156 Ky. 315 | Ky. Ct. App. | 1913
Opinion of the Court by
Overruling Motion to Dissolve Injunction.
“It is evident that these votes were cast for plaintiff, Bennett, and that he is entitled to them. There is no pretense that the officers referred to were guilty of any wrongful or improper conduct. The only reason why plaintiff was in danger of losing these votes was because of the inadvertence or oversight of the election officers. The persons who cast these votes and the plaintiff should not lose them on this account. If there was anything in the record showing any fraudulent or improper conduct or acts of these officials, or anything impugning the verity of these votes, the case would be different. The facts of this case make it appear that the only thing to be done— the certifying of the votes by these officials — are ministerial acts. ’ ’
The question.was before us again in Preston v. Price, 85 S. W., 1183, and in that case we said:
“In Big Gap precinct the officers of election did not sign and return a certificate on the stub book, as required by the statute; but only the clerk of the election- signed the certificate. The officers of the election, however, all testified to the accuracy of the returns, and offered to sign them. There is no dispute as to the fairness of the election or the correctness of the count. It was simply a mistake on the part of the election officers as to their duty in making .'the certificate. This is not sufficient to justify the throwing out of the precinct. The officers should have been allowed to sign the returns when they offered to do so, but the failure of the court to have this done worked no substantial prejudice to appellant.”
The question again arose in McEuen v. Carey, 123 Ky., 536, where referring to the previous opinions, we said:
“It was the duty of the officers to return a true statement of the vote as shown on the tally sheet, and until this was done they had not performed their whole duty in the premises; and had they refused to make the correction, it is well settled in this State, that they would have been compelled to do so by writ of mandamus.”
Section 1482 Ky. Stats., requires the election officers to immediately count the ballots and make a tally sheet of the count in the voting- room and without adjournment or separation of .the officers. This tally sheet they are required by the statute among other things to place in the ballot box and return the ballot box to the county clerk. The tally sheet, if the officers did their duty, would show how the votes were east and counted. If they did not do their duty in this respect, then the result is that they have failed as required by law to count the votes for the office of circuit judge; and if they failed to count the ballots they have so far failed to do their duty, and may properly be required to do now what they should have done then. Election officers do not have it in their power by mere failure to do their duty to defeat the will of the people as expressed at the polls. The certificate of election is a valuable right; it entitles the holder to qualify at the beginning of the term; it gives him a prima facie right to the office; and these valuable rights may not be defeated by the simple failure of the election officers to do their duty. There is no distinction in this respect between an election of a Congressman and county officer or a State officer. In each case there is no other adequate remedy except a mandatory injunction; for the remedy by contest affords the person who is wronged none of the rights which a certificate of election confers upon him. (See Clark v. McKenzie, 7 Bush, 523, and the cases above cited.)
It appearing from the answer of some of the election officers that they did not know the vote received by each of the candidates for circuit judge, and had no memorandum by which to ascertain such vote, in directing them how to proceed if on assembling, they could not agree on the result of the election, and had no memorandum by which they could ascertain the vote, the court seems to have allowed them to certify the result of the election by agreement on assembling. This was not probably what he meant; for the result of elections is to be determined by the vote cast and not by the agreement of the election officers. If, when the election officers' assemble, they have no statement of the vote made out on the night of the election, which they know to be correct, they should resort to the tally sheet in the ballot box; and'if that is not to be had, and there is no other memorandum of the
The motion to dissolve the injunction is overruled.