218 S.W.2d 975 | Ky. Ct. App. | 1949
Affirming.
This suit involves a recount and contest of a school board election held November 2, 1946 in Greenup County School District, No. 4. Appellee was declared elected by the election commissioners, and after the recount in this proceeding, he appeared the winner by eight votes.
Appellant's claim to a majority of the legal votes is based on the contentions: (1) the procedure prescribed by the statute for opening and counting certain absentee ballots was not followed, and the secrecy of these ballots was destroyed; (2) the Judge of the election who issued the ballots in the Alcorn Precinct was not a member of the opposite political party to that of the clerk, as required by statute; and (3) the school ballots in the Alcorn Precinct were not deposited in a ballot box, as required by law.
Ground No. 1 appears to have been abandoned on this appeal since ignoring these ballots would not affect the net result. However, the failure of the election officials to comply with the directions of the statute, KRS 126.270, would not invalidate them in the absence of fraud or irregularity affecting the fairness of the election. See Stabile v. Osborne,
Appellant's second ground must be governed by the same principle. KRS
It seems clear the voter has done all that is required of him in this respect if he ascertains the ballot has been signed by one of the judges of the election. The statutes do not impose on him any duty to investigate the political affiliations of the clerk and the judges. In addition, it appears the requirement in KRS
Appellant's third and principal contention is that the secrecy of the balloting in the Alcorn Precinct was not maintained because the voters failed to deposit their ballots in the ballot box. The school board election was held at the same time as the general election on November 2. The election officials were instructed by the County Clerk to keep the school ballots separate. Only one ballot box was delivered to the precinct by the Sheriff, although KRS
The election officials improvised. They affixed to a desk or table a heavy paper envelope having approximate dimensions of 26 x 14 inches. At the direction of the election officials, practically all of the voters in this precinct deposited their ballots in this paper envelope. When the election was over it was sealed and delivered to the County Court Clerk. There is no evidence of any tampering with the ballots placed in this container.
KRS 118.290 requires the voter to deposit his ballot in a ballot box. One was available at the voting place, and it is argued that the voters' failure to follow the directions of the statute invalidated these ballots. Appellant contends that voting must be secret, and the failure to use the ballot box created an opportunity for the exposure of each vote. The evidence establishes, however, that the secrecy of the ballots was maintained. Only one witness testified that he could see another's marked ballot *767 in the paper envelope, but even he did not know how the ballot was voted.
In substance, this case is very similar to that of Jones v. Steele,
It is clear the statutes direct the use of a metal ballot box as a safeguard of the secrecy of the ballot and the honesty of the election. However, if this two-fold purpose is accomplished by use of a different type receptacle, there is no justification for nullifying an election held under such circumstances. We do not in any way condone the neglect of election officials to properly perform the duties detailed for them in our statutes, but, on the other hand, courts should not, because of the failure to follow a directory provision, disfranchise the voters who have acted in good faith. Under the circumstances shown here, we believe the secrecy of the ballot was maintained and the election in the Alcorn Precinct was fair and honest. Such being the case, all of the properly marked school ballots deposited in the substitute container should be counted as legal. Appellee was, therefore, properly adjudged the winner of the election.
For the reasons stated, the judgment is affirmed.