140 Ky. 465 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
John Craig and Gr. M. Spitzer were opposing candidates for the -office of justice of the peace in the fifth magisterial district of McCracken county. There were two voting places in the district; at one of them Craig received eighty votes, and Spitzer sixty; hut at the other Spitzer received a majority of more than -twenty votes and a certificate of election was issued to him. Craig thereupon filed this suit to contest the election. He al
By section 1470 Ky. St., the challengers allowed by the statute are entitled to stay in the room while the vote is going on. By section 1481, the inspectors may he present at the count, and no other person, except the election officers, shall be admitted to the polling place before or after the count begins. By section 1482 it is provided:
“As soon as the noils are closed on the day of election, and without adjournment or separation of the officers, they shall, in the voting room, open the ballot box, and immediately count the ballots and make a tally sheet of the count. When the result of the ballot is ascertained it shall he immediately announced by one of the judges, in front of the voting room.
As to Spears, it is not averred in the petition that he was not an inspector properly appointed. The presumption is that the officers did their duty. As to the count, it is averred that there was a separation of the officers, and that the result was not announced in front of the voting room. While it is alleged that the result of the election was not announced in front of the voting-place, it is not alleged that it was not announced in front of the house where the count was made; and the failure to make the announcement has been held not to invalidate the election. (Puckett v. Snyder, 110 Ky. 266.) As to the separation of the officers, it is averred that the clerk took no part in the count; and so taking the pleading against the pleader, we must assume that the separation
It is not averred that the vote was not properly counted; no fraud or intentional misconduct on the part of the officers is alleged, and so we have the naked question whether their leaving the room and going one hundred feet away to another house should be held sufficient to throw out the vote of an entire precinct at an election admitted to have been fairly held, where the votes were fairly counted. It is the duty of the election officers to comply with the statute, and count the votes in the voting room without an adjournment or separation. Where the officers fail in doing their duty under the act they may be punished. Ky. St. 1577. But whether the vote should be thrown out because the officers instead of counting the vote in the voting room, went a hundred feet away and counted it at another house, when this was done innocently, and had no affect on the result, is a very different question. If the house in which the-vote was taken should burn with fire, the officers would not be expected to remain there during the fire. And so cases have arisen where officers have left the voting room because they were attacked by a mob, and were thus prevented from discharging their duties. The officers should comply with the statute unless compelled to go to another place by some overruling necessity beyond their control; but the general rule is that a failure on the part of the election officers to perform their duties according to .the statute, will not be' allowed to disfranchise the voters, unless such failure has prevented a fair election or in some way affected the result. (McCreary on Elections, section 724.) Thus in Bailey v. Hurst, 113 Ky. 699, it was held that the vote of a precinct should not be thrown out because the ballot box was opened during the day to get out the clerk’s pen which had accidentally fallen into it, when the officers had no other pen, and could not otherwise go on with the election. In Hardin v. Cress, 113 Ky. 734, the election officers instead of preserving the ballots after they counted them, burned them contrary to the statute; but it appearing that there was no fraud, and only an honest mistake had been made by the officers which did not affect the result, it was held that the precinct could not be for this reason thrown out. In Pace v. Reed, 128 S. W. 891, the crowd
Judgment affirmed.