Howes v. Walker

92 Ky. 258 | Ky. Ct. App. | 1891

JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

Appellant filed his petition in this case in which he sets out his cause for mandamus compelling appellees, composing the Board for examining poll books, to give him a certificate of election to the office of County Court Clerk of Johnson county, for which office he was a candidate and voted for by qualified voters at an election held on the first Monday of August, 1890. The judge of the Johnson County Court was also made defendant, and a mandamus moved for requiring him to administer to appellant the oath of said office.

It has been held that the duties of a Comparing Board being ministerial, a mandamus will lie to compel them to perform them, which would include giving a certificate to the person receiving the highest number of votes for a given office. (Clark v. McKenzie, 7 Bush, 523.) But whether facts sufficient to authorize the writ of mandamus to issue, be stated in the petition, is a question of law to be determined on general demurrer as was done in this case adverse to appellant, plaintiff below.

The allegation of the petition is that the appellant was voted for at the election mentioned for the office of County Court Clerk of Johnson County, and his name was placed on the poll-books of each election precinct of that county as a candidate for said office; that he had no> opposing candidate at the close of said election at 7 p. Si-on said day ; and that at said election he received a large number of legal votes cast and was thereby elected to> said office. Whether he was entitled to the writ or not is a question of law dependent for its decision in his favor upon the essential fact he received the highest number of votes cast at said election for the office in dispute. . By the provision of section 2, article 5, chapter 33, General Statutes, the Comparing Board is required to ascertain the correctness of the summing up of the votes and give a written certificate of election, over their signatures, of the person who has received the highest number of votes for any office exclusively within the gift of the voters of the particular county. That Board had no authority to give to appellant the certificate unless he did receive the highest number of votes for the office in question, and, consequently, as that fact is not alleged in the petition the court was not authorized to grant the writ of mandamus, and there was no other alternative for the court but to sustain the demurrer. It is true the allegation is made that appellant did not have at the close of the polls an opposing candidate, but the omission to state he received the highest number of votes cast for that office was not cured or explained thereby. On the contrary, his failure to state that indispensable fact must he attributed to his inability to do so truthfully.

The demurrer was, in our opinion, properly sustained and the judgment is affirmed.