121 Ky. 439 | Ky. Ct. App. | 1905
Opinion by
Affirming.
Corbin is a town of the fifth class in this State. It is situated partly in Whitley county and partly in Knox, but the greater part is in Whitley. More than 25 per cent, of the legal voters of the town petitioned the county court of Whitley county to order a special election to take the sense of the voters of the town whether spirituous, vinous, or malt liquors should be sold or bartered therein. The election was ordered and held. The - result certified was that the majority had voted in favor of the proposed prohibition. Appellees contested the election. The judgment of the contest board, and on appeal that of the circuit court, was in favor of the contestants, and the election was declared void.
The first question examined is the jurisdiction of
It will be noticed that there is no express reference in the statute, nor is there in any statute, to the condition where a city or town is situated partly in two or more counties. It was not, of course, within the purpose of either the covention or the Legisláture not to provide also for cities and towns situated in two or more counties. Nothing in the language used nor in the nature of the subject justifies such an inference. On the contrary, the scope of the terms employed is comprehensive enough to, and necessarily does, include all cities and towns of the Commonwealth. The function of the county court in ordering the election is merely to determine whether the requisite number of legal voters in the territory to be voted in has petitioned that the election be ordered, and, if they have, to order the election to be held as required by the. statutes. It proclaims that the proper initiative has been taken, whereupon the privileges of the Constitution and statute and the duties imposed on election officers thereby are brought in action. The county court has no discretion in the matter. Its duties in this respect are of a ministerial nature. Unless it is true that the county court of the county where the greater part of a town or city may be situated can perform the function of passing on the petition and of directing the proper officers to conduct the election, then it would follow that the positive requirement of the Constitution allowing a city or town to vote on this question has been ignored. . The true rule for construing statutes is to hold, where the language permits, that they intend to execute, rather than to evade constitutional requirements. We therefore read the provision of sec. 2554, Ky. Stats. 1903, viz: “It shall
The elections treated- of in the last-named section of the statute are not only the selection of municipal officers, but the submission of any question or proposition to be voted on by the municipality as such. The manner of certifying and canvassing the returns of the election is explicit, and covers literally and in spirit the very condition and kind of election involved in this appeal. It was the duty of the county court of Whitley county to order the election for the whole town of Corbin, 25 per cent, of the legal voters of that town, based upon the last preceding general election, having petitioned for it, whether or not the petitioners, lived in one or more precincts, or in one or more counties. It is enough, if they are citizens and legal voters, of the town. (Smith v. Patton, 103 Ky., 444, 20 Ky. Law Rep., 165, 45 S. W., 459; Nall v. Tinsley, 107 Ky., 441, 21 Ky. Law Rep., 1167, 54 S. W., 187.) The result of such.election, if in favor of
The next question examined is whether there was provided to the citizens of the town an opportunity to comply with the election laws requiring registration. By an amendment to the statute (chap. 6, p. 31, Acts 1904, approved February 11, 1904) voters of all the cities and towns of this Commonwealth are required to register before being entitled to vote. By sec. 1490, Ky. Stats. 1903, the first Tuesday in October in each year is made a registration day. Other days during the month may be set apart by ordinance of the town council for registration. The voter is required to personally appear on a regular registration day before the officers of registration, and, upon being by them found to be a legal voter, is so registered. The section further provides: “Said registration in October shall be known as the general registration, and any person then registered may vote at all elections until the next general registration, unless he become disqualified after registering. Every person shall be entitled to be registered who would be entitled to vote at the next succeeding November election, as now provided by law.”
By the Constitution of this State (sec. 145) every male citizen of the United States, of the age of 21 years, who has resided in this State one year, and in the county six months, and in the precinct in which he offers to vote sixty days, next preceding the election, is declared to be a voter. Certain disqualifications are prescribed by the section not necessary to be noticed here. By sec. 147 of the Constitution the General Assembly is required to pass laws for registration of voters for certain of the cities and towns of the State, and is empowered to pass similar general laws applying to other voters of the State. In the
The election being contested in the case at bar was held April 4, 1905. The last registration of voters in the town was October, 1904, previous to the general November election, 1904. There was no special registration held for the town of Corbin after the November election, 1904, and previous to the April 4, 1905. For appellants it is contended that there was no provision of the statute for having a special registration in the town where the election was held in the town alone, and that therefore the last previous general
It was said by Judge Lewis, in Commonwealth v. McClelland, supra: “Elections are free and equal only when all who possess the requisite qualifications are afforded a reasonable opportunity to vote without being molested or intimidated, and when the polls are in each county and) in each precinct alike freed from the interference of contamination of fraudulent voters. ”
Obviously, then, if there is no provision at all for allowing registration for an election to be held in April, 1905, except the registration had for the election of November, 1904, when only those then entitled to vote could be legally registered, those who moved to the town more than 60 days before April 4, 1905, from elsewhere in the county after November, 1904, or who had resided in the town not quite long enough to be voters in November, 1904, but amply sufficient to be entitled in April, 1905, and men living in the town who were not 21 years old in November, 1904, but were April 4, 1905, and who possessed the other constitutional qualifications, would all be denied the right to vote at the April election, 1905. This would not be because any of these citizens had done anything to forfeit his right to vote, or had failed to do anything that he could do to preserve it, but because the Legislature had failed to provide for their complying with the requirement of the law that they should register as a condition to the right of suffrage.
If the other view be taken of it, and the last previous general registration be deemed the one intended to apply, then it would be that the Legislature has provided an additional qualification to that prescribed by the Constitution. It would require one, to be a
It was said in City of Owensboro v. Hickman, 90 Ky., 634, 12 Ky. Law Rep., 576, 14 S. W., 688, 10 L. R. A., 224: “A registration law, however, will not. be held valid which, under the color of regulating the manner of voting, really subverts the right. If, for instance, it prescribes a qualification for the elector in addition to those prescribed by the Constitution, it will be declared invalid. In, the language of one writer, to be upheld, 'it must be regulation purely, not destruction. ’ ”
This language was used in condemning a registration statute which made a registration in July of one-year apply conclusively to all elections to be held, thereafter in that year. The statute was held bad,, because in conflict with the Bill of Rights in the Con
We have said this much in order to clearly get at the principle under which another statute of this. State is to be construed. Sec. 1495, Ky. Stats., 1903, reads: “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, and shall require the same to be published in like manner as the time and place of said election or vote are required to be published. Registrations under this section shall be known as special registrations,’ and any person so registered shall be entitled to vote at all elections held prior to the next general registration. Registrations prior to special elections shall be held not less than five days prior to the election.”
The county judge, in ordering the election which is the subject of this contest, did not comply with sec. 1495, supra. Appellants contend that the section does not apply to the situation in hand, because the expression is, “when an election or vote is ordered to be held or taken in a county containing any city, town, ’ ’ etc. The argument is that the section applies, only when an election is held for the whole county,
Appellants say that as there is nothing in the record to show what the majority was in favor, of prohibition at the April, 1905, election, and that, even if-those who were denied the right to vote had voted, and had all voted against the proposition, still, as there is not a showing that the result would have "been different, the irregularity is harmless, and ought not to be allowed to overthrow the result. The same argument extended would justify dispensing with an election altogether; for, if those opposed to the proposition were unable to produce evidence enough to show that it would have failed to carry, the argument is, in effect, that thereby it is shown that the voters’ will was in favor of it, and should be upheld, ac
The failure of the county court to provide for a spe