The opinion of the court was delivered by
Valeíitine, J.:
This is an application for a peremptory writ of mandamus to compel the defendants, who are the County Commissioners of Neosho County, to hold their offices at the town of Erie, which is claimed to be the county-seat of said county.
i. maudajiks, title to action ; I. The title of this action under our present code, (that of 1868) is probably wrong. It should be Joseph A. Wells plaintiff, instead of “ The State of Kansas, on the relation of Joseph A. Wells, plaintiff.” The remedy of mandamus is now wholly under the code of civil procedure — chapter 80, art. 33, Gen. Stat. of 1868. Under said code there is but one form of action, called a “ civil action;” (§ 10.) “ The party complaining shall be known as the plaintiff, and the adverse party shall be known as the defendant;” (§ 11.) “ Every action must be prosecuted in the name of the real party in interest, except as otherwise provided,” etc.; (§ 26.) The statutes do not anywhere otherwise provide; that is, they do not anywhere provide that an action of mandamus [533]*533may be prosecuted in the name of the State when prosecuted by a private individual. The party prosecuting in such an action is always called the “ plaintiff ” in said code, and never the relator; (§§695, 697.) The adverse party in such an action is always called the “ defendant” in said code, and never the respondent: (§§ 690, 693, 695.) After the writ and answer in an action of mandamus, the other proceedings are conducted in the same manner as any other civil action; (§ 696.) And, “ if judgment be given for the plaintiff he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in other civil actions, and costs;” (§697.) But, as no question has been raised on' this point, we will pass it without further consideration.
II. The main object of this action is to have the court determine whether the town of Erie, or the town of Osage Mission, is the county-scat of Neosho county. At the commencement of this action an alternative writ was issued; afterwards the defendants answered, and the action was then tried upon the said writ and answer. Many questions were raised in this case which we do not consider of sufficient importance to notice in this opinion — some being raised during the trial, and some before the trial.
The plaintiff founds his claim that Erie is the county-seat of Neosho county, upon a certain election held in said county on the 28th day of December, 1869. The returns of their election were duly canvassed by the then board of county commissioners on the 1st day of January, 1870 ; and as a result of said canvass the commissioners declared that Erie was the county-seat. According to that canvass, Erie received 2,587 votes; Osage Mission, 1,965 votes; total, 4,552 votes — the majority for Erie [534]*534being 622 votes. The present board of commissioners of said county refuse to recognize the validity of said election, and also claim that even if said election was valid, Osage Mission received a majority of the legal votes.
It is in evidence before us, that at the time of said election the whole number of legal voters in Neosho county was only about 1700 — 887 voters less than are said to have voted for Erie — 265 voters less than are said to have voted for Osage Mission, and but little more than one-third as many as are said to have voted for both places; and showing that there were about 2,852 illegal votes cast at that election. The principal frauds were perpetrated at Erie and Osage Mission, and in Lincoln township, or rather in Lincoln township. After the election, and before the canvass of the voters, the poll-books were tampered with, and many new names were fraudulently added to the list of voters in said poll-books.
2. canvass or votes — minisSlr110tju' [535]*5353. Contest ot elecd°mus“aAÍtof constmec. [534]*534The first question that we shall consider is, whether this court has the power under the law, to go behind the said canvass of the county commissioners, and u 1 allow these frauds to be shown. It will be admitted by the plaintiff, that the action of the county commissioners in canvassing said election returns was purely ministerial, and not judicial: (2 Ind., 23; 14 Mich. 362; 14 Barb., 259; 30 id., 588; 8 N. Y. 67; 15 Ill., 492; 1 Dutch., (N. J.,) 354; 4 Wis., 420, 567; 7 Iowa, 186, 390; 10 Mo., 629;) and therefore that their action is not final or conclusive, but may be inquired into directly or collaterally, unless chapter 27 of the laws of 1869, (page 101,) prohibits the same from being done. Before the passage of that act, the power of the supremo court [535]*535was ample in the premises; but by its passage it is contended, that said power was taken away; not by express words however, but indirectly, as is claimed ^ ' ** 7 hy plaintiff's counsel. Their reasoning upon question jg substantially as follows : First : in an action of mandamus neither party can set up any claim or defense for which he has another plain and adequate remedy; second, the defendants in this case are electors of said Neosho county; third, said act gives to any elector of the county, for the space of twenty days after the election, a right to contest any county-seat election; therefore, these defendants had another “plain and adequate remedy,” and therefore they cannot set up the defense of fraud in this election, but must abide the result of the canvass. This reasoning is defective in several particulars. First: The proposition that neither party can set up any claim or defense, for which he has another plain and adequate remedy, does not apply with the same force to the defendants in an action of mandamus, as it does to the plaintiff. Second: The defendants in this case are not sued simply as electors, but are sued as, county commissioners; it is asked to compel them to perform an act, not as individual electors, but as public officers, representing all classes of the community, whether such classes are electors or not. Third: The said act gives only twenty days in which to commence the proceeding to contest the election; and if the election has been carried by fraud, and the fraud not discovered for more than twenty days, or if the election is invalid for any other"reason, and the cause of invalidity has not been discovered for more than twenty days, the party desiring to show the invalidity has really never had any adequate remedy under the statute; and after [536]*536the twenty days have elapsed, no person, whether he be an elector or not, has any remedy of any kind under the statute. With respect to the second proposition, we may further remark, that said chapter 27 * gives to the county commissioners a right to contest a county-seat- election; and from this fact it is inferred that said act takes away the right of such elector to question the validity of such an election in any other manner. But this reasoning fails when it comes to be applied to such persons as are not electors of the county; for instance, persons owning real estate in the county, or otherwise interested in the county, and who are beneficially interested in a particular place being the county-seat, but who are women, or minors, or persons disqualified from voting under section two (as amended,) of article five of the constitution, or perhaps arc - non-residents of the county.
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The opinion of the court was delivered by
Valeíitine, J.:
This is an application for a peremptory writ of mandamus to compel the defendants, who are the County Commissioners of Neosho County, to hold their offices at the town of Erie, which is claimed to be the county-seat of said county.
i. maudajiks, title to action ; I. The title of this action under our present code, (that of 1868) is probably wrong. It should be Joseph A. Wells plaintiff, instead of “ The State of Kansas, on the relation of Joseph A. Wells, plaintiff.” The remedy of mandamus is now wholly under the code of civil procedure — chapter 80, art. 33, Gen. Stat. of 1868. Under said code there is but one form of action, called a “ civil action;” (§ 10.) “ The party complaining shall be known as the plaintiff, and the adverse party shall be known as the defendant;” (§ 11.) “ Every action must be prosecuted in the name of the real party in interest, except as otherwise provided,” etc.; (§ 26.) The statutes do not anywhere otherwise provide; that is, they do not anywhere provide that an action of mandamus [533]*533may be prosecuted in the name of the State when prosecuted by a private individual. The party prosecuting in such an action is always called the “ plaintiff ” in said code, and never the relator; (§§695, 697.) The adverse party in such an action is always called the “ defendant” in said code, and never the respondent: (§§ 690, 693, 695.) After the writ and answer in an action of mandamus, the other proceedings are conducted in the same manner as any other civil action; (§ 696.) And, “ if judgment be given for the plaintiff he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in other civil actions, and costs;” (§697.) But, as no question has been raised on' this point, we will pass it without further consideration.
II. The main object of this action is to have the court determine whether the town of Erie, or the town of Osage Mission, is the county-scat of Neosho county. At the commencement of this action an alternative writ was issued; afterwards the defendants answered, and the action was then tried upon the said writ and answer. Many questions were raised in this case which we do not consider of sufficient importance to notice in this opinion — some being raised during the trial, and some before the trial.
The plaintiff founds his claim that Erie is the county-seat of Neosho county, upon a certain election held in said county on the 28th day of December, 1869. The returns of their election were duly canvassed by the then board of county commissioners on the 1st day of January, 1870 ; and as a result of said canvass the commissioners declared that Erie was the county-seat. According to that canvass, Erie received 2,587 votes; Osage Mission, 1,965 votes; total, 4,552 votes — the majority for Erie [534]*534being 622 votes. The present board of commissioners of said county refuse to recognize the validity of said election, and also claim that even if said election was valid, Osage Mission received a majority of the legal votes.
It is in evidence before us, that at the time of said election the whole number of legal voters in Neosho county was only about 1700 — 887 voters less than are said to have voted for Erie — 265 voters less than are said to have voted for Osage Mission, and but little more than one-third as many as are said to have voted for both places; and showing that there were about 2,852 illegal votes cast at that election. The principal frauds were perpetrated at Erie and Osage Mission, and in Lincoln township, or rather in Lincoln township. After the election, and before the canvass of the voters, the poll-books were tampered with, and many new names were fraudulently added to the list of voters in said poll-books.
2. canvass or votes — minisSlr110tju' [535]*5353. Contest ot elecd°mus“aAÍtof constmec. [534]*534The first question that we shall consider is, whether this court has the power under the law, to go behind the said canvass of the county commissioners, and u 1 allow these frauds to be shown. It will be admitted by the plaintiff, that the action of the county commissioners in canvassing said election returns was purely ministerial, and not judicial: (2 Ind., 23; 14 Mich. 362; 14 Barb., 259; 30 id., 588; 8 N. Y. 67; 15 Ill., 492; 1 Dutch., (N. J.,) 354; 4 Wis., 420, 567; 7 Iowa, 186, 390; 10 Mo., 629;) and therefore that their action is not final or conclusive, but may be inquired into directly or collaterally, unless chapter 27 of the laws of 1869, (page 101,) prohibits the same from being done. Before the passage of that act, the power of the supremo court [535]*535was ample in the premises; but by its passage it is contended, that said power was taken away; not by express words however, but indirectly, as is claimed ^ ' ** 7 hy plaintiff's counsel. Their reasoning upon question jg substantially as follows : First : in an action of mandamus neither party can set up any claim or defense for which he has another plain and adequate remedy; second, the defendants in this case are electors of said Neosho county; third, said act gives to any elector of the county, for the space of twenty days after the election, a right to contest any county-seat election; therefore, these defendants had another “plain and adequate remedy,” and therefore they cannot set up the defense of fraud in this election, but must abide the result of the canvass. This reasoning is defective in several particulars. First: The proposition that neither party can set up any claim or defense, for which he has another plain and adequate remedy, does not apply with the same force to the defendants in an action of mandamus, as it does to the plaintiff. Second: The defendants in this case are not sued simply as electors, but are sued as, county commissioners; it is asked to compel them to perform an act, not as individual electors, but as public officers, representing all classes of the community, whether such classes are electors or not. Third: The said act gives only twenty days in which to commence the proceeding to contest the election; and if the election has been carried by fraud, and the fraud not discovered for more than twenty days, or if the election is invalid for any other"reason, and the cause of invalidity has not been discovered for more than twenty days, the party desiring to show the invalidity has really never had any adequate remedy under the statute; and after [536]*536the twenty days have elapsed, no person, whether he be an elector or not, has any remedy of any kind under the statute. With respect to the second proposition, we may further remark, that said chapter 27 * gives to the county commissioners a right to contest a county-seat- election; and from this fact it is inferred that said act takes away the right of such elector to question the validity of such an election in any other manner. But this reasoning fails when it comes to be applied to such persons as are not electors of the county; for instance, persons owning real estate in the county, or otherwise interested in the county, and who are beneficially interested in a particular place being the county-seat, but who are women, or minors, or persons disqualified from voting under section two (as amended,) of article five of the constitution, or perhaps arc - non-residents of the county. It will hardly be claimed that the act of 1869 takes away the right of such persons to question the validity of a county-seat election, except by contest under that act; for if it does, then such persons will have no-remedy at all. It seems to us, that it will be conceded that county commissioners represent all classes of society, whether such classes be voters or not; and if they do, then it must be conceded that whenever they are sued as county commissioners, whenever they are sued for the purpose of compelling them to perform some official act, they may set up any defense that any class or person whom they represent could set up were such class or person the defendant. It will hardly be claimed that one person may legally compel the county commissioners to perform [537]*537an act which another person may legally prohibit them from doing.
•i. writ of mantiMof’cmiT.6' III. But aside from this, the writ of mandamus lies to a great extent within the discretion of the court where the application is made: People, ex rel. Duff, v. Booth, 49 Barb., 31; People, ex rel. Hackley, v. Cr. Ag. Board, id., 259; People, ex rel., v. Canal Board, 13 id., 450; Ex parte Flemming, 4 Hill., 581, 583; Fish v. Weathwax, 2 Johns. Cases, (2d Ed.,) 217, note, § 4, and cases there cited; Van Rensselaer v. Sheriff of Albany Co., 1 Cowen, 501, 512; People, ex rel., v. Solomon, 51 Ill.; Moses on Mand., 18; Bacon Abr., Mandamus, (E;) 1 T. R., 331, 396, 425; 2 T. R., 336; People v. Hatch, 33 Ill., 17, 133, 140; 2 Redf. on Railw., 258.
Originally the writ of mandamus was a prerogative writ, solely within the discretion of the court; and it still so far partakes of its original nature, that the court may exercise a considerable degree of discretion in granting or refusing it, and in hearing evidence for and against it.
r>. canvass not oolulswifi’inquite into the election usen. Admitting, for the purposes of this argument, that the court will ordinarily refuse to go behind the canvass of the board of canvassers, yet whenever it can be shown that the result of the canvass was procured through fraud iu the election, the court would not only go behind the canvass, but it would be its duty 3 so. ^ ke an abuse of judicial discretion not to do so. The court should exercise enough of judicial discretion in such cases to prevent any litigant from obtaining through a fraudulent election what in j ustice he has no moral right to have. It is our opinion that, in all actions like this, courts generally should, and in all cases may — exercising a sound judicial discretion— [538]*538go behind the canvass of the election returns, and exam-no for themselves into the validity of the election.
g. wheie writ of Mandamus refused. IV. The next question for us to consider is, whether Erie, or Osage Mission, received a majority of the legal votes east at said election. This question is surrounded with great and perplexing difficulties. The . -, ' n , n a r r commissioners canvassed and counted 4,552 votes. Of these, according to the evidence, only about 1700 were legal, and 851 were a majority of the same. Of the votes canvassed and counted, 2852 were illegal and fraudulent. But suppose that there were 2,000 or 2500 legal votes cast, (and this is probably more than any one will claim,) and still the question would not be relieved of much of the embarrassing difficulties that encumber it; for still there would be 2500, or 2,000 illegal votes. Each plaqe received legal votes; and each place received many illegal and fraudulent votes. But how many of each, each place received, cannot be determined with any degree of accuracy. Whether we are bound in this case, under the circumstances, to determine the question, is, to say the least, very questionable. We think wo are not bound to do so. ‘Courts were established principally for the protection of innocence and justice, and not for the protection of supposed rights, founded upon fraud and injustice. Courts will investigate to the very foundation, and examine-to the utmost extent, every question of law and of fact, and every circumstance connected with a case, so as to do justice to the innocent and deserving. But when two parties (and we do not intend to apply this to the immediate parties in the case, but to the towns of Erie and Osage Mission,) who have both by their fraudulent and wiongful acts put vast obstacles in the way of justice, and encumbered the case [539]*539with embarrassing difficulties, invoke the aid of courts, the courts will not feel very much inclined to assist either to a very great extent, and especially not in an action of mandamus where so much rests in the discretion of the court. • Courts will seldom in such cases weigh the claims of the parties in golden scales, and give a decision on a bare preponderance of evidence. The right of a party in such a case, if he expects a decision, should be clear, beyond all reasonable doubt. Neither party in this action has made a clear case. Neither party has shown a clear right, beyond a reasonable doubt, to the county-seat of Neosho county; and neither party is in a condition to demand, as a matter of right, anything from this court; and therefore we shall leave the parties where we found them. If the people of Neosho county had no other speedy and adequate means of determining where their county-seat should be, we would .probably in our discretion, be willing to determine the question now presented to us on a bare preponderance of the evidence; hut even then we should be very reluctant to say that any rights could accrue under such an illegal and fraudulent election as the one now under consideration seems to have been. But as the people can soon determine by a legal election where their county-seat shall be, (Gen. Stat., 296,) we shall leave the question entirely with them.
The peremptory writ of mandamus is refused.
All the Justices concurring.