123 Ky. 536 | Ky. Ct. App. | 1906
Opinion by
Affirming.
At the general election held November 7, 1905, in McLean county, Ky., the appellant, Ellsworth Mc-Euen, was a candidate on the Republican ticket, and the appellee, R. Gr. Gary, was a candidate on the Democratic ticket, for the office of county clerk, and this case involves a contest as to which of the two was lawfully elected to that office. McLean county has eleven precincts, one of them being Rumsey. It is conceded that the election returns from all of the precincts except Rumsey were correct, and the merits of the contest, so far as the issues of fact are concerned, turns upon the proper count of the votes at this precinct. While the record is somewhat voluminous, the facts involved are comparatively few and simple. We have no doubt that, by the count of the officers in the contested precinct, the appellant received 212 votes, and appellee 153, and that these figures were placed on the official tally sheet. When the four certificates required by the statute came to be made out, two of them showed the vote between the parties hereto to be as before stated, but by a mistake of the copyist the vote between the rival candidates for the office of county attorney was copied on the other two certificates, thus showing that the vote stood 186 for appellee, and 176 for appellant. One of these erroneous certificates was returned with the stub book and ballots to be used in the official count by the election commissioners. On the day after the election (November 8th) the officers in some way discovered the error that had been made, and informed appellee of it and on the 10th with the con
Thereupon this action was instituted by the appellee to contest the election of appellant, claiming that, as a matter of law, the election officers had no right to make the correction in the official returns from Rumsey, and, as a matter of fact, by a correct count of the vote of that precinct he was elected, instead of appellant. This was denied, and, without further notice of the somewhat lengthy- pleadings, it may be stated that the issues - of fact were properly made upon which depend the question which of the contending parties was elected to the office for which they were candidates. Upon the trial the court, in the presence of the parties in interest and their attorneys, opened the. ballot boxes and counted the ballots in the contested rape, with the result that they showed appellee had received 176 votes and appellant 196; and
The rule in- this State is firmly established that in an election contest the certificate of the precinct officers is prima facie evidence of the correctness of their count; but if the ballots themselves have been lawfully kept, and are shown not to have been tampered with then they must prevail over the certificate. Bailey v. Hurst, 113 Ky. 699, 68 S. W. 867, 24 Ky. Law Rep. 508; Edwards v. Logan, 114 Ky. 312, 70 S. W. 852, 24 Ky. Law Rep. 1099; Hamilton v. Young, 81 S. W. 682, 26 Ky. Law Rep. 447. In the case at bar appellee and his son, who was his only deputy, both testify positively that no one tampered with 'the ballots while in their custody, and there is no evidence whatever that they had been changed, unless the bare fact
When the box containing the ballots was opened, they were found by the court and the attorneys, so far as the eye could detect, to be in perfect condition.
It is insisted for appellant that great confidence should be placed in the count of the officers, because, as a whole, they were composed both of Democrats and Republicans, and the challengers and inspectors of the respective parties were there and participated in the count, and it is hardly possible that these seven men could have been so egregiously mistaken in so many instances; and it must be confessed that there is great force in this claim. But, on the other hand, it must not be forgotten that in the count of the votes
We do not believe the officers were drunk, although there is evidence in the record tending to show that the clerk was intoxicated, and that others were under the influence of liquor. But it is admitted to be true that there was a quart bottle of wine in the room where the election was held, and it was, to some extent imbibed by the officers. Assuming as we do, that they did not intoxicate themselves, yet this fact shows that
We have not discussed in detail all of the evidence upon the trial below, hut it may not be inappropriate to -say that every member of the court has taken a personal interest in investigating the facts of this case, that we have considered it maturely, and are unanimously of opinion that the judgment should be affirmed ; and it is so ordered.