justify voters in abandoning the polls. In respect to violence and intimidation, Judge McCrary, in his work on Elections, § 416, says:

"The violence and intimidation should be shown to have been sufficient either to change the result, or that by reason of it the true result cannot be ascertained with certainty from the returns. To vacate an election on this ground, if the election were not in fact arrested, it must clearly appear that there was such a display of force as ought to have intimidated men of ordinary firmness."

The principal question is, whether the great body of electors had an opportunity to freely cast their ballots. Many witnesses, some of whom were adherents of the plaintiff, have testified that the election was conducted in an orderly and peaceable manner, and that those who were entitled to vote could and did vote without difficulty. Then there is the fact that a full vote was cast. Besides, it appears that friends of the ticket headed by the plaintiff remained at the polls throughout the day, and that 238 votes were cast in favor of the plaintiff, and 70 votes for the democratic candidate. There is a claim that Masterson, who is said by some of the witnesses to be a dangerous man, threatened violence to four citizens of Dodge in case they appeared at the polls on election day. It is denied that any such threat was made. It does appear that the men spoken of by Masterson were personal enemies, and that something which was said by them derogatory of himself provoked the making of the threat. Whatever was said by him at that time related only to those four persons; and if a threat was made as is claimed, and those persons were thereby deterred from voting, it would be insufficient to affect the election. The mass of voters, as we have seen, had a fair opportunity to vote; and unless a number of voters had been prevented from voting, sufficient to have varied the result, the election must stand. (McCrary on Elections, §§ 416, 425; The State v. Mason, 14 La. Ann. 505; Augustin v. Eggleston, 12 id. 366; Cooley's Const. Lim., 5th ed., 781.)

It is next claimed that illegal votes were received at the Dodge precinct sufficient to destroy the integrity of the poll, or at least sufficient to change the result of the election. From the testimony, it appears that at that time Dodge City was an outpost of civilization, and that in...