275 S.W. 790 | Ky. Ct. App. | 1925
Affirming.
The parties to this litigation, the appellant and contestant, Thank Jones, and the appellee and contestee, W.H. Steele, were each candidates for the Republican nomination for the office of jailer of Laurel county at the regular primary election held on August 1, 1925. The election officers of the various precincts of the county and the board of election commissioners for the county certified that at that election the appellee, W.H. Steele, received 707 votes and the appellant, Thank Jones, received 678 votes, thereby giving the nomination to appellee by 29 votes, followed by the issuing to him of a certificate of nomination. In due time appellant instituted this contest proceeding and in his notice of contest he set forth many grounds which he alleged invalidated a large number of votes cast and counted for appellee, and sufficient to give him a majority of the legal votes cast at the election, and he prayed that the certificate of nomination issued to appellee be cancelled and that he be adjudged the nominee for the office. Appropriate pleadings made the issues and upon trial the court opened the ballot boxes pursuant to a request for that purpose contained in the notice for the contest and recounted the votes, when it was found that instead of appellee receiving a majority of 29 he had received only a majority of 20 votes. The other grounds alleged were adjudged against the contestant and his contest proceedings were dismissed, followed by this appeal to this court
One of the grounds relied on, in addition to a request for a recount of the ballots because of mistake therein, was that in Newcomb precinct all the ballots that were cast therein were voted openly on the table and that the statutory requirement of secrecy in the ballot in primary elections was wholly disregarded so as to authorize the court to throw out that precinct as though it had no participated in the election, and that since appellee received therein about fifty more votes than did appellant the throwing it out would result in the nomination of the latter by about thirty votes; and on this appeal the latter ground is the only one urged for a reversal of the judgment, it being conceded that it correctly disposed of all the others.
The election in Newcomb precinct was conducted in a school house, the dimensions of which were practically *207 twenty by thirty feet. The sheriff of the county from some cause had neglected to furnish election booths at that precinct within which about 340 voters resided. Upon the opening of the poll the officers stationed themselves with the ballot boxes to one side of the building and at about the center of it and they provided a school desk between nine and ten feet from them on that side of the building and another one about twelve feet from them in the opposite direction on the same side and the voters used those desks as places for stamping their ballots. There is considerable contrariety of proof as to whether the election officers or any other person who had a right to be in the building could or did see how any voter stamped his ballot after retiring to the respective improvised places for that purpose. One witness testified that he saw how one voter stamped his ballot in the legislative race, although he was in the middle aisle of the building and nearly twenty feet from the voter. A candidate for justice of the peace in that magisterial district also testified that he saw how one voter stamped his ballot in some other race than that of jailer, and those witnesses are about, if not the only ones, who positively testified as to having seen any voter stamp his ballot for a particular candidate for any office. There is considerable contradiction in the testimony as to whether any one could have seen how any voter stamped his ballot if he had made an effort to do so without following the voter to the place where the stamping was done. Some of the witnesses claim that such an observer could have seen how the ballots were stamped, while a number of others testified to the contrary. There was also testimony introduced by contestant that the sheriff of the election, one Baker, stated after the polls closed that he had seen how a number of voters stamped their ballots, but that testimony was denied by the sheriff and its only office was to contradict him and could not be received as substantive testimony of the fact about which he is alleged to have spoken. The proof by all the witnesses was to the effect that the election was conducted in an orderly manner and that nothing was done smacking of fraud, intimidation or other corrupt or illegal conduct. The court found, under the testimony as above briefly outlined, "That there is no such a violation of the secrecy of the ballot as will vitiate the entire vote of this (Newcomb) precinct." He furthermore said in his opinion: "It is true that some several witnesses testified for the *208 contestant and said that the sheriff of the election could see from his station near the door how voters were marking their ballots on the desk nearest to him. There is no contention on the part of any person that the voters voting at the other place of voting in the same room could be seen by any persons, that is, as to how they were marking their ballots. It is true that the person of the voter could be seen, and his movements in manipulating his stencil and ballot could be seen by other voters or persons in the room. The secrecy of the ballot is not so essential as to the person of the voter as it is with respect to the casting of his vote, that is, who he is voting for. It is undoubtedly true that it would have been much better to have had booths and curtains in accordance with the directions of the statute on the subject, and this should be done, but to say that these three hundred and forty odd voters of this county and precinct should be deprived in their choice in the selection of the nominee for jailer because of a failure to provide them with the booth and curtain, or other means of secrecy directed by the statute, is further than this court is willing to go. . . . There is not the slightest intimation that fraud was practiced by any one; that there was any disturbance or disorder of any kind, and while the testimony is conflicting, rather strikingly conflicting on the part of Storms and Taylor, and Williams and Barnett and certain other witnesses, testifying for the contestee, and Karr and W.W. Storms, Steve Cobb and J.A. Carr, G.W. Nelson, Andy, Carr, A.D. Tuggle, Filmore Reece, W.A. Storms, A.C. Arnold, Andy Arnold, John Poynter and John Storms, on this question as to whether voters could be seen to detect how they were voting, the court is of the opinion that the situation was such as to satisfy the minds of the officers of the election and the voters who have testified here on this subject that they could cast their ballots there in that large room without being overseen by any person in the act of stamping their ballot without the use of booths or curtains. And, in view of all of the testimony in the whole case, while not approving the lack of booth and curtains at this large voting precinct, unless there was such a lack of secrecy as to invalidate the entire election in this precinct, this court would be without authority to disregard the will of these voters as expressed by them."
It will, therefore, be seen that the court found as a fact from all the testimony in the case that, notwithstanding *209 there was no provided booths at the precinct, yet the fundamental requisite to the fairness of an election (the secrecy of the ballot), was preserved and that the mandatory provisions in the Constitution for general elections, and in the statute for primary elections, providing for such secrecy of the ballot would not extend to and include the secrecy of the person of the voter while he was stamping his ballot, and if the act of stamping was itself secret the election would not be invalidated and the voter, at that precinct would not be disfranchised thereby. We think the evidence was sufficient to authorize the court's finding of fact. If, however, we were less persuaded as to the correctness of his finding, we would then not feel authorized to disturb it under the well known rules of practice prevailing in this court. We shall, therefore, treat the case from the standpoint that the stamping of the ballot, at Newcomb precinct, under the circumstances indicated, was secret although the body of the voter could be seen while he was so engaged.
In the very recent case of Marilla v. Ratterman,
The above rule as to the duty of courts in election contest proceedings was announced by this court in its opinions in the cases of Hardy v. Russell,
But it is insisted by counsel for appellant (contestant), that in the case of Manning v. Lewis,
It will be observed that this court held in the Hardy and Muncy cases, supra, that the statutory provisions with reference to the providing of paraphernalia for conducting elections were and are directory, and so long as their nonobservance did not result in destroying the secrecy of the ballot the election should be upheld, and, the right of the voter to participate in the selection of nominees for office, or the election of persons to office, should not be lost sight of and should not be taken away from him upon the mere nonobservance of directory provisions by officers whose duty it is to execute them. If, however, such nonobservance was followed by open voting or other fraudulent and corrupt practices so as to destroy the secrecy of the ballot, and also the fairness of the election, a different result would follow, since in that case the vote should be altogether rejected. No such consequences followed the absence of booths in this case, and we feel constrained to hold that, since no vitiating fact is proven, the vote east at Newcomb precinct should be counted, notwithstanding the sheriff failed to provide booths in which the voter might stamp his ballot.
The section following the one providing for booths (1468) imposes the duty upon the sheriff to furnish ballot boxes for the election and prescribes how they shall be constructed; if he should fail to do so and the boxes should be obtained by the election officers, though differently constructed but so that the ballots could be deposited in them and their secrecy preserved, then surely no one would contend that the election was thereby illegal. Evidently the purpose of booths was to furnish the voter a place for the stamping of his ballot in secrecy and was not intended to hide him while he was engaged at it, and, since the court found that such secrecy prevailed at Newcomb precinct, we feel as he did, that to throw out the entire precinct "is further than this court is willing to go." The illustration with reference to the furnishing of ballot boxes is pertinent, since they are providedreceptacles within which to deposit the ballots after they have been stamped in such a manner as to preserve their secrecy; while the provision with reference *213 to booths has for its purpose the providing for a secretplace where the ballot might be secretly stamped. If, therefore, secrecy is observed in each instance, the fundamental purpose of the law is complied with.
Wherefore, the judgment is affirmed.