123 Ky. 806 | Ky. Ct. App. | 1906
Lead Opinion
Opinion by
Reversing.
At the regular November election in 1905 the appellant and appellee were opposing candidates for the office of sheriff of Owsley county. The returns of the election, as evidenced by the certificates of the officials of the precincts, showed that appellant received. 625 votes, and appellee received 578 votes, thus giving the former a majority of 47 votes on the face of the returns. He was, therefore, awarded the certificate of election by the county canvassing* board, and qualified as sheriff, which office he now holds. The appellee, after the certificate of election had been issued to appellant, instituted this action in the Owsley circuit court, alleging* that there were 85 contested ballots in “Gow Creek” precinct, which were not counted in the race for sheriff; that they were voted for him, and the canvassing board should have so counted them; and, if counted, they would show he received a majority of the votes cast in the whole county, and was elected sheriff. The appellant filed an answer in which he claimed the 85 votes in question should be counted for him, making his> majority 142, instead of 47, as shown on the face of the returns; that in Buffalo precinct he (Neely) received 76 votes, only 35 of which were counted for him by the election officers of that precinct, the appellee being given 91 votes, when, as a matter of fact, he only received 50 votes. The appellant further alleged that the appellee, together with his brother, Bill Rice, and several other parties, induced the officers to burn the ballots cast at Buffalo precinct, and that other wrongs and
There are only two questions necessary to be considered on this appeal: First, did tbe court err in refusing to review tbe returns of tbe election officers of Buffalo precinct? Second, was it error to receive as evidence, and allow tbe 85 contested ballots to overcome tbe certificates of tbe election officers of Cow Creek precinct?
Tbe undisputed testimony is that tbe election officers in Buffalo precinct were drunk; that a dozen or more persons were in tbe polling place while tbe canvass of tbe vote was being made; that from 60 to 70 per cent, of the ballots used at that election were voted in public. Tbe evidence discloses deplorable conduct at that voting place, where tbe most flagrant violations of tbe law continued throughout tbe day. Tbe appellant did not allege that tbe officers were drunk, or that tbe electors voted openly, ór fon whom those who voted openly castffheir votes, it is true tbe votes so cast, unless tbe voters first made oath of their inability by reason of infirmity to cast their votes, were illegal, and if appellant
The only grounds especially pointed out in appellant’s answer, with reference to Buffalo precinct, were that the officers, in making the count of the votes, only gave him 35 votes, when they should have given him 76 votes, and gave appellee 91 votes, when he was only entitled to 50 votes; and after the count Was made all the ballots were destroyed. His testimony failed to establish these charges, except the burning of the ballots, and this was done, according to the testimony, by one of the drunken election officers without any evil intent. See Bailey v. Hurst, 113 Ky. 699, 24 Ky. Law Rep., 504, 68 S. W. 867; Anderson v. Likens, 104 Ky. 699, 20 Ky. Law Rep., 1001, 47 S. W. 867; Banks v. Sergent, 104 Ky. 843, 20 Ky. Law Rep., 1024, 48 S. W. 149.
The second question to be considered is the right of the court to count the 85 contested ballots from Cow Creek precinct. Section 1482, Ky. St. 1903, so far as is pertinent to the subject under discussion, is as follows: “That if there are any ballots cast and counted or left uncounted, concerning the legality or regularity of which there is any doubt or dif
It is agreed that the officers of the election at •Cow Creek precinct did not comply with the provisions of the statue in making their returns as to the 85 contested ballots. They were placed in a large linen envelope, sealed and marked “contested ballots,” but without any certificate of the officers of the election attached thereto,'and without any of the names of the officers of the election being written across the seal of the envelope. It will be observed that the statute requires a certificate to be attached to, or placed with, the questioned ballots, with a true statement as to whether they have or have not been counted, and, if counted, what part and for whom. The statute further requires that the officers of the election shall plainly write their names
The General Assembly knew of the cases then pending, and those which had been previously de
In the case of Struss v. Johnson, 100 Ky., 319, 18 Ky. Law Rep., 771, 38 S. W, 680, this court said: “To hold that that part of the statute requiring the 'sealing up of the doubtful or questioned ballots, and a statement of the officers of the election as to whether they have been counted, etc., is directory, is to sweep away the safeguard which the law places around the returns of the officers of the election. To hold it is mandatory in the particular indicated, we follow the manifest purpose of the law-making power, which was to prescribe how doubtful or questioned ballots should be preserved and returned for ‘such judicial or other investigation, as may be ■necessary.’ To render the doubtful or questioned ballots admissible as evidence in a judicial or other investigation, we are of the opinion that they must be sealed and returned with the statement of the officers of election, as required by the statute.”
With this construction of the statute before it, the General Assembly enacted the amendment referred to, with the evident intention that, before «the ballots could be used as evidence in a judicial or other investigation, or, at least, before they were sufficient to overcome the certificate of the • officers as to the result of the vote, there should be additional evidence of the fact that the ballots so offered were those in contest in the polling room. It was the intention of the Legislature that the ballots should be presented in such a way that no oral proof would
For these reasons, the judgment of the lower court is reversed, and remanded with directions to dismiss appellee’s petition.
Dissenting Opinion
(dissenting.)
In construing our present statute governing elections this court has uniformly followed the rule that mistakes of election officers shall not be allowed to disfranchise the voters where the court, from the record as presented, could plainly see the truth. No sound reason can be given why this rule should be applied to the other provisions of the statute and a different rule applied to the section here before us. There is no more reason why the ignorance, mistake, or inadvertence of the election officers under this section should disfranchise the voters of a precinct
For these reasons I dissent from the opinion of the court.