Montgomery v. Chelf

118 Ky. 766 | Ky. Ct. App. | 1904

Opinion of the court by

JUDGE NUNN

Affirming.

In the month of June, 1902, the county chairmen, the governing authority of the Democratic pariy in the Ninth Judicial District of Kentucky, met at West Point, and called a primary election for that district to he held on the 20th ■of September of that year to determine the nominees of the party for the offices of circuit court judge and Commonwealth’s attorney, and at the same time the committee fixed $800 as the probable amount necessary to pay all expenses of the primary, and determined that the candidates for the two offices should pay this sum. A candidate for circuit judge was required to pay double as much as a candidate for Commonwealth’s attorney, and the names of only such as paid the assessment should be placed upon the ballot to be voted for at the primary. At the time this call was made there were three candidates for circuit judge — appellant, appellee, and Hon. T. R. McBeath — the last two paying the assessment, and having their names placed upon the ballot. Appellant did not pay, and his name was not put upon the ballot, and he was not voted for in the primary. Appellee receiving the highest number of votes cast, his name was duly certified to the Secretary of State, and by that official to county court clerks of the respective counties of that judicial district, with directions to place appellee’s name on the ballot as the Democratic candidate, and under the device of that party. At the election in November, 1908, appellee received over 8,000 votes, and appellant received less than 20 votes, as certified by the election officers. Appellee was given a certificate of his election. Then appellant instituted this action against appellee seeking to deprive him of the office, and to obtain it for himself. The issues were made, the proof heard, and the special judge who tried the case, dismissed appellant’s petition, and adjudged that he should, pay the cost, and he has appealed.

Appellant contends that appellee’s nomination was illegal and void, and for that reason there was not a legal vote cast for him at the election. The objections urged by him to the-primary election are: First, at the meeting of the committee which called the primary one of the members, thereof was not present in person, but acted by proxy; second, that the committee was not sworn before making the-call; third, the call provided that all Democratic youths who would become of age by the November election, 1903,, could vote in the primary; and, fourth, that the cost of the primary was assessed against the candidates, and it was provided that no candidates’ names should be printed on the ballots unless he paid his part of the assessment. We will consider these objections in the order stated.

We are of the opinion that in calling and conducting a primary election, under the statutes, the members of the committee whose duty it 'is to act in the matter can not delegate this authority to others — i. e., can not perform this duty by proxy — unless the party law -expressly authorizes it, which was not shown in this case. But it appears that there are four counties in the Ninth Judicial District, and that the regular chairmen of three of these counties were present and made this call, and the presence of a proxy representing the chairman from the other county did not have the effect to make their acts illegal or void. This court, in the case of Young v. Beckham, 115 Ky., 246, 72 S. W., 1092, 24 Ky. Law Rep., 2135, in construing the statutes .governing primary ’ elections, decided that it was required of the committee calling a primary election to first take the oath required by the statute. Appellant alleged in his petition that this committee made this call without taking, the required oath. This was denied by the answer, and the proof is silent upon the question. These committeemen were acting in this matter as the officers of the law, and subject to all the penalties prescribed by statute, and' the burden devolved upon appellant to show affirmatively that they did not take the oath. The general presumption is that officials in the exercise of their duties have been duly sworn. See Gilbert v. Huston, Litt. Sel. Cas., 223, 23 Am. & Eng. Enc. of Law (2d Ed.), 354, and Jones on Evidence, vol. 1, sec. 28. Admitting, however, that the oath was not administered to the members of this committee before they called this primary, it did not have the effect to invalidate the primary election, as no fraud or wrongful act or intent was shown or attempted to be shown on the part of the committee or any one interested in the election. See 23 Am. & Eng. Enc. of Law (2d Ed.), 355; Mechem on Public Officers, secs. 255, 262; Graham v. Graham, 113 Ky., 743, 24 Ky. Law Rep., 548; and Lunsford v. Culton, 23 S. W., 946, 15 Ky. Law Rep., 504. In this last case the court said: “The law requires that the officers of an election should he sworn. Yet when there has been a fair election the voter will not be deprived of his vote or the candidate for the office of his election, if the legally qualified voters have voted for him.” This primary election was fairly held. There was a full expression of the popular will of the party. If the officers were not sworn, the omission was by inadvertence, and not by design; and the people who voted ought! not to be deprived of their votes, and the successful candidate of the office, because of such an oversight.

Supposing it to be true that the call which permitted youths to vote was illegal, this did not have the effect to make the whole void and render the primary invalid. See Eagan v. Grewe, 112 Ky., 232, 65 S. W., 437, 23 Ky. Law Rep., 1495. Again, it is elementary that no one can complain of a failure to comply with a law unless he has been prejudiced thereby. See Graham v. Graham, 113 Ky., 743, 68 S. W., 1093, 24 Ky. Law Rep., 549. It was not shown that any person under age actually voted at the primary, and, if it had been, it could not have affected appellant, because he was not a candidate in it.

We now consider the last proposition — that the assessment laid upon the candidates, to pay the cost of the primary was contrary to law, and rendered.the primary void. Section 1564, Kentucky Statutes, 1903, provides: “All expenses of holding such primary elections shall be borne and paid by the political party holding same, and the pay of the officers, cost of publishing and circulating notices, and all other expenses shall be defrayed in such manner as may be provided for by the committee or governing authority of the political party holding such primary.” Section 1561, Kentucky Statutes, 1903, provides: “Any person desiring to submit his name to the voters in a-primary election shall, not later than fifteen days next preceding the holding of such primary election, apprise the committee or governing authorities of the political party holding such primary of the fact that he is a candidate, and upon complying with the conditions prescribed by the committee or governing authority for the regulation of candidates, shall be declared to be a candidate by the committee or governing authority of such political party; and any person who hasi not given such notice to the committee or governing authority, or who has not complied with the conditions prescribed by the committee or governing authority for the government of candidates, shall not have his name printed on the ballots used in such primary elections.” These sections clearly recognize that the committee has the authority to prescribe conditions to be complied with before the candidate is entitled to have his name printed on the ballot in addition to the submission of his name to the committee. We are unable to perceive what these conditions could' be, except the payment of a due portion of the cost of the primary. But it is urged that, if the statutes mean this, it conflicts with the Constitution (section 6), which provides that “all elections shall be free and equal.” That section of the Constitution has no reference to primary elections, but applies only to general elections. Section 148 of the Constitution provides that not more than one election can be held in any dis-_ trict in each year, except as otherwise provided in the Constitution. The Constitution nowhere makes provision for holding primaries. Therefore, if the word “election,” as used in the Constitution, includes primary elections, the Constitution effectually prohibits the holding of primary elections at all. There is a general election every year, and if a primary can not be held in the same year with a general election, it can not be held at all. To make it more plain, if the Constitution only authorizes one election to be held within a year, and a primary election is an election within the meaning of the Constitution, then to hold' a primary election and a general election the same year would be violative of this provision of the Constitution. But, even admitting that the Statutes did not authorize the committee to make this assessment on the candidates, and that it was also in violation of the provisions of the Constitution referred to, yet appellee, with other candidates, submitted to the assessment, and paid same, and had their names placed upon the primary ballots. Appellant declined to submit, and failed to proceed, by mandamus to compel the committee to place his name dn the ballot, as he had the right to do if the committee’s act was illegal. See Young v. Beckham, supra. It was not shown nor attempted to be shown in the record that appellee or any candidate in any way induced the committee to make this assessment, and, if illegal, it ■operated against his rights as well as the other candidates who entered the primary. Appellee submitted to the wrong, if it was a wrong, and won the nomination, and we are unable to perceive how it rendered appellee’s election in the primary void.

Wherefore the judgment of the lower court is affirmed.