ballot box, pen

the progress of any election in this Territory, or after the closing Bresking open of the polls, and before the ballots are counted and the result alty. ascertained, break open or violate the seals or locks of any ballot box in which ballots have been deposited at such election, or who shall obtain undue possession of such ballot box containing such ballots, and conceal, withhold or destroy the same, or who shall fraudulently or forcibly add to or diminish the number of ballots legally deposited, and all persons aiding or abetting therein, shall be adjudged guilty of a misdemeanor, and, on conviction thereof, shall be punished by imprisonment, not exceeding three years, or by fine, not exceeding one thousand dollars.

and justice of the

peace.

SEC. 84. It shall be the duty of every inspector of elections, Duty of inspector and of every sheriff, constable and justice of the peace, knowing or having reason to believe that an offense, punishable under the provisions of this chapter, has been committed, to cause the offender forthwith to be arrested, and to give information thereof to the county attorney of the county where the offense was committed, without delay, and such attorney shall adopt effectual measures for the conviction of all persons who shall violate the provisions of this chapter; and, in such case and all others, the county attorney shall receive the fees allowed prosecuting attor

neys.

grand jury.

SEC. 85. It shall be the duty of all courts having cognizance Court to charge thereof, to charge the grand jury at each term to make presentment of all offenses committed, within their respective counties, against the provisions of this chapter.

blank poll book,

SEC. 86. The clerks of the tribunals transacting county busi- clerk to prepare ness shall prepare and furnish, ten days previous to each election, to the canvassers of each township and ward, in their respective counties, blank poll books, returns and certificates.

SEC. 87. All laws and parts of laws heretofore passed on this subject are hereby repealed.

SEC. 88. This act to take effect and be in force from and after its passage.

A. LARZALERE,

Speaker of House of Representatives.

Approved February 4, 1859.

S. MEDARY,

Governor.

C. W. BABCOCK,

President of the Council.

When an election may be contested.

Incumbent.

What to be held sufficient ground

CHAPTER LXVI.

AN ACT Regulating Contested Elections.

Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas:

SECTION 1. The election of any person, declared duly elected to a county office, may be contested by any elector of the county: First, For mal-conduct, fraud or corruption, on the part of the judges of election, in any township, or of any of the boards of canvassers, or on the part of any member of either of those boards: Second, When the incumbent was not eligible to the office, at the time of the election: Third, When the incumbent has been duly convicted of an infamous crime before the election, and the judgment has not been reversed, annulled or set aside, nor the incumbent pardoned at the time of the election: Fourth, When the incumbent has given or offered any elector, or any judge, clerk or canvasser of the election, any bribe or reward in money, property or thing of value, for the purpose of procuring his election: Fifth, When illegal votes have been received, or legal votes rejected at the polls, sufficient to change the result: Sixth, For any error or mistake in any of the boards of canvassers in counting the votes, or in declaring the result of the election, if the error or mistake would effect the result: Seventh, For any other cause, (though not enumerated above,) which shows that another was the person legally elected.

SEC. 2. The term "incumbent," in this chapter, means the person whom the canvassers declare elected.

SEC. 3. The matter contained in the first ground of contest for setting aside above named, shall not be held sufficient to set aside an election,

election.

In a township.

Court for contest

ed election how ⚫onstituted.

unless the mal-conduct, fraud or corruption be such as to procure or cause the incumbent to be declared duly elected, when he has not received the highest number of legal votes.

SEC. 4. When the misconduct complained of is on the part of the judges of election, in a township, it shall not be held sufficient to set aside the election, unless the rejection of the vote of that township would change the result as to that office.

SEO. 5. The court, for the trial of contested county elections, shall be thus constituted: The probate judge shall be the presiding officer, and the contestant and incumbent may each name a person, who shall be associated with him. But when the probate judge is one of the parties, the county attorney shall pre

side.

act as clerk for

SEC. 6. The county clerk shall be the clerk, of this court, and County clerk to keep all papers and record the proceedings in the election book, contested elecin the manner similar to the record of the proceedings of the

district court. But when the person, who holds the offices of When probate

clerk.

clerk of the district court and of county clerk, is one of the parties judge to appoint in either of those capacities, the probate judge shall appoint a suitable person as clerk for the time being, whose appointment shall be recorded.

Filing of inten

tion to contest within twenty

days after canvass

What it must

Must be sworn to.

SEC. 7. The contestant shall file in the county office, within twenty days after the day when the votes are canvassed, a written statement of his intention to contest the election, setting forth the name of the contestant, and that he is an elector of the coun- state. ty, the name of the incumbent, the office contested, the time of the election, and the particular causes of contest; which statement shall be verified by the affidavit of the contestant, or some other elector of the county, that the causes set forth are true, as he verily believes, but before the probate judge, or in case of his interest, the county attorney is required to take jurisdiction of the contest, the contestant must file with such judge or attorney, a bond, with security, to be approved by said judge or attorney, and conditioned to pay all costs in case the election be confirmed, or the statement be dismissed, or the prosecution fails.

The names of il

given.

SEO. 8. When the reception of illegal, or the rejection of legal al voters to ba votes is alleged as a cause of contest, the names of the persons who so voted, or where votes were rejected, with the township where they voted or offered to vote, shall be set forth in the state

ment.

Precept to be is

SEO. 9. The judge shall then issue a precept containing a copy sued to incumbent of the statement, with a requisition that the incumbent file in the county office a written nomination of one of the judges, as provided in section five, within five days after service of the statement upon him.

SEC. 10. If either the contestant or the incumbent fail to nom- If either fail to nominate, judge to appoint. inate, the probate judge shall appoint for him.

SEC. 11. As soon as the judges are nominated, the probate Fix day for trial. judge shall fix a day for the trial, not more than thirty nor less than twenty days from the notice contemplated in this section, which notice, addressed to the usual officer of the law, shall contain the names of the contestant and the incumbent, and of the judges named by each party, a brief statement of the causes of the contest and the day set for trial.

SEC. 12. The notice shall be served on the incumbent within Notices when to

be served.

Testimony.

Subpoenas to issue

Postponement for

cause.

Proceedings in court.

Not dismissed

for want of form.

Adjournment.

Style and form of
Ber vice, fees, &c.

Place for trial county seat, may adjourn by consent.

Powers of court.

five days, and on the two nominated judges within fifteen days from the day it is issued.

SEC. 13. The testimony may be oral or by depositions, and depositions may be taken on four day's notice, in the same manner and for the causes, as in an action in the district court.

SEC. 14. The probate judge and clerk, as well when interested as otherwise, may issue subpoenas, for witnesses, under the county seal.

SEC. 15. The trial shall proceed at the time appointed, unless postponed for good cause shown by affidavit, the terms of which postponement are in the discretion of the court.

SEC. 16. The proceedings shall be under the control and direction of the court, but shall be assimilated to the proceedings in an action as far as practicable.

SEC. 17. The statement shall not be dismissed for want of form, if the particular causes of contest are alleged with such certainty as will sufficiently advise the incumbent of the real ground of contest. If any part of the causes are held insufficient, they may be amended, but the incumbent will be entitled to an adjournment, if be state on oath that he has matter of answer to the amended causes, for the preparation of which he needs further time. Such adjournment shall be upon such terms as the court deems reasonable, but, if all the causes are held insufficient and an amendment is asked, the adjournment shall be granted on motion and at the cost of the contestant.

SEC. 18. The style and form of process, the officers by whom served, and manner of service of process and papers, and the fees of officers and witnesses, shall be the same as in the district court, so far as the nature of the case permits. The command to a witness may be, to appear at, on- to testify in relation to a contested election, wherein A. B. is contestant and C. D. is incumbent.

SEC. 19. The trial of contested county elections shall take place at the county seat, unless adjourned to some other place within the county, by the concurrence of the court and the parties, which may be done before the commencement of the trial.

SEC. 20. This court shall have all the powers incident to the district court, which may be necessary to the right hearing, conduct and determination of the matter, to compel the attendance of witnesses, to swear them and direct their examination, to punish for contempt in its presence, to adjourn from day to day, and to make any order concerning intermediate costs, and enforce it by attachment.

the atten

witnesses testiagainst him.

mony not to be

SEC. 21. The court or the probate judge may direct the at- Court may retendance of the sheriff or a constable, when deemed necessary. dance of sheriff. SEC. 22. It shall be lawful to require any person called as a witness, who voted at such election, to answer touching his qualifications as a voter; and, if he was not a qualified voter in the township or ward where he voted, then to require him to answer for whom he voted; and, if the witness answers such questions, no part of his testimony on that trial shall be used against him. in any criminal action.

SEC. 23. The courts shall be governed, in the trial and deter- Trial in court. mination of contested elections, by the usual rules of law and evidence, so far as applicable, except as herein otherwise expressed, and may dismiss the proceedings, if all the causes of contest are insufficient and not amended, or for want of prosecution.

SEC. 24. The court shall pronounce judgment, whether the in- Judgment. cumbent or any other person was duly elected, and the person so declared elected will be entitled to his certificate upon qualification. If the judgment be against the incumbent, and he has already received the certificate, the judgment annuls it. If the court finds that no person was duly elected, the judgment shall be that the election be set aside.

Flection set aside

when.

SEC. 25. The nominated judges shall be entitled to receive two Foes. dollars a day for the time occupied by the trial.

costs.

SEC. 26. The contestant and the incumbent are liable to the Who liable for officers and witnesses for the costs made by them respectively; but if the election be confirmed, or the statement be dismissed, or the prosecution fail, judgment shall be rendered against the contestant for costs, and, if the judgment be against the incumbent, or the clection be set aside, it shall be against him for costs also.

costs.

SEC. 27. The probate judge is authorized to issue execution Execution for for costs,. to run against personal property; and a transcript, filed and recorded in the office of the district court, as provided in relation to transcripts from justices of the peace, shall have the same effect as there provided, and execution may issue thereon, against real or personal estate.

bate judge.

SEC. 28. The probate judge shall have authority to carry into Authority of proTect any order of the court, after the adjournment thereof, by attachment or otherwise.

election withheld when.

SEC. 29. If notice of contesting the election of an officer is filed Certificate of before the certificate of election is delivered to him, it shall be withheld until the determination of the contest.