121 Ky. 281 | Ky. Ct. App. | 1905
Opinion by
Affirming.
This action was instituted by the appellant, Henry M. Whitaker, in the Laurel Circuit Court to compel by mandatory injunction the clerk of the county court to remove from under the “log cabin” device of the Republican party, on the poll books to be used at the approaching November election, the name of appellee, George W. Swanner, as the Republican nominee for sheriff of Laurel county, and place in lieu thereof the name of appellant as such nominee of the. party. It is averred in the petition that a primary election was held in the county December 17, 1904, by resolution and call of the Republican party committee to nominate Republican candidates for county offices; that appellant and appellee Swanner were candidates before and in such primary election for the Republican nomination for the office of sheriff, and both were voted for; but that the Republican county committee, after canvassing and counting the ballots cast in the primary election, wrongfully found that appellee Swanner had received a majority of the votes east, illegally declared him the Republican nominee for the office of sheriff, and gave him a certificate to that effect, by means of which he secured, as such nominee, the position under the Republican device upon the ballots for use at the November election, 1905. It is further averred in the
It will be observed that the petition concedes that the primary election was duly called by the Republican county committee, which is the governing authority; that it was held by officers of their appointment; and that, following the holding thereof, the
All the authorities, supra, hold that when one who Was a candidate for a party nomination at a primary election claims to have been illegally deprived of the nomination by the wrongful acts of the governing authority of the party, either in the manner of conducting the election or in ascertaining and determining the result, he must, if relief is sought, resort to the remedy provided by Ky. Stats. 1903, sec. 1563, which allows the right of contest before the governing authority of the party, who shall thereupon de
We think the circuit court was also without jurisdiction to determine in this action the further-question raised by the petition, viz., that in securing his nomination by the purchase of votes with money and whisky appellee Swanner disqualified himself for holding the office of- sheriff, if elected, and forfeited his right to the nomination. If he secured votes at the primary election by bribery, and appellant in a contest before the county committee had made proof of that fact to the satisfaction of the committee, it would have been their duty to determine to what extent the fairness.and validity of the primary was affected thereby, or whether appellee Swanner should have been refused the nomination as the Republican candidate for sheriff by reason thereof. The question of whether or not he was guilty of the offense of bribery in connection with the primary election can not be collaterally inquired into, as here attempted, but can be determined in a direct proceeding and trial by jury under indictment, (Commonwealth v. Jones, 73 Ky., 725.)
Wherefore the judgment is affirmed.