140 Ky. 138 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
On July 24,1908, an election was held in Georgetown on the question whether spirituous, vinous and malt liquors should be sold in the. city. The returns of the election officers showed that there was a majority of one in favor of the sale; but there were three disputed votes
The proof shows that the election was very orderly and quiet. The officers of election were harmonious throughout, and there was no dispute between them or trouble of any kind. Both sides were properly represented at the election; and the chief controversy on the appeal is as to the legality of certain ballots. Thus, Letcher Thomas, according to the proof for the contestants, after he had stamped his ballot came out of the booth to say that his name was not spelled right with his ballot in his hand not folded up, and according to the proof for the contestees, when he started out of the booth with the ballot in this condition, and before he had gotten out of it, one of the judges told him to go back and fold up his ballot. According to all of the proof he then folded up his ballot in the booth, and handed it to one of the judges, and it was deposited in the box. W. B. Simmons folded his ballot in such a way that the stub could not be torn off. He was sent back into the booth and told to fold it properly. He folded it again and handed it to one of the judges, and while the ballot was in the hands of the judge, and he was readjusting the folding so that the stub could be torn off, the ballot was accidentally opened so that one of the officers saw how he had voted. The same thing, practically, occurred with the ballots of C. E. Hills and Jesse Jackson, and these are the three disputed ballots which were not counted and returned in the envelope above referred to. William Washington, Warren Alexander and William Cruise were infirm persons who were brought to the polling place in a buggy, and the clerk by common consent took the ballots out to them sitting in the buggy, and they there made- their stamp upon the ballot, and it was returned by the- clerk to the election officers and placed in the ballot box. This was done in consequence of the infirmity of the voters;
Section 147 of the Constitution provides that “all elections by the people shall be by secret official ballot, furnished by public authority to the voter at the polls and marked by each voter in private at the polls and ■then and there deposited.” The section also provides that “the first General Assembly held after the adoption of the present constitution shall pass all necessary laws to enforce this provision and shall provide that persons illiterale blind or in anyway disabled may have.-their
According to the evidence we find that there were six votes against the sale which should not be counted under the rule, and six votes for the sale that should not be counted, besides the two negroes whose names were unknown to the witnesses; and we so conclude that in this case, contestants have not been prejudiced in this matter ; for if all these votes are left out the result will not be more favorable to them. .
Section 1474 of the statute provides that if any of the electors shall show his ballot to any other person after it is marked so as to disclose how it is voted, the ballot shall not be deposited in the ballot box, and the elector shall then not be allowed to vote. This evidently refers to an intentional exposure of the ballot, and it does not refer to an exposure of the ballot made by one of the officers of the election in arranging the ballot so as to tear off the stub. The voter should not be disfranchised by the act of another in exposing his ballot, or in looking at the ballot when the voter did not intend it to be seen. The statute contemplates a wilful exposure of the ballot. Under all the evidence, we conclude that neither Simmons, Hill or Jackson exposed their ballots within the meaning of the statute. It is insisted that these ballots cannot be counted now for the reason that they were not returned as provided in section 1485 Ky. St., in that the officers of the election although they did everything else as provided by the statute, failed to place the county election seal in hot wax on the envelope. They made the proper endorsement on the envelope and signed it, after it was sealed, across tire seal. The purpose of the statute is to secure the ballots from mutilation and also to have the certificate of the officers as to whether they have been counted or not. Two of these ballots were for the - sale, and one against it. We think the statute was substantially complied with, but this is not material to the result of the case, as it would make a difference of only one either way. . ,
Judgment affirmed.