
    William Steele v. Gilbert Martin.
    1. Courts for Trial of. Contested .Elections. The provisions of the election law, under and by which courts may be constituted for the trial of contested elections, / * are authorized by the-constitution, and are valid.
    
      %'" Irregularities do not Vitiate-Proceedings. When a court for contesting an elec* tion met pursuant to the notice required by law, and considered some questions connected with and preliminary to the case to be tried, and adjourned to the next ' Iday without-a formal calling of the case for the trial of which they were so convened, but on the said next day they met, pursuant to such adjournment, and took the proper oath of office, and before proceeding to try the case on the merit3, held, that their subsequent proceedings were not affected or vitiated by such adjournment, or by the delay in formally^calling the case for trial, or in taking the oath.
    3. Notice of Contest — Sufficiency of. It is not.necesqary to a good notice under section 92 of chapter 36, General Statutes, that it should contain an allegation that the cause of contest therein named would have changed the result of the election proposed to be contested.
    4. Canvass of Votes — Duty of Commissioners — Right to Office. — [See note, and authorities cited, post, page 439.]
    
      from Labette District Court.
    
    At the general election held on the 2d day of November 1869, Steele and Martin were opposing candidates for the office of county commissioner for the First Commissioner District of Labette county. On the 5th of November the board of county commissioners met as a board of county canvassers, and on the canvass of votes by them for commissioner for said Commissioner District No. 1, they declared that said William Steele had received 148 votes, and said Gilbert Martin had received 51 votes; and they thereupon determined that said Steele was elected such commissioner, and their clerk issued to him the usual certificate of election.
    In making the said canvass the board of commissioners rejected the poll-books returned from three of the election precincts, and refused to count and canvass the votes cast in said precincts, and returned in said poll-books, for the reason that some of said poll-books were not signed by all the judges and clerks of election, and in others blanks were unfilled, and other slight irregularities appeared. In these three precincts Steele received 41 votes, and Martin received 224 votes — making the entire vote for Steele, in the county, 189, and the entire vote for Martin 275, and showing a maj ority for Marlin of 86 votes.
    On the 20th of November Martin made and filed in the office of the Probate Judge an affidavit, showing that he was on the 2d of November a qualified elector of Labette county, and alleging that at the general election held on that day he was legally elected to the office of county commissioner for District No. 1, setting up the facts above stated, and alleging “ that the said commissioners in canvassing the votes cast at said election, rejected and refused without cause to count the votes cast at the precincts of Chetopa, Jacksonville and Ellston, which said votes would have changed the result of said election had the same been canvassed. Whereupon, and by reason of the premises, the said Gilbert Martin says he shall contest the election of said William Steele,” etc.
    On the 24th of November the Probate Judge issued a notice directed “To the Sheriff’ of Labette county,” commanding such sheriff to notify Steele that Martin had commenced proceedings to contest said election, on the ground that said board of commissioners had illegally rejected and refused to count the votes cast in and returned from the' precinct of Chetopa, in Richland township, and the precincts of Jacksonville and Ellston; and requiring said sheriff to notify said Steele, “ that the “ trial of said contest will be held at the court-house in “ Oswego, in said county, on the 13th day of December “ 1869, at 6 o’clock a. m., before W. H. Wbjtlock, Probate “Judge for said county, assisted by Enos Eeed and Gf. P. “Peters, associate judges — and you are hereby com- “ manded to notify said Enos Eeed and G. P. Peters to “ be and appear at the time and place aforesaid.”
    The record shows that said court for the trial of said contest met at the time and place designated; that all the members were present; that “orders of injunction” granted by the Judge of the Seventh Judicial District were served on them, in four other eases of contest, (also' noticed for hearing on that day,) restraining and enjoining them from proceeding in said other cases; and, after deciding that said injunction orders did not affect the contested case of Martin against Steele, adjourned until the next morning; that the court met the next day, and the members thereof were duly sworn, and proceeded to hear the case. Steele appeared and moved to dismiss the case because the court was not legally constituted; because the court had no jurisdiction; and because the “ notice” did not state a legal cause of contest. The court overruled said motion, and proceeded to try the caso, and on the 15th of December gave judgment in favor of Martin, declaring him to be duly elected to said office of commissioner. Steele excepted, and removed the case by petition in error to the district court.
    The case was heard at the April Term, 1870, of the Labette District Court, when it was by said district court “ ordered and adjudged that the judgment of the said “ court organized to try the election contest betweep the “ said plaintiff and the said defendant, be, and the same “ is, hereby affirmed, with costs.”
    To such judgment of affirmance Steele excepted, and now brings the case to this court by petition in error.
    
      F. A. Bettis, for plaintiff' ¡in error:
    1. The Probate Judge is an officer provided for by the Constitution. His duties and powers are defined thereby. The power to try contested elections is not among them. The legislature had not the power to extend his jurisdiction, nor to use it for other purposes than those defined by the constitution. In the organization of the court for the trial of contested elections, he takes his seat as a. private citizen, and his office as Probate Judge confers no authority upon him in said court. That part of the law which authorizes him to issue process under the seal of the probate court, and as Probate Judge, in such cases, is clearly unconstitutional.
    The Legislature is authorized to create “ inferior courts;” but is this court erected, or only “ authorized” by law? All judges must derive their-authority from the State, by some commission warranted by law. Bac. Abr., Tit. Courts, vol. 2, p. 619.
    These Judges, (Probate and his associates,) only derive their authority and their commission from the whim of an individual. They are called into existence by any person, at any time. Courts without existence, judges without commissions, were never contemplated by the constitution, and are unknown, outside of the statute for the contest of elections. ¥e claim that this pretended court was without authority; that not coming into existence by any proper warrant or commission, its acts are void.
    2. The District Court erred in affirming the judgment. The judgment of the court below was reeking with error. The record shows that Steele was notified that the trial would be had on the 13th of December. On that day the Probate Judge and two citizens met together, but took no step toward organization. The case was not called. On the 14th, they again met, and then attempted to organize. But being a court of limited jurisdiction, having no general terms, its whole power, authority, and time for meeting were confined and fixed by the notice: § 92, ch. 36, Gen. Stat. The court only had an existence by virtue of this notice, and failing to organize at that time, it was 'still-born.
    
      It appears from the record that courts for the trial of certain other contests of election did meet on that day, but did not organize. Such court, though composed of the same parties, is a separate and district court for each case. As the notice in this case was the sole warrant of authority by which the court could act, it could not adjudicate the case at any other time, and having failed to convene, organize, and call the case on the 13th, the notice was functus officio, and the court for the trial of the case of “Martin v. Steele” consequently never had an existence.
    3. But, if a legal court, proper jurisdiction did not attach:
    The notice was process, and did not run in the name of the State of Kansas. §17, Art. 3,.Cons.*
    The notice did not state a sufficient cause of action. Ch. 36, § 92, Gen. Stat.
    The cause of action set forth in the notice is, “ that the board of county canvassers rejected and refused to count the votes cast in certain townships.” This is not sufficient. The sixth ground for contest mentioned in § 85, ch. 36, under which this action was'brought permits the contest to take place, “ For any error or mistake of the board of county canvassers in counting or canvassing the vote, if the error or mistake would affect the result.” The notice simply alleges the rejection, but does not allege that thereby the result was affected.
    4. The record shows that Steele was in fact elected. The “notice” issued by the Probate Judge alleges the rejection of the returns of the “ voting precinct of Chetopa in Richland Toion'ship.” The affidavit filed by Martin alleges the rejection of the poll-book of “ Chetopa precinct,” saying nothing about “Kichland Township.” On the trial Martin offered the poll-books of “ Richland Township,” which were admitted, showing “ 147 votes” for Martin in said township ! It is this kind of figuring which elects Martin. For anything appearing to the contrary, the “ 147 votes” counted for Martin on the poll-books of “ Richland Township” had been previously counted and allowed him by the board of county commissioners. Deduct these 147 votes from the number allowed by the court to Martin, and Steele is elected by a majority of 61.
    5. The district court erred in giving judgment for costs, against Steele. The judgment of the court below is not for costs, and the power of the district court only extended to the affirmance or reversal of the judgment below.
    
      Bishop §• Perldns, and J. H. Crichton, for defendant in error. [No brief on file.]
   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.:

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.

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.

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.  