113 Ky. 734 | Ky. Ct. App. | 1902
Opinion op the court by
Affirming.
These are contests of election over the county officers in Wayne county, arising out of the election held in November, 1901. The appellant Sam C. Hardin was a candidate for the office' of county judge, and, the certificate of election having been awarded to appellee, W. R. Cress, his opponent, an action was filed to contest the election because of alleged irregularities and illegalities in Mill Spring precinct in Wayne county. The charge in the petition is that Mill Spring precinct, according to the certified returns of the election officers of that precinct, cast 232 votes for appellee, Cress, and sixty-eight votes for appellant; and, as the vote of the entire county gave Cress a majority of seventy, it is charged that appellant was entitled to the certificate of election and to the office. It is alleged that fhe votes of Mill Spring precinct should not be counted at all, because the election officers at that precinct, after the votes had been duly counted and certified, failed to preserve the ballots voted by the voter, but in fact destroyed the ballots, and made no returns thereof except the certificate of the officers as to the number of votes cast and counted for each candidate. There is no charge that there were any illegal ballots counted or cast, nor that any legal ballots were not counted, nor is there an allegation that the certificate of the election was an incorrect statement of the ballots voted. . In fact, there is no allegation of fraud,,mistake, or illegality in any particular save that the ballots voted were destroyed after they had been counted and certified, and the result announced publicly. The petitions in all the cases set out the same ground of con
The pleadings and proof taken herein nowhere charge or show that by the destruction of the ballots any person was deprived of a single vote to which he was. entitled, or that ary vote was counted for any person to which he was not entitled. There is no error or fraud charged or proven in the result of Mill Spring precinct by which the result was changed in a single instance in favor of the one or other candidate. Indeed, so far as the petitions aver, and when taken most strongly against the pleading, the votes certifiéd by the election officers are exactly the votes cast b,j- the qualified voters in the precincts for the various candidates. The question, then, is presented, are these voters who have legally voted "and were legally qualified to vote to be deprived of their votes because of the action of the election officers in destroying the evidence of how these votes were cast after they, had been correctly counted and' certified? To answer this question intelligently, it must be remembered that these ballots, after being strung, are sealed up, and returned with the certificate, and are not to be opened by the officers who canvass the election returns for the county, but are to be opened and used as evidence in case there is a contest over that precinct or its result. The certificate of the election officers is to be used to ascertain how the votes of any precinct were cast, and in case of an attack on the certificate in a contest the ballots majr be used as evidence to test the verity of the certificate, but for no other purpose. Here there is no attack on the certificate from Mill Spring precinct. It is admitted, by the pleadings not making an at
Judgment affirmed. .