Wheeler v. Caldwell

• Decision Date: 12 March 1904
• Docket Number: 13,777
• Parties: S. C. WHEELER v. WILLIAM W. CALDWELL
• Court: Kansas Supreme Court

75 P. 1031

68 Kan. 776

S. C. WHEELER v. WILLIAM W. CALDWELL

No. 13,777

Supreme Court of Kansas

March 12, 1904

Decided January, 1904.

Error from Cloud district court; HUGH ALEXANDER, judge.

Judgment reversed and case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. QUO WARRANTO -- Jury Trial Not Demandable. A jury trial is not demandable as a matter of right in a proceeding in quo warranto.

2. ELECTIONS -- Challenged Voters -- Identification of Ballots Sufficient. At an election precinct only four of the voters were challenged, and the ballots they cast were marked so as to indicate that they were cast by challenged voters. The ballots so identified showed that all had been cast for a certain candidate. Held, that the identification is sufficient, and that the proof of identity of the ballots and for whom they were cast is not overcome by a showing that one of the challenged voters was accompanied to the polls by a friend of another candidate, nor by the fact that his vote was challenged by a friend of the candidate whose name was on the challenged ballots.

3. ELECTIONS -- Ballots -- Irregularities Insufficient to Require Rejection. A ballot, legal in form, cannot be rejected merely because there is one more ballot in the ballot-box than there are names written on the poll-books and also that it happened to be the last ballot taken from the box when the ballots were counted and, under the facts in this case, it is held, that the ballot to which such objections were made should have been counted.

4. ELECTIONS -- Illegal Ballot -- Improper Marking. Where one of the lines of a cross on a ballot is paralleled by a third distinct line, it should be regarded as a distinguishing mark, and the ballot treated as illegal.

5. ELECTIONS -- Ballot Not Illegal Because of Unequal Length of Cross-marks. The more fact that one of the lines of a cross-mark on a ballot is shorter than the other one does not warrant the rejection of the ballot, where the shorter line actually crosses the longer one.

6. PRACTICE, SUPREME COURT -- Cross-petition in Error -- Motion for New Trial. A cross-petition in error is treated as an independent proceeding, and the party complaining must take the preliminary steps giving him a right to assign error, and before errors occurring during the trial can be made the basis of a review, they must be presented to the trial court for reconsideration on a motion for a new trial.

A. L. Wilmoth, F. W. Sturges, and Garver & Larimer, for plaintiff in error.

Theodore Laing, E. V. D. Brown, Dwight M. Smith, Isaac M. Rigby, and Park B. Pulsifer, for defendant in error.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.:

The title to the office of mayor of the city of Concordia is involved in this proceeding. An election was held on April 7, 1903, when William W. Caldwell and S. C. Wheeler were candidates for mayor, and the result, as found by the canvassing board, was that Wheeler received 809 votes, while Caldwell received 808 votes. A certificate of election was issued to Wheeler, and on April 12 he qualified and entered upon the discharge of the duties of the office. Caldwell brought this proceeding, alleging that he had received the greater number of legal votes and was entitled to the possession of the office. Upon a trial, the district court found that 1597 legal ballots had been cast by qualified voters for mayor, of which Caldwell received 799 and Wheeler 798, and therefore gave judgment in favor of Caldwell.

A jury was demanded by Wheeler to try the facts, but the court refused the demand, and of this ruling complaint is made. Whether a jury is demandable as a matter of right in a case of quo warranto is still an open question in this state. In several cases the question has been suggested and left unanswered, but in some of them a jury was granted ex gratia. (The State, ex rel., v. Allen, 5 Kan. 213; The State, ex rel., v. Foster, 32 id. 14, 3 P. 534.) In this state there has been substituted for the writ of quo warranto and the information in the nature of quo warranto a civil action, and under this act the remedies formerly obtainable in quo warranto may be had. (Civil Code, § 652; Gen. Stat. 1901, § 5148.) So far as our code is concerned, it provides that a party is entitled to a jury to try issues of fact in civil actions brought for the recovery of money or of specific real or personal property, and that all other issues of fact shall be tried by the court, unless it chooses to submit them to a jury or referee. (Civil Code, §§ 266, 267; Gen. Stat. 1901, §§ 4713, 4714.)

It is contended, however, that at common law a party was entitled to a jury trial in quo warranto proceedings, and that the common-law right was preserved and continued by virtue of section 5 of the bill of rights, which provides that "the right of trial by jury shall be inviolate." This provision means that the right of trial by jury shall be and remain as ample and complete as it was at the time when the constitution was adopted. (The State, ex rel., v. City of Topeka, 30 Kan. 653, 2 P. 587.) What, then, was the status of the law as to the right to a jury in quo warranto cases at that time? If the common-law rule is to control, the question arises as to what common-law rule was in effect in this respect when the constitution was adopted. The first act adopting the common law as a rule of action in Kansas was passed by the first legislature held in Kansas, and so much of it as is pertinent reads as follows:

"SECTION 1. The common law of England and all statutes and acts of parliament made prior to the fourth year of James the First, and which are of a general nature, not local to that kingdom, and not repugnant to, or inconsistent with, the constitution of the United States, and the act entitled 'An act to organize the territory of Nebraska and Kansas,' or any statute law which may from time to time be made or passed by this or any subsequent legislative assembly of the territory of Kansas, shall be the rule of action and decision in this territory; any law, custom or usage to the contrary notwithstanding." (Ch. 96, Territorial Statutes 1855.)

This act was repealed, and then reenacted in substantially the same language, in 1859. (Laws 1859, ch. 121, § 1.) According to these acts of adoption, the common law as it existed in England in the fourth year of James the First, which was 1607, became the common law of Kansas, and remained such at least until the state constitution was adopted. ( Kansas Pacific Rly. Co. v. Nichols, Kennedy & Co., 9 Kan. 235, 12 Am. Rep. 494.) At the date fixed in the act of adoption, the common law did not award a jury trial as a matter of right in quo warranto proceedings, nor was such right given until the passage of the act of parliament in 1730, known as 3 Geo. II, ch. 25. In Taliaferro v. Lee, 97 Ala. 92, 13 So. 125, the supreme court of Alabama had under consideration the right to a jury in a quo warranto proceeding, and it was said :

"At no period in the history of the information in England, so far as we are aware, was the relator or respondent ever regarded as entitled to trial by jury until that right was expressly conferred by act of parliament. (3 Geo. II, ch. 25.)"

See, also, State v. Johnson, 26 Ark. 281; State, ex rel. Att'y Gen., v. Vail, 53 Mo. 97; State, ex rel. Norton, v. Lupton, 64 id. 415, 27 Am. Rep. 253; State, ex rel. Mullen, v. Doherty, 16 Wash. 382, 47 P. 958, 58 Am. St. Rep. 39; State v. Moores, 56 Neb. 1, 76 N.W. 530.

Then, again, the statutory law, as it existed when the constitution was adopted, did not give the suitor a right to trial by jury in cases of this kind. Even if the common law had accorded this right, it was competent for the legislature to modify it and to make such cases triable by the court. In 1859 the legislature passed an act specifically providing what cases and issues should be tried by a jury and what should be triable by the court. (Laws 1859, ch. 25, §§ 274, 275.) Whether the question is determinable by the common law as adopted in Kansas, or by the statute as it existed when the constitution was framed, a jury cannot be required, as a matter of right, in this proceeding. If the rule of the present code is applied the same result will be obtained, and hence we conclude that no error was committed in denying the application for a jury.

The controversy as to the result of the election arose over qualifications of persons who voted, ballots in excess of the number shown by the poll-books, ballots on which it was claimed there were identifying marks, and ballots imperfectly marked by the voters. The qualifications of several of those who voted for Wheeler were challenged by Caldwell. One of them, Bagwell, made a trip to Iowa, and, though he soon returned to Concordia, there was testimony tending to show that he went to Iowa with the intention of establishing a resi dence there. Another was McCullough, who had been living with his mother in Concordia, but who, it was claimed, had changed his residence to the neighboring town of Clyde, and was therefore not entitled to vote. Another was Mrs. Webb, who, it was claimed, lost her right to vote by moving from one ward of the city to another; and still another was Cora Garder, who, it was claimed, was not a resident of Concordia at the time of the election. All of these had voted for Wheeler, and the court held them to be disqualified, and consequently took four votes from the count for Wheeler. The testimony as to the residence of these persons is not satisfactory, but it cannot be said that there is no testimony to sustain the findings of the trial court.

Looking at the testimony as it is brought to us in the record, we strongly incline to the opinion that McCullough and...