156 Ky. 319 | Ky. Ct. App. | 1913
Opinion by
Overruling Motion to Dissolve Injunction.
At tbe Riddell Precinct in Estill county at tbe November election in 1913, tbe election officers after count
The propriety of the injunction as to the election officers is disposed of in the case of Hugh Riddell v. Hardin Childers, etc., this day decided, the case here being stronger for the plaintiffs' than in that case; for the reason that the election officers made and signed four certificates showing the number of votes received by each candidate at the precinct, and this was a substantial compliance with the statute. (Anderson v. Likens, 104 Ky. 712.)
It remains therefore only to pass upon the propriety of the injunction as to the county board of election commissioners. In Clark v. McKenzie, 7 Bush, 523, the election commissioners failed to count 29 votes cast for Clark and issued a certificate to his opponent. Clark thereupon brought a suit to require the board by mandamus to count these votes and issue to him the certificate. Sustaining the circuit court in granting the mandamus, the court, after pointing out the duties required of the Board, said:
“Such duties are purely ministerial and the officers composing the examining board can be compelled by mandamus to perform them. In case the board refuses to is
This case was followed and approved in Howes v. Walker, 92 Ky., 258, and in City of Louisville v. Board of Park Commissioners, 112 Ky., 409. In the latter case the board had issued a certificate and left uncounted a number of precincts in the city; although more than six months had elapsed, and a new board had come in, the mandamus was awarded. These cases were recently approved in McKay v. Grundy, 155 Ky., 116, where the election commissioners had issued a certificate leaving out one precinct upon just such facts as we have here. The court said:
“In excluding the New Hope precinct the election commissioners were clearly mistaken as to their duty,
Counsel is mistaken in supposing that the case of Steele v. Meade, 98 Ky., 614, or Booe v. Kinner, 105 Ky., 521, or Back v. Spencer, 68 S. W., 442, in any wise conflicts with the cases cited. In Steele v. Meade, the court recognizing the rule laid down in Clark v. McKenzie, said:
“If the canvassing hoard improperly performed its duty, then the writ of mandamus was the proper remedy; but if it did so properly, according to the returns before it, the remedy of the appellant was by inaugurating a contest before the proper board, as provided by statute in such cases.”
In the case at bar the canvassing board as shown below improperly performed its duty. In Booe v. Kinner, the question was whether the canvassing board could be directed by mandamus how they should count the disputed ballots. In that opinion the previous cases are recognized as authority where the duties of the board are merely ministerial, and the decision is put merely upon the ground that the board must exercise a discretion in counting the disputed ballots, and that this discretion cannot be controlled by mandamus, but that in the performance of its purely ministerial duty to open the envelope and examine the ballots, and to tabulate the votes actually counted by the election officers, they may be controlled by mandamus. In Back v. Spencer it was insisted that one of the returns was a forgery, and it was held that the board of canvassers must simply canvass the returns as made to them, they having no power to hear evidence and determine upon the genuineness of the returns.
In Mason v. Byrley, 84 S. W., 767, the canvassing board had not been properly constituted, and there had been no legal meeting of the board or legal action by it. The injunction was sustained on this ground; but in discussing the question, Judge Settle before whom the motion to dissolve the injunction was made, said that where •a canvass of the returns has been made, and the result of the election declared by the officers charged by law with the performance of that duty, no power exists in such officers to make a recount, and that the chancellor will not compel them to do so. This is earnestly relied on here; but it is in effect only what was said in Steele v. Meade and it does not apply; for here the board has not
It is the duty of the board under the statute to examine and canvass the returns of the election and give triplicate or more written certificates of election over their signatures of those who have received the highest number of votes. The board has not finished its work when it canvasses only a part of the returns; and when in canvassing the returns the board reaches a precinct which is not properly certified, it is their duty to give notice of the fact to the election officers and the parties in interest, and allow a reasonable time for the error to be corrected. To hold otherwise would be to hold out a premium for trickery, and destroy confidence in elections. Not unfrequently in presidential elections, the returns from some of the states have not been made as required by law; but it has been a universal custom to give notice of the defect and allow the mistake to be corrected. The same thing often happens with the state canvassing board, and so far as we know, the same rule has always been followed. Any other rule would allow the certificate of election to depend not upon the vote of the people, but upon the conduct of the election officers. The rule is to give effect to elections if the true result can be ascertained, and this rule applies to the county board of canvassers no less than other boards.
The board having canvassed only a part of the returns and issued a certificate without giving an opportunity for the missing certificate to be supplied, violated its duty, and having failed to perform its duty, was properly required by the circuit court to meet again and perform it.
The motion to dissolve the injunction is overruled.