138 Ky. 277 | Ky. Ct. App. | 1910
-Reversing.
Appellant and appellee were two of eight candidates at the last November election for the six offices of councilmen in the city of Berea, a city of the fifth class with only one voting’ precinct^ There were four emblems upon the official ballot, viz., the' Democratic, the Republican, the Lincoln Republican, and the Citizens’ ticket. Under the Democratic emblem, there was a candidate for circuit judge and for each of the county offices, but none for any of The city offices of Berea. Under the Republican emblem there was no candidate for circuit judge, and only a partial list of candidates for the county offices, but there was a full list of candidates for the offices of the city of, Berea, including six candidates for councilmen. There were no candidates under the Citizens’ ticket for the district or any of the county offices, but there Avere three for city offices, to wit, one for police judge, and appellant and one other for councilman. All the emblems appeared in a row at the top of the ballot, and were printed as though there was a full ticket under each emblem; a blank space being left in each ticket where no candidate had been nominated. There were only six councilmen to be elected, and there were eight candidates, six of whose names appeared under the Republican device, appellee’s being one of them, and two of whose names appeared under the deA’ice of the Citizens’ ticket, appellant’s being one of them.
At the close of the polls, the election officers counted the votes, and certified the result to be that appellant had received 123 votes and appellee 122. They, however, placed in the doubtful envelope four ballots, after having numbered them so as they might
Appellant, Baker, filed a petition of contest, setting up two grounds: First, that the county board had improperly' deducted the two votes in the doubtful envelope from his votes; second, that nine voters, naming them, who were not legally entitled to vote, had voted for Dinsmore, and prayed that their votes
There are three questions to be considered in determining this case: First, whether the court erred in refusing to throw out any or all of the ten alleged illegal votes; second, whether the court erred in opening the ballot box and recounting the ballots therein over the objections of appellant; third, the question of the four, contested ballots, and for whom they should have been counted, if counted at all.
In regard to the first proposition, the testimony tends strongly to create a suspicion that at least some of the 10 alleged illegal voters were not residents and entitled to vote at the election, and that they voted for appellee, but the most that can be said of the testimony is that it creates a suspicion in these respects. There is nothing in it to justify a court to adjudge that they were illegal voters or that they voted for appellee. Therefore the lower court
With reference to the second contention: that is, that the lower court had no legal right to open the ballot box and recount the ballots over the objections of appellant until it was satisfactorily proved that the ballot box had been kept as required by the statutes, that the ballots had not been tampered with since the election, and that the ballots offered in evidence were the identical ones cast. Under the authority of Edwards v. Logan, 114 Ky. 312, 70 S. W. 852, 75 S. W. 257, 24 Ky. Law Rep. 1099, 25 Ky. Law Rep. 435, this is indispensable. The record is silent upon this question. In other words, the record does not show that these requirements were observed before the delivery of the box containing the ballots counted to the .court; nor does it show anything with reference to the condition of the box or the preservation of the ballots, or whether the ballots were found in the box in the condition which the law requires the election officers to put them in. In the case of Edwards v'. Logan, supra, the court said: “But, before a recount of the ballots should be allowed to rebut the presumption of the correctness of the official returns, it should be proved satisfactorily that the ballots had not been tampered with since the election, and that those offered in evidence are the identical ones cast. * * * That presumption of the integrity of the ballots cannot attach, however, until it is first shown that they came from the officer whose duty it is by law to have and preserve them, and that they are apparently in the condition of preservation prescribed by the statute.” We understand from this opinion that these facts must be shown by the party seeking to have the court open the box and recount
We will now consider the four contested ballots. The lower court was correct in allowing appellant the vote which was cast by placing the stencil in the circle under the Democratic device and in the circle under the Citizens’ ticket device. There were no opposing candidates under these two devices, and it was evidently the intention of thé voter to vote for all of the candidates under the two devices. We are also of the opinion that the court did not err in deducting from appellant’s votes the votes of the two electors who placed the stencil in the circle undér .the Republican device and also in the circle under the Citizens’ ticket device. It is impossible to ascertain for whom these two voters intended to cast their votes, as there were candidates under the Republi
For these reasons, the judgment of the lower court is reversed and remanded, with directions to have the board of election commissioners for the county certify the result of the vote between these parties, as herein adjudged, to the common council of the town of Berea with direction for it to determine by lot, which is entitled to the office, as required by law.