95 Ky. 421 | Ky. Ct. App. | 1894
DELIVERED THE OPINION OP THE COURT.
Tlio question in this case is whether appellant, W. E. Broaddus, or appellee, "W. B. Mason, is entitled to office of Circuit Court Clerk of Garrard County, for which, they
The only complaint made by either party is of an alleged mistake in the return of officers of election at precinct No. 4, showing 146 votes for Broaddus and 136 for Mason. But the canvassing board accepting that return as true, examining.it in connection with others, found Broaddus had received highest number of all votes for that office in the county, and accordingly gave him a certificate of election. ,
' The contesting board, however, found upon evidence heard that Broaddus actually received at precinct No. 4 •only 128 and Mason only 127 votes, which being added to votes received by them respectively at other precincts, made a majority of 4 in favor of the latter, who was then adjudged entitled to the office in question. And upon appeal to the Garrard Circuit Court the same fact was found and same judgment rendered.
■ Officers of election at precinct 4 concur in their testimony a mistake was made in their return, and show, from the tally paper kept while the votes were counted and ■cast up, plainly how it occurred.
■ It appears that at close of voting on that day the ballots were all taken from the box and, for purpose of counting, placed in three separate lots on floor of the room where the election had. been held. In one lot were put all ballots showing the straight Democratic ticket had been ■voted; in another, all ballots showing straight Republican ticket had been voted, and in the third, all ballots showing one or other ticket had been scratched, that is, one or more candidates had been omitted by the several •voters.
Upon counting the third lot of ballots, it was found that candidates for office of presidential elector on the Democratic ticket, whose names were put at head of the ballots, had received 9 votes, which were added to 124 already counted, making 133 aggregate number of votes received by them at that precinct, while candidates for the same office on the Republican ticket had received 18 votes, which were added to 127 already counted, making 145 aggregate number of votes received by them. But of. the whole number of that class of ballots, Mason received only 3 votes, which, added to 124 already counted for him, as should have been do'ne, makes the actual number he received at that precinct 127, while Broaddus received only 1 vote, which, added to 127 already counted for him, as should have been done, makes the actual number he received there 128 votes.
-OBut the officers of election, though correctly cotinting ballots given to each candidate, erroneously added 3 votes, found among the scratched ballots for Mason, to 133 aggregate of votes given to candidates on Democratic ticket for the office of elector, instead of adding to 124, actual and whole number already counted for him. And in the same way they added 1 vote, found among scratched ballots for Broaddus, to 145 aggregate of votes given to candidates on the Republican ticket for office of elector,,
It thus appearing a mistake was made in the return of said officers of election, correction of which gives Mason title to the office, we will now consider whether there were such errors of law, by either contesting board or circuit court, as authorize a reversal.
1. Was proper notice of contest given in due time?The statute regulating elections requires the notice to be in writing,, signed by contestant, stating his grounds of contest, and for an office like the one in question, given within ten days after final action of the board of canvassers, which, manifestly, is the act of issuing certificate of election to that candidate having, according to the returns, highest number of votes for a given office. But it does not prescribe the mode of serving such notice, and consequently the Legislature must have intended it done according to section 625 Civil Code, which provides that if a person to whom a notice is directed can not be found at his usual place of abode, it may be served by leaving a copy there with a person over the age of sixteen years, residing in the same family with him.
Return of the sheriff shows appellant could not be found at his usual place of abode, and that there was a literal compliance, in due time, with the provision of the Code in such case. But both the contesting board and, circuit court overruled a motion to permit correction of the return so as to conform to facts proved, and their action is now made ground for reversal. We think, however, the law was substantially complied with, even if the notice was served in the manner shown by evidence of witnesses. It appears the officer did, in. fact, leave a
2. The proposition of appellant’s counsel, on question of jurisdiction, seems to be that after ballots have been counted and destroyed, as the statute requires, and certified return by officers of election made and duly filed with the canvassing board, there can be no recount or other action taken by the contesting board, whereby to
The statute, in express terms, provides for a board, composed of judge of tlie county and two justices of the peace, for determining the contested election of any'officer elected by the voters of the county, or of'any justice’s district therein, etc., and.gives it jurisdiction, “when another than the person returned shall be found to have received the highest number of legal votes given,” to adjudge such other person to be elected and entitled to the office. And with that end in view, the contesting board is empowered to send for persons, papers and records, to issue attachments therefor, signed by its chairman, swear witnesses, and issue commissions for taking proof.
It seems to us, if the contesting board, created for such purposes, invested with such powers, has no power to go behind returns of officers of election at each precinct, and adjudicate and determine who was legally elected and entitled to an office like the one in question, it is impossible to see what was the purpose of creating it.
Judgment affirmed.