113 Ky. 699 | Ky. Ct. App. | 1902
Orimox or Tin-’ court by
Reversing.
Appellant, \Y R. Bailey, and’ appellee, John B. Thirst, were candidates for the office of county judge of Harlan county at the November election, 1901; Ilurst’s name being printed under the Republican device on the ballot, as-the nominee of that party, and Bailey’s name being printed under an independent device. By the official count, Bailey received 701 voles, and Hurst 540. Hurst filed this action, contesting Bailey’s election. The grounds of contest, as alleged in his petition, are as follows: (1) In the precinct where Bailey lived, known as “No. 3,” it was alleged that the officers of election were all drunk, and committed outrageous acts of fraud and corruption, — electioneering with the voters; leaving the voting place at boon; allowing votes to he taken -while some were absent; selecting persons from the crowd in waiting to vote, and holding the poll open until after 4 o’clock; not counting for contestant a large number of votes that were cast for him; and changing the.result of ihe vote after it had been announced. (21 It was alleged (hat in precinct No. 4 the officers allowed people to congregate within a few feet of the voting place, close' enough to hear what wms said by illerate voters, and inthnidato them. (31- In two other precincts (Nos, 1 and Al), it was alleged that the inspector kept tab of the votes called out, and the judges took no part in the count, except to string the ballots. In these two precincts, and in every other precinct in the county, it wras charged that in
The charges of fraud and corruption on the part of the election officers in precinct No. 3 are not sustained. None of the officers were drunk, although it is shown that the clerk drank, some whisky during the day, and one of the judges also took a drink because he was suffering- from, bowel trouble. The officers were not affected in the discharge of their duties by the whisky they drank, and there js no evidence of fraud or corruption on their part. It is-true, persons were called from the crowd to vote. This was done to save time. As they had only one boo til, the clerk would prepare the ballot for some one in the crowd waiting, selecting as well as he could the nearest man, while the voter was in the booth, and then call the man so selected in to get the ballot as soon as the booth was-empty. It was a very large and cumbersome ballot, extremely difficult to vote; and, from having only one booth, the voters' were necessarily delayed, and there was danger that all could not vote by 4 o’clock. It is not shown that any one did not vote or left the grounds on account of do-
The ballot was a very large one, and covered the entire table. The ballot box was set on a chair by the side of the table. During the forenoon the clerk, in picking up a ballot off the table, knocked'.off of it his pen that he was writing with, and it rolled over on the ballot box, and fell through the slit into the box. They then sent over to a neighbor’s and borrowed a pen. That afternoon precisely the same thing occurred again, the second pen falling into the box. They could not get another pen within several miles, and before they could do this the time for closing the polls would come; so the officers unlocked the box and took out the two pens — not touching a single ballot — and continued the voting. This did not vitiate the vote. The direction of the statute that the ballot box must not be opened must give way to the oilier and more essential direction that the election must lie held; and as they could not go on with the election without the pen, and the box was opened in the presence of all the officers, and by .common consent, and nothing disturbed in the box. no substantial harm was done.
The complaint made as to precinct No. 4 is not sustained by the evidence, nor is the complaint made by appellant as to precinct No. G. It is true, there were some irregularities in all of these precincts, as there nearly always are in an election in some voting places. Rut none of these things affected the result. The rule as to these irregularities is thus well stated in McCrary, Elect., section 228:
The difference between the official count and the recount by the precincts is as follows:
It will thus be seen that the essential difference between the two counts was in precincts 3 and 4. In precinct 3, which was Bailey’s home precinct, he received by the official count 110 votes, and by the recount 2, Avhile Hurst.received in this precinct by the official count 5 votes, and by the recount 12. In precinct. 4 Bailey received by the official
Judgment reversed, with directions to dismiss the petition.