Henry v. Secrest

114 Ky. 677 | Ky. Ct. App. | 1903

Opinion of the court by

JUDGE SETTLE —

Reversing.

On May 4, 1901, a primary election for the nomination of Democratic candidates for county offices was held in Nicholas county by order of the Democratic committee. Appellee, E. J. Secrest, and six others were candidates in the primary for the nomination of county assessor. The race was quite close between the candidates for assessor, for appellee was defeated by only six votes by the candidate declared the nominee. The primary seems to have been fairly and legally conducted. Returns were duly made from the several voting precincts of the county, and on May 6th the committee met at the courthouse in Carlisle, the county seat, and in due form canvassed all the returns, and declared the candidates receiving the highest number of votes duly nominated. Appellee was present at the meeting of the committee mentioned, and demanded of them that they open the ballot boxes returned from the several precincts, and count the ballots, in order that it might be determined whether he or his leading opponent was entitled to the nomination for the office of county assessor. The committee refused to comply with his request, and thereupon appellee instituted suit in the Nicholas circuit court against appellant Henry and others, chairman and members of the Democratic committee, respectively, for the purpose of obtaining a mandatory injunction from the judge thereof to compel the county committee to open the ballot boxes and make a count of the votes from the ballots cast and returned. The petition avers, in substance, that the appellee had, after notice to the committee, demanded of them a count of the ballots, and the opening by them of the ballot boxes for that purpose; that he believed that a count of the ballots would show that' he had received a plurality of the votes cast in said primary for the nomination as assessor. It was alleged that the committee refused his request to count the ballots, and, further, that, though requested, and in writing notified, by him to do so, they refused to make or arrange the form or manner of deciding the contest which he proposed to make for the nomination of assessor. Appellants filed special demurrer to the petition and to the juris•diction of the court, which was overruled. They then entered motion to require appellee to paragraph his petition, make it more specific, and to strike out certain parts thereof; all of which motions were overruled. Thereupon a general demurrer to the petition was filed and overruled, after which answer was filed. The answer traverses the petition, •denies the jurisdiction of the court, and avers, in substance, that no contest had been instituted by appellee, and that none was then pending; that the vote had been fairly canvassed and counted by the committee from the returns made '.by the election officers of the various precincts of the county; that the count thus made showed the nomination of a person other than appellee for assessor; and that they had no right to open the ballot boxes and count the vote from the ballots. A demurrer was filed to the answer by appellee, which was sustained, and, appellants refusing to plead further, the lower court granted the mandatory injunction to compel the committee to open the ballot boxes and count the ballots. To that judgment appellants excepted, and to reverse it they prosecute this appeal.

The petition contains no averment of fraud, wrongdoing, or mistake on the part of the committee or any of the officers of the election. It does not set forth any ground for a contest. It gives no reason to support appellee’s claim to the nomination, but merely expresses his opinion that the counting of the ballots contained in the boxes would show him 'entitled to the nomination. Section 1563, Kentucky Statutes, provides that: “In all cases of a tie or contest, the committee or governing authority of the political party holding such primary election, shall have the power to hear and determine such contest, and decide who shall be entitled to the nomination. The proceedings in such ■cases shall be in such form and manner as the committee shall determine upon.” We are not inclined to believe that a mere statement, though in the form of a written notice, from a candidate, made to the committee, that he proposed making a contest, would be sufficient to justify the latter in prescribing the form or manner of proceeding in such contest, when, after all, it might or might not be made; and. certainly the committee could not be required, in the absence of a contest, to open the ballot boxes and count the ballots. If appellee intended to inaugurate a contest, he should have done so in the usual and only proper manner— by giving notice to the committee, as well as to the candidate whose right to the nomination was to be contested,, and by filing with the committee specifications showing fully the grounds upon which the contest was to be based. If' for irregularities, fraud, or mistake in the manner of holding the election, receiving votes, counting votes, or certifying the returns, it should be stated. In the absence of such specifications, the "committee were justified in refusing the appellee’s demands.

We are also of the opinion that the special judge erred in not sustaining the general demurrer to the petition. It presents no cause of action, and the court had no authority to grant the injunction in the absence of a contest, and upon the mere suggestion of appellee that he believed a count of the ballots would show his nomination, especially when the facts alleged in the petition show that a count had been properly made by the committee by a canvass of the returns.

Judgment reversed, with directions to the lower court to dissolve the injunction and dismiss the petition.