Steele v. Martin , 6 Kan. 430 ( 1870 )

The opinion of the court was delivered by error goes to the validity of those provisions of the election law of this State, under and by virtue of which a court or courts may be constituted for the trial and deter-

Sarford; J.:

i coukts for SCmiS The first point made by the plaintiff in mination of contested elections. It cannot be necessary to discuss this question from a constitutional standpoint, inasmuch as the power of the legislature in the premises is clearly granted in the constitution : (Art. 3, § I.) Then as to the proper exercise of that power, it is hardly to be questioned. The tribunals contemplated by the provisions referred to are invested with judicial functions, (2 Kas., 322,) and are clothed with powers sufficient to meet all the requirements which can be made at their hands, and under the circumstances in respect of which they- may or can be called upon to act.' "What more can he asked or required, it is not easy to see. We conclude that the power of a court constituted for the purposes named, and in pursuance of the law applicable thereto, is not to be denied.

2. Proceedings irregularities, II. The second point made by the plaintiff in error, is, that such court in this instance was not properly constituted; and he bases his objection on the fact that it did not convene and organize on the day on which under the law it should have so done. As to the first part of this objection, it is answered by a reterence to the record. The members of the court did meet on the day required, and considered some questions connected with thé case and preliminary thereto, and adjourned without having taken the oath of office, and without a formal calling of the case to be submitted to them, which was set for trial upon said day. They were however sworn on the next day, and' before proceeding at all with the trial on the merits. Did such proceeding upon their part have the effect to vitiate their acts in the premises, as claimed by the plaintiff in error ? We think ■not. The court met in pursuance of notice duly served, as required by law; and although it might be necessary for the members to take an oath of office' before proceeding with the trial of the case, they were most certainly a sufficiently-constituted court, under the act creating or authorizing such court, to adjourn their proceedings until next day. Nor would jurisdiction of the case,- and of the parties thereto, be thereby lost, or in any manner affected. Not only on general principles would the proceedings be under the-control of such court, but they are made so by express statute’,1 and this would of necessity give the right to adjourn as was done in this case, or to any extent such as not to abuse .the power thus given. There is no claim of abuse in this case; nor is it intimated that the party complaining was in any manner injured or even incommoded by the adjournment. And the same is true with regard to the failure of the members of the court to take the oath of office when they first met. No one was injured or incommoded thereby.

s. votico of conficientl en 8U" III. But it is further urged that the notice itself did not contain the requisites of notices in such cases under the law; section 92, p. 425, Gen. Stat. Comparing the notice with the section referred to, it appears that it was addressed to the sheriff of the county. It contained the names of the contestor and contestee; the names of the judges before whom the contest was to be had; a brief statement of the causes of the contest, and the day of trial. These are all the requisites named in the statute;' and containing them, the notice was sufficient. It is proper to remark here, in answer to the arguments of counsel, that it is no objection to the notice that it did not allege that the acts of the board of canvassers set out and complained of as errors and mistakes, would, if rectified, change the result of the election to be contested. Such allegation would be no statement of a cause of contest, within the meaning of the term, as used in said section 92; and besides this, such allegation was included in the verified statement of the contestor, which was filed in the office of the county clerk pursuant to the preceding section 89, and being so on file was before the court as a paper in the case, and of course subject to the inspection of the contestee.

IV. Another point is made by the plaintiff in error, as respects the evidence 'which was before the court, and what was established thereby. In regard to this matter it is sufficient to say that, looking at the record, which is somewhat meager, and does not purport to present the evidence introduced, hut only a summary statement of some portions, and the conclusions of the court, we are most certainly not able to say that the court acted otherwise than as warranted by such evidence. ^*

Other objections still are raised to the proceedings of the court before which the election contest was tried, and to those of the district court; but we do not think that they are material, and such as will warrant a reversal by this court.

The judgment of the district court is affirmed.

All the Justices concurring.