172 S.W.2d 454 | Ky. Ct. App. | 1943
Affirming.
At the November, 1942, general election, the appellant and the appellee were rival candidates for the office of member of the Jackson County Board of Education from Educational Division No. 3 composed of voting precincts 2, 3, 4, 5, and 6 of Jackson County. In three of the precincts, 2, 5, and 6, the election officers were supplied with ballots on which were printed the names of Phee Hillard and Green Lakes as the opposing candidates. Hillard and Green Lakes were the candidates in Educational Division No. 4, and, according to the testimony, the mistake was made by the printer. It was not discovered until the morning of the election, and in Precinct No. 6 the election officers attempted to correct it by striking out the names of Hillard and Green Lakes and writing in place thereof, in pen and ink, the names of Estridge and James Lakes, except in a few instances where a voter objected and insisted upon correcting his own ballot. In Precincts 5 and 2 the voters were informed of the mistake as they received their ballots, and instructed by the election officers to write on the ballot the name of the candidate for whom they desired to vote. For illiterate voters this service was performed by the election officers. In the five precincts the total of the votes counted for appellant was 396, and the total counted for appellee, 215. Appellant accordingly was awarded the election certificate, and this election contest was instituted by appellee for the purpose of having it adjudged that there was no election. Appellant demurred on the ground that the allegations of the petition did not show that appellee was entitled to the office, and that only the Attorney General, by quo warranto proceedings, could maintain an action to oust appellant from the office. Upon the demurrer being overruled issues were joined and proof taken, at the conclusion of which the *657 Chancellor adjudged that no legal election had been held, and that the office was vacant. This appeal is from that judgment.
Since appellee had been nominated as a candidate for the office in the manner prescribed by KRS
It is argued by appellant that since it was not shown that any fraud was intended or committed and the voters were afforded a means of expressing their choice, and did, in fact, express it, no harm resulted from the failure of the clerk to furnish ballots with the names of the proper candidates printed thereon. This argument is plausible, but to uphold it would require us to nullify, in effect, the strict requirements of not only the Statute above cited relating to school elections, but provisions of the general election law, including those which relate to the manner in which the illiterate must vote, and the methods by which the secrecy of the ballot must be preserved. It is also contended that the clerk was warranted in inserting the names of the real candidates with pen and ink by KRS
"It is clear, however, that an election may be free from violence, and yet, if from a failure of the officers to supply ballots, booths, stencils, etc., any large proportion of the electors is prevented from voting, it can properly be said there has not been a free election, within the meaning of the constitution."
Appellant insists that the present case falls within the modified rule stated in the case of Wallbrecht v. Ingram,
"If the number of voters that were prevented from voting by fraud, bribery, violence, mistake of the election officers, or imperfection in the law would be sufficient to change the result if they had been cast for the minority, then the election should be set aside upon the ground that it could not be determined with certainty that the result, as certified to by the canvassing board, represented the will of the majority. A like conclusion should be reached if the bribery, fraud, intimidation, or other cause, whatever it may be, has affected the election to such an extent that it cannot be determined, by any reasonable *659 method, for which side a majority of the legal votes were cast."
This conclusion renders it unnecessary for us to pass upon the sufficiency of appellant's nominating petition, which was also attacked as an additional ground of contest.
Judgment affirmed.