| Ky. Ct. App. | Feb 1, 1899
delivered the opinion oe the court.
At the November election, 1897, appellee, E. H. Kenner* waS a candidate for clerk of the Fleming County Court. By the returns of the election, as the vote was counted by the precinct officers, appellee received 1,900 votes, and his opponent, George P. Dudley, 1,897 votes; but there were twenty disputed ballots returned with the poll books, which were opened by the County Canvassing Board, who counted seven of these ballots for Dudley, and two for appellee, making the result stand, for appellee 1,902 votes, and for Dudley 1,904 votes, and they accordingly issued the certificate of election to Dudley on November 5, 1897. Thereafter, on November 13, appellee filed his petition for a mandamus against the County Canvassing Board to recount the votes and issue to him the certificate of election; alleging that the disputed ballots counted for Dudley could not be legally counted, and that he had received a majority of the votes cast. On the hearing of this petition the Circuit Court held that three of the disputed ballots should be counted for Dudley, and One for appellee, which would give Dudley 1,900 votes, and appellee 1,901 votes; and he thereupon awarded a mandamus requiring the County Canvassing Board to meet again and recount the vote pursuant to-his judgment, and issue a certificate of election to appellee. To this judgment they excepted, and have prosecuted this appeal to this court, insisting that the Circuit Court co.uld not by mandamus control them as to how they shall decide upon the validity of the disputed ballots.
It will be observed that the Canvassing Board met as provided by law, and acted upon the returns made to them. There is no complaint of their failure to discharge any duty imposed upon them. The complaint is simply that they decided wrong, and counted ballots which they ought
This decision only ' applied a rule often announced by this court. Thus in Louisville v. Keen, (18 B. M., 17), it was said: “The doctrine seems to be well settled that, when the inferior tribunal or the subordinate public agents have a discretion over the subject-matter, that discretion can not be controlled by mandamus, although it may have been improperly exercised. If there be a refusal to act upon the subject on to pass upon the question on which such discretion is to be exercised, then the writ may be used to enforce obedience to the law; but, when the question has been passed upon, it will not be used for the purpose of correcting the decision.”
In Dickens v. Cave Hill Cemetery., 93 Ky., 389, [20 S.W., 283" court="Ky. Ct. App." date_filed="1892-10-06" href="https://app.midpage.ai/document/davis-v-jenkins-7132712?utm_source=webapp" opinion_id="7132712">20 S. W., 283], the court said: “It is well settled by this court (see Cassidy v. Young, 92 Ky., 227" court="Ky. Ct. App." date_filed="1891-11-07" href="https://app.midpage.ai/document/cassidy-v-young-7132574?utm_source=webapp" opinion_id="7132574">92 Ky., 227, [17 S. W., 485]) that, to entitle a party to this writ, the officer’s duty
Innumerable other similar quotations may be made; and in Anderson v. Likens, after a very careful consideration, this court came- to the conclusion that the duties required of the County Canvassing Board in passing upon contested ballots, under our present statute, are not wholly ministerial, but involve judgment and discretion, and that an error of theirs in deciding upon these ballots can not be corrected by mandamus. We feel constrained to adhere to this ruling, so' recently made, and after a thorough examination of the question by the whole bench. The statute provides that no ballot shall be rejected “for any technical error which does not make it impossible to determine the voter’s choice.” Ky. Stat. section 1471. In determining what was the voter’s choice, nice questions often arise, requiring both discretion and judgment; and we do not think it was contemplated by the statute that county officers, after exercising their best judgment in determining these matters, should be liable to the cost of a mandamus proceeding for an error of judgment on their part. In such a proceeding the opposing candidate is not a party to the suit, and has no right to control the defense or offer evidence. The suit is simply against the officers for an alleged failure to do their duty. After this suit is over, where a mandamus is awarded directing a new count, the whole question can be brought up again before the Contesting Board. It seems to us a wiser and sounder
It is insisted that Anderson v. Likens is in conflict with Clark v. McKenzie, 7 Bush, 523" court="Ky. Ct. App." date_filed="1870-02-01" href="https://app.midpage.ai/document/clark-v-mckenzie-7379023?utm_source=webapp" opinion_id="7379023">7 Bush, 523; Howes v. Walker, 92 Ky., 258" court="Ky. Ct. App." date_filed="1891-11-17" href="https://app.midpage.ai/document/howes-v-walker-7132579?utm_source=webapp" opinion_id="7132579">92 Ky., 258, [17 S. W., 576]; and Houston v. Steele, 98 Ky., 596" court="Ky. Ct. App." date_filed="1896-01-24" href="https://app.midpage.ai/document/houston-v-steele-7133308?utm_source=webapp" opinion_id="7133308">98 Ky., 596, [34 S. W., 6]. The cases of Clark v. McKenzie and Howes v. Walker were decided under'a statute which imposed upon the board only ministerial duties, and gave them no discretion. These cases were decided under the viva -voce system of voting before voting by ballot was introduced in this State. The statute then in force only empowered them to foot up the returns, and give a certificate to the candidate receiving the highest number of votes; but our present statute, as construed by this court, has imposed upon them the additional duty of examining and passing upon the validity of the disputed ballots, and, in determining from the ballots what the voters’ intentions were, they must in many cases exercise nice judgment and discrimination.
In Houston v. Steele, it will be seen from the opinion (98 Ky., 599, [34 S. W., 6]), that an answer was filed without objection to the form of the action, and this court reached the same conclusion as the County Board had reached. The case was considered on the merits because the parties presented it in that way and the result was the same as if it had been held that mandamus did not lie. The reasoning of the opinion sustains the contention of appellee, but upon reconsideration it was not satisfactory to the court. It was, in effect, overruled in Anderson v. Likens, though not referred to in that opinion; and, so far it is inconsistent with that and this opinion, it is now overruled.