169 Ky. 571 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
At an election for scbool trustee field in subdistrict No. 9, Education Division No. 5, in Perry county, K. C. Combs received twenty-five votes and Joseph. Brewer twenty-one votes. Combs was declared elected. Thereupon Brewer brought this suit contesting the election. On final hearing the trial court adjudged that both contestant and contestee received the same number of votes. Thereupon he declared the election a tie and directed the parties to draw lots for the office. On the draw Brewer won. Combs appeals.
Two grounds are urged for a reversal: (1) That the votes of Malvery Napier and Lou Ellen Crawford were improperly counted for appellée; (2) the court erred in determining the contest by lot.
The vote of Lou Ellen Crawford is attacked on the ground that she was not twenty-one years of age when the election took place. On this question appellant introduced the school census for the year 1915, which showed that Lou Ellen Crawford, who was then Lou Ellen Phipps, was only twenty years of age. Marion Combs, who took the census, stated that Lou Ellen Crawford’s mother gave the date of Lou Ellen Phipps’ birth as October 2nd, 1896. It also appears that Lou Ellen Phipps was married on March 13th, 1915. In the marriage certificate her age is given as twenty. On the other hand, Lou Ellen Crawford testified that from all the information she could get from her mother and her old kin folks she was twenty-two years of age at the time of the election. Her mother was also introduced and she testified that Lou Ellen was twenty-two years of age. She .admits telling the census taker that she could pgt down Lou Ellen Phipps ’ age at twenty. On cross-examination she stated that although she could not tell the year Lou Ellen was born, she was confident she was twenty-one years of age. <
' Clearly, the statements of a voter that she cannot read and write are mere hearsay and are not admissible as
In the case of the voter Lou Ellen Crawford the same rule is to be applied. The fact that the mother stated to the census taker that Lou Ellen Crawford was only twenty years of age, and that a friend of hers, who was present when she was married, stated that she was twenty years of age and this age was put in the marriage certificate, is not sufficient to overcome the positive statement of her mother that, as a matter of fact, she was twenty-two years of age. The trial court did not err, therefore, in holding that Lou Ellen ’Crawford’s vote should be counted.
Appellee contends that certain votes for appellant, other than those which the trial court refused to count, should have been excluded. Without entering into a discussion of the evidence respecting these votes, it is sufficient to say that a careful consideration of the record convinces us that the court did not err in holding that they should be counted for appellant.
We, therefore, agree with the trial court that appellant and appellee each received twenty-one legal votes and that the election, therefore; resulted in a tie.
It remains to consider whether or not the court erred in determining the contest by lot. It is the contention of appellee that the trial court’s action is supported by subsections five and eleven, section 1596a of the Kentucky Statutes giving the election commissioner, in case of a tie, the power to determine by lot which of the candidates is elected. In our opinion, however, the statutes relied on
“Vacancy — How Pilled — Power of Superintendent. — • If, from failure to qualify according to law, or from any other cause, there be a vacancy in the office of trustee, the county superintendent of the county shall, within ten days, or as soon thereafter as practicable, supply the same by his appointment, in writing, and the trustee so appointed shall hold his office until the end of that term, and until his successor is elected or appointed and qualified. In case of controverted right to the office of trustee, the county superintendent is empowered to recognize a trustee among the contestants until the dispute has been settled. If a trustee-elect shall fail to qualify before the county superintendent on or before the first day of J-qne following his election, or file with him a certificate that he has qualified before another officer, it shall be within the discretion of the county superintendent to declare his place vacant, and to fill same by appointment. ’ ’
It is clear, we think, that the legislature intended that a vacancy in the office of school trustee should be controlled by the above section and filled as therein provided. Under the above section it was held that where there was a tie vote there was a vacancy that the county superintendent might fill. Hopkins v. Swift, 100 Ky. 14, 37 S. W. 155. Since that time section 4438, supra, has been further amended, and any vacancy that may exist in the trusteeship of any school subdivision must be filled by appointment by the county board of education. Subsection 4, section 4426a of the Kentucky Statutes, 1915. Since the tie vote resulted in a vacancy, it follows that the trial court, instead of determining the election by lot, should have declared that a vacancy existed and have referred the matter to the county board of education for action.
Judgment reversed and'cause remanded for proceedings consistent with this-opinion.