113 Ky. 777 | Ky. Ct. App. | 1902
Opinion of the court n\-
Affirming.
The parties to this action were opposing candidates for the office of mayor of the city of Owensboro. The returns of the election officers gave appellee more than 50 majority. The ballots were recounted by the lower court, which resulted in his majority being increased to over 70. The grounds of contest may be summarized as follows: (1) That enough ballots counted for the appellee should have been rejected, by reason of the violation of the mandatory provisions of the statute, as would give appellant a majority of all the legal votes cast. (2) The appellee is not eligible to the office, because lie was not a freeholder at the time of the election.
There were some ballots counted by the election officers and lower court for the appellee where the crosses were not exactly within the circle, some, where the crosses were made by the voters with the butt end of the stencil, produced a circle rather than a cross. It is claimed, if this character of ballots had been rejected, the appellant would have received a majority of the votes cast. The argument is based principally upon llié ground that a part of section 1471, Kentucky Ptatutes, was repealed by the act of October 24,1!)()0. The part of the section that is claimed was repealed reads as follows: “No ballots shall be rejected for any technical error, which does not make it impossible to determine the voters’ choice.” The act approved October 2-1. 1900, was to amend an act entitled, “An act to further regulate the elections,” which became a law March 11, 1898. Acts 1900 (Hp. Scss/) p. 27. It does not purport to be a complete law on the subject of elections. It is simply an amendatory act of the law then in force. Section 17 of
The testimony shows that the Republican judge'at precinct No. 12 explained to some voters, when he handed them ballots, how they could vote the straight Republican ticket (appellee’s name being- under Republican device). His conduct was in violation of law and very reprehensible. There is no evidence as to how these parties voted, to whom these explanations were made, nor is there any evidence that the appellant was prejudiced thereby. The statute prohibiting judges from being guilty of such conduct is mandatory as to the officer, but we are unwilling to disfranchise the voters of that precinct because of his conduct.
Under the charter of the city of Owensboro, no one is eligible to. the office of mayor unless he is a freeholder. The appellee admits that he bought a lot 20x80 feet for the express purpose of making himself eligible to the office of mayor. He contracted to pay $150 for it, and paid $50, and executed his note for the balance of the purchase money. The vendor made him a deed for it, but he did not have it
The judgment is affirmed.
