102 Ky. 119 | Ky. Ct. App. | 1897
delivered the opinion oe the coubt.
Appellees, alleging in tbeir petition that at a primary election, held September 19, 1896, under authority of the
On the same day, October 22, 1897, appellant entered his appearance, waiving service of notice. And thereupon parties consenting, the case was submitted for trial by Leland ■Hathaway, special judge. Appellant then filed a general demurrer to the petition, which was overruled; and, there being tendered by him no other pleading, judgment was rendered for the writ of mandamus as prayed for by appellees. And an appeal from that judgment having been granted, and the parties uniting in a motion to immediately docket and submit the case, it is now before this court for decision.
The sections of Kentucky Statutes applicable, and upon construction of which determination of the questions involved depends, are as follows:
“Section 1453. The county clerk of each county shall cause
“Section 1456. * * * Certificates and petitions of nominations herein directed to be filed with the clerk of a county shall be filed not more than sixty and not less than fifteen days before the election.”
Each of appellees filed with appellant, as clerk of the county court,'a certificate, signed by Gr. C. Hanks, chairman, and attested by J. E. Carroll, secretary of the Democratic committee of Wolfe county, showing he had, at,a primary election held in the various precincts, been duly electeu Democratic nominee for the particular office therein men-.
The question thus arises whether any of the defects or omissions referred to justified appellant in refusing, as he did, to cause the names of appellees printed on the ballots as candidates for the respective offices.' He was not justified in so refusing if pertinent provisions of the two sections quoted be directory merely, and not mandatory.
It is sometimes difficult to fix the line of demarcation; but the rule by which to determine when a statute is only directory is well stated in Cooley on Constitutional Limitations, as follows: “Those directions which are not of the essence of the thing to be done, but which are given with á view merely to the properly, orderly and prompt conduct of the business, and by a failure to obey which the right of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time nor in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purposes of the statute.” And that rule has been uniformly, though not stated in that exact language, recognized and applied by this court.
Such being the case, it would seem to follow, and ordinarily would follow, that the required certificate should be treated as authentic only when the chairman or presiding officer, as the case may be, and secretary have, according to the provision of the statute, added to their signatures their respective places of residence and acknowledged same before an officer duly authorized to administer oaths. And, in our opinion, such requirement could not be dispensed with in this case if either right of appellees to have their respective names put upon the ballots had been contested by others claiming to have been nominated instead of them, or the clerk had denied and demanded other proof of the facts required to be stated in the certificate. But statement is made in the petition which, on trial of the demurrer, is to be taken as true, that the persons who signed the several certificates were respectively chairman and secretary of the Democratic committee of Wolfe county; that it was within
But the two appellees who did not file any certificates at all were manifestly not entitled to have their names put upon the ballots. Nor, inasmuch as there are obvious and essen
For the reasons given the judgment or order for tbe mandamus must be reversed as to appellees, James R. Rose, John Creech, G-. W. Sally and J. F. Sample, and affirmed as to all tbe others.