Brodie v. Hook

| Ky. Ct. App. | Oct 28, 1909

Opinion op the court by

Chiep Justice Nunn —

Affirming.

In the month of August, 1909, the Republicans of Breckinridge county held a convention to nominate candidates for the various offices of the county to be voted for at the election to be held November 2, 1909'. The chairman and secretary prepared and signed a certificate showing the persons nominated for the respective offices, in due form, and same was filed with the county court clerk of that county within the time prescribed by the statutes, but it failed to be stated in the certificate who was nominated, if any one, for the office of circuit court clerk. Matters stood thus until October 19, 1909, at which time the same chairman and secretary prepared another certificate reciting the nominees of the August convention, in which they inserted the name of appellant as the nominee for the office of circuit court clerk but the county court clerk refused to regard it and place appellant’s name upon the ballots. Appellant then instituted this action for a mandamus requiring him to place his name upon them. The facts above stated were alleged in the petition, and also that his name was left out of the first certificate by oversight of the chairman and secretary. He also averred that the county court clerk discovered the omission of his name from the first certificate and charged that he then took the certificate from the box where he kept all such certificates, and pnt it in a different box where it was not likely to be found, and that this was done to conceal the same from appellant. While we must concede this allegation as true, the case having gone off on demurrer, it is justice to the clerk to say that he denied it.

We have a case before us in which it is conceded that the certificate declaring appellant’s nomination was filed within 15 days next before the election to be held November 2, 1909, with a bare pretense that his failure to file it 15 days before the election was caused by the clerk changing the first certificate, which did not contain his name, from its place of deposit to another box in his office. He did not allege that he made any effort to see the certificate or request anyone to examine it for him, or that anyone was prevented from examining the certificate by reason of any act of the clerk, or that the clerk at any time failed to produce the certificate when called upon for it; nor is there any allegation in the petition that the removal of the certificate from its original place of deposit to another was in any way hurtful to appellant. It is provided by section 1156, Ky. St. that: ‘ ‘ Certificates and petitions of nomination herein directed to be filed with the clerk of the county shall be filed not more than sixty and not less than fifteen days before election.” If this language is mandatory, the clerk had no right to place appellant’s name upon the ballots to be voted at the election to be held November 2, 1909; but, if the statute is merely directory, he had the right to put it on. In 15 Cyc.'338, it is said: ‘ ‘ Statutory provisions in regard to the time of filing certificates of nomination are mandatory, and a certificate offered after the time limited is properly rejeeted” — and in support of the rule are cited cases from California, Kansas, New York, and Ohio, but cite none holding the contrary.

In the case of Griffin v. Dingley, 114 Cal. 481" court="Cal." date_filed="1896-10-08" href="https://app.midpage.ai/document/griffin-v-dingley-5448337?utm_source=webapp" opinion_id="5448337">114 Cal. 481, 46 P. 457" court="Cal." date_filed="1896-10-10" href="https://app.midpage.ai/document/chapin-v-wilcox-5448342?utm_source=webapp" opinion_id="5448342">46 Pac. 457, the court held the 'statute of that state in regard to filing certificates of nominations to be mandatory. The statutes of that state declare that the certificate should be filed not less than 30 days before the day of the election. The court in that case said: “To hold that it (the certificate) could be filed 28 days before the day of election would be in manifest disregard of the provisions of the statute.” In that case the candidate offered his certificate of nomination 28 days before the election, when the statute said “it shall be filed not less than thirty days before the election.” In the case of Hollon v. Center, etc., 102 Ky. 119, 43 S. W. 174, 19 Ky. Law Rep. 1134, this court construed our statute above quoted. In that ease Center and others, who were candidates for the county offices in Wolfe county, sued Hollon, the county court clerk, to mandamus him to place their names upon the ballots. The lower court granted the writ and Hollon appealed. All the candidates filed with the clerk certificates of their nomination, except James R. Ross and John Creech. All the certificates were filed within the period prescribed by the statute, except G. W. Sally’s and J. F. Sample’s, which were not offered until the 19th day of October, less than 15 days before the election, exactly what was done in the case at bar with reference to appellant’s certificate. The certificates of the other candidates filed were der fective, in that they did not state the place of residence of the candidates nor of the chairman and secretary of the convention; nor did the chairman and secretary acknowledge the same before an officer authorized to administer an oatE. The court in that case decided that these defects in the certificates could be supplied by other evidence or by the clerk, if he had personal knowledge of the facts omitted in the certificates, that the statute, in respect to the defects named, was merely directory, and not mandatory; but with reference to the certificates of Sally and Sample, which were filed October 19th, less than 15 days before the election, the court determined that the statute was mandatory, and that the certificates were inoperative because the statute required- that such certificates be filed not less than 15 days before the. day of the election, and reversed the case as to these appellees and also as to the two parties who failed to file any certificates. Bouvier’s Law Dictionary defines the word “mandatory” as follows: “In the construction of statutes, this word is applied to such as require to be obeyed, under penalty of having proceedings under them declared void. Directory statutes must be obeyed, but, if not, do not invalidate the act.”

In view of these authorities, and it seems that there are none to the contrary, we are of the opinion that appellee was correct in refusing to print appellant’s name on the ballots to be voted at the election to be held November 2, 1909. We are of the opinion that the General Assembly enacted this mandatory provision requiring the certificates and petitions of nomination to be filed not less than fifteen days before the election, so as to give the clerk that much time to prepare and have the ballots printed and distributed among the polling places in the county before the day of the election, and without being annoyed by litigation by some one attempting to get some name on or off the ballotts, and without being importuned by candidates and their friends for that purpose. The statute makes it obligatory upon all persons who desire to be candidates at an election to see to it that their certificates of nomination, or the necessary papers entitling them to have their names placed on the ballots to be voted, are filed not less than fifteen days’ before the election. If they neglect to do this, they must suffer the loss. Of course, the rule would be otherwise if the clerk fraudulently or otherwise wrongfully prevented the filing of the certificate or petition within the time required by the statute. It is true that appellant alleged that the clerk changed the first certificate from one box to another for the purpose of concealing it from him, but it is not alleged that it was concealed from him, or that he was prevented from seeing it by reason of the change, or that he ever called on the clerk to produce it and was refused, or that he had anyone else to do so with a like result, or that he ever looked into the box where such certificates were usually kept and failed to find it; nor does he allege that the removal of the certicate from one box to another was in any way hurtful to him

Eor these reasons, the judgment of the lower court must be affirmed.

Barker and O’Rear, JJ., dissent.