125 Ky. 800 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming.
This appeal involves the validity of a local option election held in precinct No. 1 of magisterial district No. 2 in Breckenridge county, which precinct embraces a part of the city of Cloverport. On the face of the returns a majority of the votes were cast in. favor of the sale of spirituous, vinous, and malt
Two questions are presented for consideration; • the first being whether or not the county judge and the justices constitute a tribunal for the purpose of determining contested elections in local option cases. The second involves the validity of the election. It is contended for appellants that the circuit court alone has original jurisdiction of contested elections in cases of this character, and that the county judge and the two justices of the peace as a contest board was abolished by the acts of 1898 and 1900, investing in the election commissioners .the power to determine contested elections; but that conceding, for the sake of the argument, that the county judge and two justices. constitute a legal contest board, upon appeal from its judgment declaring that it had no jurisdiction the circuit court, in place of passing upon the validity of the election, should have remanded it to the contest board, or the board should have been compelled by mandamus to take jurisdiction and dispose of the contest. The identical question of the right and power of the county judge and the two justices of the. peace residing nearest the courthouse composing a contest board to hear and determine contests in local option cases was expressly decided by this
The remaining question is: Was the circuit court correct in holding that the local option election held in this precinct was void and of no effect. It is conceded that this precinct embraces a part of the city of Cloverport, and that no special registration was held in the city of Cloverport for this election, qnd that the officers of election permitted persons living in the city to vote without requiring them to present the registration certificate issued to them at the regular registration. The act of 1904 extending the registration law to cities of the fifth and sixth classes provides that “the officers of registration shall issue a certificate of registration to each voter registered at the time he registers showing that he has registered and the date of registry, and no person who is' required to register under the provisions of this act shall have the right to vote in elections held in this commonwealth until he shall have presented to the election officers his certificate of registration.” Laws' 1904, p. 31, c. 6. The original registration law found in the Kentucky Statutes of 1903, section 1486-1506, provides in section 1495 that “when an election or vote is ordered to be held or taken in any county containing any city or town belonging to either of said classes, at any other time than the regular November election, then the county judge, or other, officer so ordering said election or vote, shall, at the same time, fix a day for the registration of those persons entitled to vote thereat whose names have not been recorded on the registration books of that year.” In Early v. Raines, 121 Ky. 439, 89 S. W. 289, 28 Ky. Law Rep. 415, which was a case involving the validity of a local option election, the court held that the failure
It results* from the statutes quoted and the ruling of this court in the Early Case that, when an election is held in territory embracing a part of a city, the voters residing within the city cannot vote unless they shall have presented to the election officers their certificates of registration, and that, when a special election is ordered, a special registration must be ordered as provided in section 1495 of the Kentucky Statutes of 1903. [The lower court was correct in holding that the failure to provide for a special registration and in allowing voters who resided within the corporate limits of Cloverport to vote without presenting their registration certificates invalidated the election.
The judgment is affirmed.