126 Ky. 114 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
On November 6, 1906, there was an election in the . district of Highlands in Campbell county of seven trustees. There were two tickets — one known as the “Open Book Ticket” and the other as the “People’s Home Ticket.” Louis Cook was on the former, and H. A. Stegeman on the latter. When the vote was counted, Cook received 240 votes by the official count and Stegeman 239. There were six other candidates who received a larger vote than either of them.
The fact that the election officers did not return, any of the ballots as questioned, and put them all in the box as counted, is not material. If the election officers count a ballot that should not be counted, the fact that the validity of the ballot was not questioned before them does not prevent the defeated candidate from contesting it on a contest of the election. By section 1471, Ky. St. 1903, if an elector mark more names than there are persons to be elected for the office, his ballot shall not be counted for the office. 'The ballot, therefore, which was marked for eight 'trustees was void, and could-not.be counted for any
■ By subsection 5 of section 1596a, Ky. St. 1903, it is the duty of the county election commissioners to canvass the returns, and give certificates over their signatures of the number of votes given in the county, city, town, district, or precinct, as the case may be, and by subsection 12, where the board of canvassers find that two or more have received an equal number of votes for the same office, they shall by lot determine which of the candidates is elected. As neither Stegeman nor Cook received a greater number of votes than the other, neither is entitled to the office; but Stegeman has a legal right to have the tie determined as provided by the statute. When an election is contested, and a tie is made apparent in the circuit court upon the contest,- the court, under the power to determine the case, should settle "the tie vote by lot-as provided by the statute. On the return of the case to the circuit court this will be done. The
Judgment reversed and cause remanded to the circuit court, with directions to determine by lot who was elected, and enter a judgment for the person entitled thereto.