Anthony v. Halderman

¶1The following opinion was filed by

¶2This was an action brought under the provisions of Art. 29 of the code of civil procedure, by the plaintiff in error, plaintiff* below, to recover the office of Mayor of the City of Leavenworth, and to oust defendant therefrom. The petition was filed in the court below on the 4th day of June, 1870; and on the 2d of July, an answer was filed containing five grounds of defense. To the fourth defense plaintiff demurred. On the argument of the demurrer, the defendant suggested that the petition did not contain facts sufficient to constitute a cause of action, and asked the court to carry said *61demurrer back to the petition, and to sustain it thereto. This was done. The court found the petition defective, sustained the demurrer thereto, and no application being made for leave to amend, rendered judgment in favor of defendant for costs. Such judgment is now brought here for review.

¶3The right of the court, upon suggestion, to carry the demurrer back and apply it to the first fault in the pleadings is conceded by counsel for plaintiff in error, as well as fortified by the abundant citations in the brief of counsel for defendant in error. Does the petition state facts sufficient to constitute a cause of action ? It alleges that at the election held in the city of Leavenworth on April 5th, 1870, said plaintiff and defendant were the only candidates for the office of .Mayor; that by the returns of the judges of said election made to the city council, it appeared that 1458 votes were cast for John A. Halderman, and 1406 for Daniel N. Anthony, and none for any other person; that afterwards a certificate of election was issued to said Halderman, who took the oath of office, and has since been acting as Mayor. ’ It further alleges that on the 30th of March, that being the day of registration, certain persons, laming them, in all fifty-three persons, were “ residents of said city, to-wit, of the “ fourth ward thereof; and that each of said persons was “ on said March 30th a free male person, over twenty- “ one years of age, a citizen of the United States, and “ had resided in said city more than six months, next “ prior to said March 30th, and was a colored person of “ African descent, with a preponderance of African “blood; but was, by reason of the premises, a legally “ qualified voter in said city in the ward in which he re- “ sided.” There is a similar allegation in reference ta seventy-seven persons, naming them, residents of the *62second ward. The petition alleges further, that these persons applied to register, were refused; applied to vote, tendering ballots with plaintiff’s name thereon for mayor, but were refused and their ballots rejected. It alleges that those ballots should have been received, and if received, would have given plaintiff a majority.

¶41. Qualifications ot electora. Do the facts thus alleged show that the persons named were qualified voters in their respective wards ? A A jf n0^ their registration and their ballots were both properly refused. The constitution, Art. 5, § 1, reads — ■

“Every white male person, of twenty-one years and upwards, belonging to either of the following classes, who shall have resided in Kansas six months next preceding any election, and in the township or ward in lohich he offers to vote at least thirty days next preceding such election, shall be deemed a qualified elector.”

¶52. h0 restriction color. The object and effect of the Fifteenth Amendment to the Federal Constitution were to place the colored man in the matter of suffrage on the same basis with the white. It does not give him the right to vote independent ot the restrictions and qualifications, such as age and residence, imposed by the State Constitution upon the white man. The colored man, to become a voter, as well as the white man, must be twenty-one years of age, six months a resident of the State, and thirty days a resident of the township or ward. That amendment operates no further than to strike the word “ white ” from the State Constitution. Now, this petition alleges that these persons were over twenty-one years of age, and had resided six months in Kansas, and six months in the city of Leavenworth, but nowhere alleges that they had resided in the ward in which they offered to vote thirty days prior to such election. Failing to show this, it fails to show that they were qualified *63voters, or that they were improperly refused registration, or that their ballots were illegally rejected, or that the plaintiff failed to receive all the legal votes to which he was entitled. For this reason the ruling of the court below in sustaining the demurrer to the petition was correct, and should be affirmed.

¶63. Former judgment, fv liar to new action, Again: The petition alleges that at the first meeting after the election the city council opened the returns, and it appearing therefrom that John A. Iialderman had received a majority of the votes cast, the plaintiff thereupon gave notice to the city council that he desired to contest the election; that the council fixed a time and place iot nearing such contest; that plaintiff served a notice of the grounds of such contest upon said defendant; that the council met at the time and place, and after hearing evidence offered by plaintiff, ruled that it could not inquire back of the returns of the judges, and ordered the city clerk to record the name of defendant as mayor, and issue him a certificate thereof. This amounts substantially to an allegation that plaintiff applied to the city council as a tribunal to hear and determine the contested election case between himself and defendant, and that that tribunal ruled adversely to his claim. Can he re-litigate that question elsewhere ? It is a general rule, which none will gainsay, that where any tribunal has jurisdiction of the subject-matter of and the parties to any controversy, and renders a judgment thereon, such judgment is conclusive between the parties. If the rulings of that tribunal are adverse to one party, and wrong, he should seek to correct that judgment by error or appeal. Failing to do that he is estopped from further inquiry. Nor would a failure to provide for a review of such rulings and judgment, by an appellate tribunal affect the conclusiveness of such judgment. *64There are many questions which the Legislature has wisely provided shall be finally decided by the tribunal having original jurisdiction. Section 15 of ch. 18, Gen. Stat., 1868, “An act to incorporate cities of the first class,” as amended March 2d, 1870, granting powers to the city council, empowers it, (Laws of 1870, page 103, clause 25,) “ To provide by ordinance for the election of “ city officers, and prescribe the manner of conducting “ the same, and the returns thereof, and for deciding “ contested elections in any manner not in conflict with “ existing -laws.

¶7This section in terms empowers the city council to act as a board of canvassers, in which capacity it looks only at the returns of the judges of election; and also, when an election is contested to hear and determine such contest, and in that capacity can take testimony and inquire into any such wrongs and errors as by the general election law are grounds of contest. Tribunals for contested election cases are common to all States. We have one tribunal for contested elections of State officers; one for members of the Senate and House of Representatives; one for county and township officers; and by this section, and a similar one in the act to incorporate cities of the second class, one for city officers. But it is claimed that this delegation of power to the city council is void because the decision of a contested election case is an exercise of judicial power, and the constitution provides, .(Art. 3, §1,) that, “ The judicial power of the State shall be vested in a supreme court, district court, probate court, justices of the peace, and suck other courts inferior to the supreme court, as may be provided by law,” and the city council is not in name or fact a court. We think the error in the argument lies in the last proposition. True, *65this city council is nowhere in the charter, called a “ court;” but when sitting to hear and determine a contested election case it is pro tanto a court. Like any other tribunal created by our statutes to hear and determine contested election cases, it has power to subpoena witnesses, administer oaths, take testimony, and pronounce judgment. General Stat., pp. 422, 427. Malone v. Murphy, 2 Kas., 261: The State, ex rel., v. Sheldon, 2 Kas., 322.

¶8But again, it is urged that the constitution gives original jurisdiction in quo warranto to the supreme court, and that the legislature have not power to limit or restrict that jurisdiction. It seems to us clear, however, that giving to this court original jurisdiction in no way restrains the legislature from giving like original jurisdiction to other tribunals. It would be different if exclusive original jurisdiction was given to this court. So also a different question would be presented if the legislature should attempt to vest exclusive original jurisdiction in some tribunal other than this. We see then no reason why this power may not be delegated to the city council. Having been so delegated, and the plaintiff having appealed to it and o iained its decision, we deem him concluded thereby.

¶9For this reason also, the judgment of the district court should be affirmed.