155 Ky. 784 | Ky. Ct. App. | 1913
Opinion op the Court by
Overruling’ motion to dissolve or modify injunction.
This case comes before me on a motion to modify or dissolve a mandatory injunction issued by tbe Hon. M. M. Redwine, judge of tbe Tbirty-second Judicial District. Tbe facts upon which tbe mandatory injunction was granted by Judge Redwine are these: At tbe November election, 1913, George W. Potter was tbe Democratic candidate for tbe office of superintendent of common schools of Pike County, and M. P. Campbell was tbe Republican candidate for this office, there being no other
Hi Pauley is and was the sheriff of Pike County, and J. D. Meade was and is the duly appointed and qualified member of the board of election commissioners of Pike County for the Republican party. On and prior to November 7th J. R. Johnson, Jr., was the regularly appointed and qualified Democratic member of the' board of election commissioners for that county, but on November 8th Johnson, who was unable on November 7th on account of illness to perform the duties of the office, resigned, and on the same day S. M. Cecil was duly appointed to fill the vacancy occasioned by the resignation of Johnson, and thereupon qualified and became the Democratic member of the board of election commissioners. J. A. Scott was and is the circuit court clerk of Pike County.
On November 7th, the day appointed by law for the election commissioners to meet and canvass the returns, there was .present when the commissioners met, Pauley, the sheriff, and Meade,' the Republican member of the board, Johnson, the Democratic member’ being absent on account of illness. Before the board of commissioners took any action toward canvassing the returns, Pauley, the sheriff, conceiving that he was disqualified to act as a member of the board, left the room in which the commissioners had assembled, and thereupon J. A. Scott, circuit court clerk of Pike County, supposing that he had authority to act in the place of Pauley, took the. place of Pauley as a member of the board. The board as thus organized consisted of Scott and Meade. This board, after canvassing the returns of the election offi-. cers in the manner they believed they had the right to canvass them, found that Campbell had received 3,503 votes and Potter 3,499 votes, and thereupon Scott and' Meade signed, issued and delivered to Campbell a certificate showing his election to the office of county superintendent.
On November 11th this suit in equity was brought by Potter against Campbell, Pauley, Scott, Meade and Cecil. The petition, after setting out in a general way the facts heretofore stated, averred that on the face of
Tbe petition further asked a mandatory injunction against Pauley, Meade and Cecil, compelling them to meet together in tbe county clerk’s office of Pike County ■and canvass and certify tbe votes for tbe office of county superintendent of schools in tbe race between Campbell and Potter, and award a certificate of election to tbe candidate having tbe highest number of votes as shown on tbe face of tbe returns as made by tbe election officers. It was further asked that Scott, as circuit clerk, be restrained from acting with or taking any part in tbe proceedings of tbe board.
It further appears from tbe answer and affidavits filed with tbe record that Pauley, tbe sheriff, declined to act as a member of tbe board of election commissioners because be believed be was disqualified, for tbe reason that two persons who bad been and were his deputies were candidates for tbe office of sheriff of Pike County at tbe November election, 1913, and that tbe circuit clerk believed it to be bis duty to act in tbe place of tbe sheriff when tbe sheriff was disqualified.
It further appears from tbe affidavits that tbe returns as certified to by tbe election officers showed that Potter bad received a majority of 142 votes, but Scott and Meade, exercising tbe duties of election commissioners, came to tbe conclusion from tbe facts and evidence at their disposal that tbe election officers in several precincts bad erroneously and improperly counted twice for Potter and Campbell tbe votes pf tbe women who bad voted for each of them. This mistake, as these persons acting as election commissioners be
It may here be observed that we do not mean to say that this character of mistake was made by tbe election officers or that any mistake of any kind was made by them in certifying tbe number of votes received by Potter and Campbell. We merely mention this matter for tbe purpose of explaining the position of Scott and Meade, who, in canvassing tbe returns for this office, deducted from tbe votes received by Potter and Campbell as certified to in tbe general certificate signed by tbe officers of tbe election tbe votes of tbe women that it was certified each of them bad received. By this process of canvassing, tbe returns showed, as Scott and Meade claimed, that Campbell received tbe majority of tbe votes.
Upon these facts Judge Redwine granted tbe mandatory injunction applied for and directed “Hi Pauley, ■sheriff, and J. D. Meade and S. M. Cecil, members of tbe board of election commissioners for Pike County to meet together in tbe county court clerk’s office of Pike-ville and count, canvass and certify tbe returns in tbe race between tbe plaintiff, Potter, and tbe defendant, Campbell, for superintendent of common schools of Pike County at tbe election held November 4, 1913, and to issue and award a certificate of election to tbe candidate in said race having tbe highest number of votes on tbe face of .the returns as certified to by tbe precinct officers of tbe election, in accordance with tbe prayer of tbe petition. It is further ordered that said board be and is hereby ordered and enjoined and restrained from making any changes in tbe face of tbe returns as certified to them by tbe precinct officers of said election. It is
Four questions are presented for decision. First, was a mandatory injunction the proper remedy, or should Potter have proceeded by a mandamus ? Second, who composed the board of election commissioners, and what will disqualify the regular commissioners from acting, and if one of them is disqualified, who shall take his place? Third, the discretion and powers of election commissioners in canvassing returns. Fourth, was the order issued by Judge Redwine too broad.
In cases like this, is a mandatory injunction the proper remedy or should relief be sought by a mandamus? There is no doubt that members of the board of election commissioners, who are ministerial officers, may be compelled by a mandamus to assemble and discharge the duties required of them by law; Civil Code, section 477; Anderson v. Likens, 104 Ky., 699; Weaver v. Toney, 107 Ky., 419; McEwen v. Cary, 123 Ky., 536. But the remedy by a mandamus would in many cases be too slow to afford adequate relief, and so we have written in more than one case that a mandatory injunction may be issued upon a proper statement of facts to compel election commissioners to assemble and perform their duty; Denny v. Bosworth, 113 Ky., 785; Bennett v. Richards, 83 S. W., 154; Mason v. Byrley, 26 Ky. Law Rep., 487.
It is provided in section 1596a, subsection 2, of the Kentucky Statutes, that the county board of election commissioners shall consist of three members, two of whom shall be appointed respectively by the authorities of the two dominant political parties of the State, the sheriff of the county to be third member, and that “the sheriff of the county by virtue of his office shall be a member of said board, and shall preside at its meetings, and in case of disagreement between the other members of said board, acting as umpire, he shall be permitted to vote.”
It is further provided in this sub-section that “A majority of said board, consisting of the two members appointed as aforesaid from said two political parties, or one of said two members and the sheriff of the county
In sub-section 5 it is provided that “Any two of the members of said board may constitute the board, but if either be a candidate he shall have no voice in the decision of his own case.”
Section 1596a is an act passed by the Legislature in 1900, and was not a part of the general election law of the State which was adopted in 1892. This act does not undertake to regulate elections in a general way but only deals with boards of election commissioners, their appointment, qualifications and duties; the appointment and qualifications of election officers, and the manner of contesting elections. There are some other matters incidental to these embraced in the act, but the subjects mentioned are the principal ones covered by the act.
Under the provisions of the general election law of 1892 the sheriff of the county is charged with many duties relating to elections, some of them being the delivering of ballot boxes and the securing of places to hold the election. It is also provided in section 1451 of this general law that “If the office of sheriff is vacant, or if the sheriff, or his deputy, is a candidate at any election, all his duties pertaining to that election shall be performed by the coroner and such deputies as he may appoint for that purpose. If the coroner is absent, or his office vacant, or he is a candidate, then such duties of the sheriff shall be performed by some person appointed for that purpose by the presiding judge of the county court, and the deputies of such person.”
This section has reference to the duties the sheriff is required to perform in connection with and preliminary to the holding of the election excepting the appointment of election officers and does not include any duties that he performs as a member of the board of election commissioners. Under section 1451 if the office of sheriff is vacant, or if the sheriff or any of his deputies is a candidate, then all the duties imposed by law upon
It will be observed that there are two distinct statutes relating to the powers, duties and qualifications of the sheriff in the discharge of his duties under the election law. One of these is the general election law of 1892 and the other is the act of 1900, now section 1596a. Bach of these statutes in respect to the matter under consideration is complete in itself and relates to widely separated duties the sheriff is called on to perform.
It is provided in sub-section 5 of section 1596a that when the sheriff comes to act as a member of the board of election commissioners in canvassing returns he shall have no voice in the decision of his own case, if he be a candidate, but if he is not a candidate and is able to perform the duties of election commissioner in this respect then he must act, and even if he be a candidate he must nevertheless act as a member of the board in performing this duty except that he shall not take any part in the decision of his own case. If, however, there is no sheriff, or from any cause he cannot act as a member, the circuit court clerk shall act in his place. But the causes that will prevent the sheriff from acting as a member of the board in the performance of any of the duties required by the act are manifestly such causes as physically or mentally disqualified him from acting, or causes arising from his enforced absence. The fact that he is a candidate, or that his deputies are candidates, does not disqualify him from acting as a member of the board.
From these views it necessarily follows that the circuit court clerk, Scott, had no authority tó act as a member of the board of election commissioners, and, therefore, what he did was a nullity. It also follows that the election returns were not canvassed by the board of
The case of Batman v. Megowan, 1 Met., 533, is relied on as authority for the position that, as under section 1451 the sheriff was disqualified to act in the preliminary stages of the election on account of the fact that his deputies were candidates, this disqualification also prohibited him from acting as a member of the board of election commissioners. The court so held in this case, but the statute involved was quite different from the one now in force.
What discretion and powers have the board of election commissioners in canvassing returns? The election law provides in section 1483 that the election officers shall certify on the stub books the number of votes cast for each candidate, and if there are no disputed ballots returned by the election officers, the duties of the board of election commissioners are confined strictly to adding up the votes cast for each candidate, as shown by the certificate of the election officers, and when they have thus added up the votes, it is their duty to issue the certificate to that candidate who has received, according to the certificates of the election officers, a majority of the votes. They have no power to go behind, the returns made by the election officers or to inquire into the correctness of their certificates showing the number of votes cast for the various candidates. Their duties are purely ministerial. They have no discretion whatever to exercise.
If, however, disputed ballots have been returned by the election officers, the board of commissioners are invested with discretion as to -them. Section 1482 provides that: “If there are any ballots cast and counted or left uncounted, concerning the legality or regularity of which there is any doubt or difference of opinion in the minds of the judges of the election, said ballots shall be placed in the large linen envelope furnished by the county court clerk for that purpose and sealed up, and across the seal thereof the officers of the election shall plainly write their names, and at the point of the seal indicated for that purpose the judges of the election shall, in the presence of the clerk and the sheriff, place the county election seal in hot wax, as above described,
If any disputed ballots are returned in this manner by the officers of election, it is the duty of the board of election commissioners to examine these ballots and determine for whom they should or should not be counted, and if, in their judgment, any of these ballots should have been counted for any candidate but the statement of the election officers show they have not been so counted, the board should add to the vote certified by the election officers the additional votes found in these disputed ballots that should have been counted for such candidate, and then issue the certificate to the candidate who has received a majority of the votes. On the other hand, if the statement of the election officers shows that these disputed ballots, or any of them, have been counted for any candidate, and the board of election commissioners reach the conclusion that the ballots so counted should not have been counted, it is their duty to subtract the votes found in the disputed ballots that should not have been counted from the vote the election officers certified the candidate received, and then issue the certificate to the candidate who received a majority of the votes. In Houston v. Steele, 98 Ky., 596, and in Booe, County Judge v. Kenner, 105 Ky., 517, the discretion and duty of the board of election commissioners in respect to the disputed ballots is fully discussed.
The remaining question is, was the order issued by Judge Bedwine too broad? The record does not show that any disputed ballots were returned by the election officers in this race, and, therefore, assuming this to be true the order of Judge Redwine is not too broad, as the only duty the board of election commissioners had to perform was the purely ministerial one of adding up the number of votes received by each of these candidates and issuing the certificate to that candidate who, according to the certificate of the election officers had received a majority of the votes, and this ministerial duty it was proper to compel the board of election commissioners by a mandatory injunction to assemble and perform.
It might perhaps be well here to add for the guidance of the election commissioners that if the election officers observe the requirements of section 1482, they must accompany the disputed ballots with a statement signed by the officers showing whether or not any of these ballots were counted, and if so, for whom, and the commissioners have a right to examine these disputed ballots and decide for whom they should be counted, if counted at all.
If, however, these disputed or questioned ballots are not identified as required by section 1482, or if the statement of the election officers accompanying them does not show how they were acted on by the election officers, the board should not consider them at all or add any of them to or subtract any of them from the vote of any candidate as certified to by the election officers. In other words, they should ignore the disputed ballots entirely unless they are identified in the manner indicated by
When the board has canvassed the returns as herein indicated, they should issue the certificate to that candidate who has received a majority of all the votes, and after the certificate has been issued, either of the parties who feels himself aggrieved may contest the election in the manner provided by law.
The motion to dissolve or modify the injunction issued by Judge Redwine is overruled.
