113 Ky. 694 | Ky. Ct. App. | 1902
Lead Opinion
Opinion of the court by
Reversing.
Appellee, John B. Horst, was a candidate for county
By section 1 of the act approved October 16, 1900 (see Acts Called Pess., 1900, p. 6), it is provided, in reference to petitions for a name to be placed on the ballot, as follows:
By the same section it is provided that, if any political party entitled to nominate by convention shall in any case fail to do so, the names of all nominees by petition for any office who shall be designated in their petition as members of and candidates of such party shall be printed under the device and title on the ballots, as if nominated by a convention. Fnder this provision .it. is immaterial whether the party authorities refuse or fail to act. A refusal is a failure to nominate. The clerk is not required to look beyond the records of his office. If there has not been filed in his office evidence of the action of the party in making a nomination by convention, or other party action, and a petition is filed, the condition referred to in the statute1 is fulfilled, and the candidate, by petition, is entitled to go on the ballot. The nonaction by the party gives the right to file the petition, and, whether the party had acted or not, the clerlr is only required to know from the records of his office. If two or more petitions are filed, asking that different candidates for the same office be placed under the same party device, by section 4 of the act it must be given to the one which first selected it, and the clerk must select a suitable device for the other.
But the party has the right, until the time for filing cer
Appellant’s petition, therefore, when it was filed, stated no cause of action,_ and he had none when the judgment was entered. The judgment is therefore reversed, with directions to dismiss the petition.
Dissenting Opinion
dissents from so much of the opinion as holds that the first person filing a petition is entitled to preference.