194 Ky. 804 | Ky. Ct. App. | 1922
(Opinion of the Court by
Affirming.
This action involved the question of whether the appellant or appellee, or either, was elected to the office of city prosecuting attorney of the city of Hopkinsville, at the regular November election, 1921, for the ensuing term; of four years. The circuit court decided that neither was • elected, and as a result that the office was vacant. The' appellee conceded the judgment of the court to have been'correct, but the appellant, being dissatisfied with the decision, has appealed.
Hopkinsville is a city of the third class, and more than one year previous to the election ■ in 1921, had adopted the commission form of government, and had organized under the provisions of the act which controls' that form of government in a city of the third class, and had for some time been proceeding under that organization. The act referred to is embraced by section 3480b-l to section 3480b-29, inclusive, of the Kentucky Statutes, 1922 edition. Ten days before the November election in 1921, the appellee filed a petition of twenty odd voters ' nominating him for the office with the clerk of the county-court, and that official caused his name to be printed upon the ballots to be used in the city election, as a candidate* for the office, and provided, also on the ballot, a blank line under the designation of the office with a square opposite, as in ballots used in the general elections. At the election 1,385 electors stamped a cross mark in the square opposite to the printed name of appellee, and 76 electors wrote the name- of appellant in the blank line upon the ballots under the designation of the office of city prose-* outing attorney, and stamped a cross mark in the square opposte to the written name. The election commissioners
These contentions seem to be sound. In Wood v. Deatherage, 185 Ky. 418, it was held that thé amendment of 19Í8 requiring a petition to be filed with the clerk of the county court forty-five days before the election did not apply to candidates for municipal offices, and a filing of fifteen days prior to the'election was sufficient to entitle the name to be placed upon the ballots, but in this instance the petition of appellee was filed with the clerk only ten days before the election, and hence the votes counted for him were void. The section of the statute that requires a petition, under section 1453, supra, to be filed with thé clerk of the county court fifteen days before the election.is mandatory, and unless such is-done the printing of the name of the applicant upon the ballots is unauthorized. Justice v. Justice, 184 Ky. 130; Brody v. Hook, 121 S. W. 879; Daniels v. Blankenship, 198 S. W.
The appellee while conceding that he was not legally elected, and that the votes apparently cast for him could not be lawfully counted for him-, contends that the appellant not having been nominated at the primary held for the nomination of candidates in the city, under the commission form of government, and his name never having been certified to the county clerk as having been nominated, that the clerk was not authorized to put his name upon the ballots, and -that no one was authorized-so to do, and hence that any votes cast for the appellant .by the elector writing his name upon the ballot and stamping his choice in a square opposite his name was illegal and unauthorized and therefore such a vote was void, and relies for support of-his contentions on the provisions of-section 3480b-6, supra, and Herman v. Lampe, 175 Ky. 109.
One who by a contested election seeks to have -himself adjudged elected to an office must show his'- own -electioh to the office. The fact that his adversary was. not elected will not dispense with the necessity of proving his own election to make a recovery, and although lie-,is-not able to prove his own election, he may show that his adversary was not elected. Francis v. Sturgill, 163 Ky. 650. The question thus to be decided is whether the seventy-six votes which the appellant received at the election are sufficient to entitle him to recover the office. ‘ If these votes were illegal, they could not be counted- for him, and hence he would be in the same condition as.the appellee, who had 1,385 illegal votes* counted for him. The legislature is authorized to prescribe the qualifications .of municipal officers, and an individual must possess the prescribed qualifications to be eligible to hold the office— that is he must possess the statutory qualifications-and eligibility as relating to statutory or constitutional qualifications, is not a subject strictly for determination ill a
“No person shall be elected without first having been nominated in the manner hereinafter prescribed. . . .” Then follows the manner of the primary, and the requirements touching it. It is true, the remaining sections of the statute make no reference to the office of city prosecuting attorney, nor are there any specific requirements as to his election, but, if he is an elective officer and the office is to be filled at the municipal election, the above quotation from the statute which prescribes that no person shall be elected without first having been nominated in the primary must necessarily include the office of city prosecuting attorney. It is not conceivable, that it wfis intended, that nominations of candidates for it should not be.made in the primary provided for all the other electivó officers of the city, but, that an incumbent for it was left to be selected at the regular primary for the nomination of county, state and district officers, when the object and purpose of the adoption of the commission form of government was to eradicate all party political considerations in the selection of the officers for the city. In Herman v. Lampe, 175 Ky. 109, it .was said that in as much, as the General Assembly Avas empowered to prescribe the qualifications of municipal officers, and had provided -that no one under the commission form of gov
The failure to make a provision upon the ballots to enable voters to vote for one to fill an office, who is ineligible to hold it, or to prohibit the voting for one whose ineligibility to hold the office appears to every voter by the name not being printed upon the ballots as a candidate, can, not be 'said to he an infringement of the right of suffrage or contrary to section 6 of the Constitution, which provides for the freedom and equality of elections.
The judgment is therefore affirmed.