100 Ky. 14 | Ky. Ct. App. | 1896
delivered the opinión oe the court:
On the first Saturday in June, 1895, an election was field in White Common School District No. 34, of the •county of Calloway, for the purpose of choosing a trustee for the common school of the district for the term fixed by law.
It appears that due notice of tfie election fiad been given; tfiat it was beld at the district school house, and that it was field and conducted in all respects as prescribed by the statute. (Kentucky Statutes, section •4434.)
Tfie appellant, Elias Hopkins, and William Lee, residents of tfie district and duly qualified, were tfie only candidates for tfie office, and at tfie close of tfie polls it was ascertained by the judges of tfie election tfiat twen
After receiving the certificate, and in due time, the appellant, Hopkins, qualified by taking the oaths required by law before a justice of the peace of the county, and forwarded to the county superintendent a certificate of his qualification, signed by the justice.
A few days after the election complaint was made to the county superintendent by the appellee, J. H. Swift, who was the chairman of the trustees for the said district, that the appellant, Hopkins, was not lawfully elected, and, at his instance, the county superintendent undertook to investigate the case and to ascertain whether or not the appellant, Hopkins, was properly elected, and entitled to the office.
It is to be observed that William Lee, who was the competitor of Hopkins for the office at the election, made no complaint, and did not propose to contest the election, and did not authorize anyone to contest it for him, afid that there was no written notice of contest. Besides, it does not appear from the record that the appellant, Hopkins, was, either in person or by attorney,, a party or that he consented to this investigation, although he was present a part of the time during which it was in progress.
But a great many witnesses were examined before
Several of the witnesses stated, and the proof seems conclusive, that when asked for whom he would vote, Clayton answered: “Hopkins is a poor man, and I am a poor man, and I will vote for Hopkins.”
At the conclusion of the examination of the witnesses the county superintendent decided that the vote
The decision of the county superintendent was made on the 6th day of June, 1895. On the 8th day of July following, in pursuance of a call of appellee, Swift, as the chairman of the board of trustees, a meeting of the trustees was held at the district schoolhouse for the purpose of employing a teacher for the district school for the school year. That meeting was attended by appellants, Hopkins and T. P. Jones, one of the trustees, and appellees, Swift and Tarry, the latter claiming to be a trustee by virtue of the appointment made by the county superintendent to fill the vacancy supposed to exist as above stated.
At that meeting appellants, Jones and Hopkins, being a majority of the trustees, if Hopkins was lawfully in office, by written contract employed appellant, Ellen Keys, to teach the school for five months, and appellees, Swift and Tarry, who constituted a majority of the trustees, if Tarry was lawfully appointed and in office, by a similar contract employed appellee, M. T. Morris, as the teacher. This being the situation of affairs, the appellants commenced this action in the Calloway Circuit Court, in which they asserted the right of appellant, Hopkins to the office of trustee, and the right of appellant, Ellen Keys, under her aforesaid contract, to teach the district school, which rights, they al
Motion was made on notice by the appellants for a temporary injunction, issue was joined upon the answer, denying the rights claimed, and setting up the c-laim of appellee Tarry to be the lawful trustee under the appointment made by the county superintendent, and the claim of appellee Morris to have a valid contract to teach the district school upon the facts, detailed above, and the case was submitted to the court and heard upon oral testimony.
Upon the hearing the lower court adjudged in substance that the officers of the election had the lawful right and ought to have changed the vote of Clayton from Hopkins to Lee, and that “said change would have resulted in a tie, and thereby caused a vacancy;” and, further, that the county superintendent had the lawful right to appoint a trustee for the district, “as the officers of the said election failed to cast the deciding vote;” and that the appointment of appellee Tarry as trustee by the county superintendent, and his acts as trustee under the said appointment, were valid. The injunction prayed for was accordingly denied and . the petition dismissed,.and that judgment is before us on this appeal.
The facts brought out in the testimony given on the trial of the case in the court below, relative to the vote of Clayton at the election for trustee, were substantially
It appears that the statute regulating such elections was literally complied with, and that, upon the votes as cast and recorded, the appellant Hopkins received a majority of the votes.
It further appears that he received a certificate of his election in due form, and that he qualified by taking the oath required, and entered upon the discharge of his duties as trustee. He thus became an officer in fact, with all of the evidence of his right to the office that was required by the law, and could not be deprived of his right except in the manner prescribed by law.'
The only method of contesting such elections is that provided by sections 1534 and 1535 of the Kentucky Statutes, which provide a board for determining the contested election of any officer elective by the voters of a county “ or any district therein, except members of the General Assembly,” and prescribe the steps or method of procedure. This board is known as the county board of contest, and has jurisdiction in respect of common school districts as well as of other districts in a County.
There is no statute under which a county superintendent has the authority to determine any such contest, and jurisdiction to determine a contested election
But if the county superintendent had the power and authority, under the statute, to determine, the question as to the right of the appellant, Hopkins, to the office in question, and if the case was properly before him for adjudication, the ground upon which he ascertained and adjudged that Hopkins was not elected and that there was a vacancy in the office was not such as would have authorized such a judgment. For, when Clayton cast his vote for Hopkins and it was so recorded, and after he left the table where his vote was taken and other votes were cast and recorded after he voted, as was the case here, he had no right to have his vote changed from Hopkins to Lee, even though he intended to vote for Lee in the first place and by mistake or inadvertence called it out for Hopkins instead of Lee, and it would not have been proper for the officers of the election to change his vote as they were requested by him to do. Counsel have referred to no authority for changing the vote under the circumstances named, and, so far as we are advised, the precise question has never been directly before this court.
In the case of Anderson v. Winfree it was held that, in the case of viva vocc Aoting, if it can be made to appear by the evidence, Avithout doubt, that the vote of a person, cast for oue candidate, was, by mistake of the clerk, recorded for another, the vote ought to be changed to accord with the intention of the voter. And in Cowan v. Prowse the court said: “Though the evidence in such case may be entirely satisfactory that a mistake was made, it does not necessarily follow it was committed by the clerk, for the voter may himself have inadvertently called or presented to the officer of election the name of the candidate he did not really intend to vote for, and, if so, the record ought not to be changed.”
This is the correct principle in cases of this kind, and applies directly to this case, conceding the fact to be that Clayton did intend to vote for Lee, but by his own mistake or inadvertence, called the name of Hopkins as the candidate he wished to vote for. Any other rule
We do not think it would be proper for us here to pass upon any question arising upon the claims of the persons who were employed to teach the school in district No. 34, arising upon their several contracts, which may be the subject of future litigation.
But, for the reasons given, the judgment of the court below is reversed and the cause remanded, with directions that a judgment be entered declaring the right of the appellant, Hopkins, to the office of trustee in common school district No. 34, of Calloway county, and enjoining the appellees and each of them from interfering with him in the discharge of his duties as such trustee, and also enjoining appellee, Tarry, from exercising or attempting to exercise the duties of trustee in said district, and for further proceedings consistent with this opinion.