80 S.W.2d 32 | Ky. Ct. App. | 1934
Affirming.
The appellee Martha Alexander and the appellant Jacob Little were opposing candidates for the office of school trustee of subdistrict No. 26, Wolfe county, Ky. (which is known as the "Bear Pen" school district), at the school election held therein on July 14, 1934.
As soon as the polls were closed, the ballot boxes were delivered by the officers of the election to the county school superintendent, by whom they were later turned over to the county board of education, which *420 duly canvassed the returns. By this count the appellant Little was found to have received 45 votes, appellee Alexander 41, and Allen one vote, when a certificate of election was thereupon duly issued the appellant Little.
Contest proceedings were thereupon instituted by Martha Alexander in which she set out that certain named persons had cast and had counted their votes for appellant who were not entitled to vote in the election because of certain named disqualifications, to wit: That certain named persons who participated in the election and who voted for appellant were not legal voters in the district; that other named parties openly and illegally voted on the table for appellant in violation of the provisions of section 1475, Kentucky Statutes; and that yet another named person illegally voted for the appellant when he was at the time not of age.
To this petition the appellant (contestee below) filed answer denying the allegations of the petition and for counter ground for contest alleged that some ten illegal ballots had been cast, marked as voted for both candidates, which were by fraud or mistake of the board counted for the contestant Alexander; next, that a number of ballots had been cast and counted for her which were not signed by any officer of the election; also, that one ballot had been voted and counted for contestant from which the stub showing the voter's name had not been detached; and further he alleged facts tending to show the integrity of the ballots and asked a recount thereof and that he be adjudged elected by a majority of 25 legal votes.
Contestant replied denying the, grounds and allegations of the counter contest and denying further that the ballot boxes had been carefully preserved or that a recount of the ballots would support appellant's claims with respect to same, and averred that the ballot boxes had been kept in the superintendent's office, which had not been kept locked so as to prevent people, from entering and changing the returns, and that none of the ballots, except one, of those voted for contestant were marked as voted for both candidates, or that if they should later so appear, they were fraudulently so changed without her knowledge or consent since cast.
Voluminous proof appears in the record as taken by deposition, affidavits made, or agreed stipulation of facts. *421
Upon final submission of the case upon the issues thus joined, the court adjudged that there were cast, counted, and certified for the contestant, Martha Alexander, at this election 41 votes, but that one Arch Hollon voted openly for her and that his vote was illegal and should be deducted from the number of votes cast and certified for her, and adjudged that the contestant received 40 legal votes at said election. Further it adjudged that there were cast and counted for the contestee, Joeab Little, 45 votes at said election, but that 7 of said votes were illegal as they were east for him by Swango Hollon, Dillar Barker, Millie Barker, Perlie Hollon, Mrs. Hiram Hollon, Peet Mossie, and Mrs. Peet Mossie, who did not reside in Bear Pen school district, and should be deducted from the 45 votes cast, counted, and certified for contestee, with the result adjudged that he had received but 38 legal votes and dismissed his counterclaim. Further the court adjudged that the contestant, Martha Alexander, had thus received a majority of the legal votes at said election and was thereby duly elected for the term to the office of trustee for school district No. 26.
Complaining of this judgment, the contestee, Joeab Little, has appealed, contending that the court erred in deducting these 7 votes adjudged illegally cast from the 45 votes cast and counted for him in the election for the reason, he contends, that it is the uniform rule that where the ground of contest is the casting of ineligible votes, it is incumbent on the contestant to prove not only that illegal votes were cast but that enough of these were voted for contestee to change the result of the election.
It may be conceded that such is the rule of law as stated by appellant and as was announced by this court in Drennan v. Roberts,
While the method here adopted by the contestant for showing that she received in the election 40 legal votes (by the affidavits and testimony of such alleged legal voters) was not properly competent as evidence of such fact, as such proof could have been stricken from the record upon objections and exceptions thereto when ruled on by the court, we yet find that while exceptions were filed by the contestee to this proof, the same were never ruled upon by the trial court. It may be admitted that a legal voter cannot be required to testify or to in any way disclose how he voted, as has been repeatedly held by this court in the cases of Siler v. Brown,
We are for such reason led to conclude that the votes of the 7 named parties alleged and adjudged to have been illegally cast for the appellant were sufficiently established by this proof, excluding these voters from the number of those who voted in the election for appellee.
Appellant further contends that the evidence did not sustain the finding of the chancellor that the 7 named parties whose votes were deducted from those received by him were illegal upon the ground of their alleged nonresidence within this school district. The evidence as to this is conflicting. These said parties testified that their residence was within the district, and the testimony of the county school superintendent is given for the purpose of corroborating their testimony. It is alleged that the boundary of the district as established by him includes their residences, but the superintendent's testimony fails to set out with any definiteness where the boundary line runs, as he states that the record showing its boundary was destroyed when the courthouse was burned some years ago and that since that time he has depended, for his determination of those living within the district, on the school census taken of those claiming to live within it and that except for one or two special orders since made by him he does not himself know where the boundary line of the district runs. As against this there is the testimony given by appellee's witnesses, who state that they helped to run off the boundary lines of the district when it was officially established, that they know definitely where the line runs and all those who voted in this election who live outside of it, and that the 7 named parties found *424 and adjudged by the chancellor to have cast illegal votes were in fact well known by the witnesses to be nonresidents of the district. We are not inclined to disturb the finding of the chancellor upon this conflicting evidence, when we are thus left in doubt by the evidence as to the true residence of these adjudged illegal voters.
Appellant further contends that where, a vote is sought to be disregarded on the ground of open voting, it is necessary to allege and prove the nonexistence of facts which under section 1475, Kentucky Statutes, authorizes certain persons to vote openly. This was substantially so held in the case of Kean v. Whittle,
"Voter must declare on oath that he is blind or physically disabled to have officer mark ballot for him"
and further, by syllabus 4, it is stated, that the holding of the court in that case is:
"Election must be by secret official ballot, the only exception in case of persons illiterate, blind or in any way disabled."
In observance of this rule, the vote of Arch Hollon, charged by appellant to have been openly voted for appellee in violation of this rule, was adjudged to be deducted from her vote, although several votes charged by appellee to have been openly voted for appellant were not deducted from the number of those adjudged legally cast for him, from which it must be inferred that the court's refusal to throw out these votes was because of failure of the evidence to show that they were so voted, rather than because of its failure to observe the rule.
Some of the officers of the election and representatives of the candidates watching the count testified that the official count was in every respect fair and that only ballots as to which they all agreed were cast for either of the rival candidates were counted for him or her; that the ballots which were spoiled were not counted for either; that the certain three "blotched" ballots found upon the count were agreed by all the election officers to have been cast for the appellee and were counted for her because of their conclusion that the same were not to be treated as spoiled ballots but that they had only been "blotched" in doubling them. *425
Upon a careful consideration of the, whole record, we are led to conclude that the appellant has not been prejudiced in any of his substantial rights by the ruling of the learned chancellor dismissing his counter contest, nor in adjudging that the votes officially counted for him should be reduced by the 7 votes adjudged illegally cast and counted for him, or in adjudging upon such ground that appellee had received a majority of the legal votes cast and was the lawfully elected school trustee of the Bear Pen school district No. 26.
Therefore, its judgment is affirmed.