Thompson v. The State Board of Canvassers

• Decision Date: 09 October 1920
• Docket Number: 23,199
• Citation: 107 Kan. 548,192 P. 749
• Parties: WILL S. THOMPSON, Plaintiff, v. THE STATE BOARD OF CANVASSERS, L. J. PETTIJOHN as Secretary of State, etc., and CARR W. TAYLOR, Defendants
• Court: Kansas Supreme Court

192 P. 749

107 Kan. 548

WILL S. THOMPSON, Plaintiff, v. THE STATE BOARD OF CANVASSERS, L. J. PETTIJOHN as Secretary of State, etc., and CARR W. TAYLOR, Defendants

No. 23,199

Supreme Court of Kansas

October 9, 1920

Decided July, 1920

Original proceeding in mandamus.

Application denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRIMARY ELECTION--Nomination for State Senator--Statutory Provisions for Contest--Contest Tribunal The primary-election law, as interpreted in the case of Griffin v. Gesner, 78 Kan. 669, 97 P. 794, provides for contest of a nomination for state senator in a district composed of more than one county, before a tribunal composed of the secretary of state, the auditor of state, and the attorney-general.

2. SAME--Contest for Nomination for State Senator--Mandamus Will Not Lie. Existence of the specific statutory remedy excludes contest by means of an action of mandamus.

F. Dumont Smith, and C. M. Williams, both of Hutchinson, for the plaintiff.

John H. Connaughton, of Kingman, E. D. McKeever, of Topeka, F. L. Martin, and Carr W. Taylor, both of Hutchinson, for the defendants.

OPINION

BURCH, J.:

The plaintiff applies for a writ of mandamus to compel the secretary of state to place the plaintiff's name on the ballot to be used at the general election in November next, as the Republican nominee for state senator from the thirty-sixth senatorial district, in place of the name of the defendant, Carr W. Taylor, who holds the certificate of nomination. The state board of canvassers is joined as a defendant as a matter of form. Carr W. Taylor is joined as a defendant in order that he may be heard and that his claims may be adjudicated.

The senatorial district comprises three counties, including Reno. At the primary election held on August 3, 1920, the plaintiff and Taylor were opposing candidates for the nomination in dispute. The statutory course of procedure was followed in making and canvassing the election returns, and resulted in certification and publication by the secretary of state of Taylor's nomination. The charge is that election boards in Reno county counted illegal ballots cast against the plaintiff, and threw out legal ballots cast for him, in such numbers that Taylor appeared to have votes enough to nominate, when in fact a proper count would show the plaintiff to be the nominee. The proposal, therefore, is to contest the primary election by an action of mandamus against the secretary of state, whose duty it is to prepare the ballot for the general election. Whether or not this may ever be done need not be discussed. The action does not lie in the present instance, because the plaintiff had a plain and adequate remedy, specially provided by statute, which he did not invoke.

In the case of Griffin v. Gesner, 78 Kan. 669, 97 P. 794 the court considered the question whether or not nomination by primary election of a candidate for member of the house of representatives, in a district comprising a single county, might be contested. An examination of the statutes revealed legislative purpose to provide for such a contest. A specific statute (Gen. Stat. 1901, ch. 36, art. 6; Gen. Stat. 1915, ch. 33, art. 8), which was...