Wilson v. Tye

122 Ky. 508 | Ky. Ct. App. | 1906

OpiNioN by

Judge Nunn

— Affirming.

The appellant and appellee were opposing candidates for the office- of county; superintendent of common schools for Whitley county, at the November election, 1905.. The board of election commissioners for that county canvassed the returns, and found that the ¿ppellee had received a majority of votes east, and the board issued to her a certificate of election. On November 25, 1905, appellant filed a petition, under section 1596a of the Kentucky Statute 1903 and made appellee a defendant, and sought to have the court declare that she was not elected to the office; but that he was. He alleged in substance that she was not eligible or legally qualified to hold and perform the duties of the office, for the reason that she was not twenty-four years of age, at the time of her pretended election, nor would she be on January 1st, succeeding her pretended election, the time fixed by the statute for her to take the oath and assume the duties of the office. He also alleged that she was ineligible for the reason that she was a woman. He further averred that the ballots furnished by the county clerk used in the election, in the various voting precincts were illegal and void, and for that reason tire election should be declared void.

On December 16,1905, the appellee filed her answer, controverting the petition, and asserted that appellant and the county clerk, an ardent supporter of his, were responsible for the kind of ballots which were used at the election. On December 22, 1905, the appellant filed his reply which completed the pleadings. The apellant completed the taking of his proof, on January 6. 1906. 'The appellee did not take any testimony. On the 26th of January, 1906, the court made the following order: ‘ ‘ This canse having been submitted to the court on the motion of the tíontestee to require the contestant to elect whether the statements in the petition to the effect that contestant was duly elected to the office of common school superintendent in and for "Whitley county, Ky., at the election which was held in said county on the 7th day of November, 1905, shall be stricken therefrom, or as'to whether these statements therein to the effect that the election was void shall be stricken therefrom, and the court being advised, sustains the motion, to which the contestant excepts; but, being required to make the election, then and there elected that the statements in the petition to the effect that said election held on the 7th "day of November, 1905, was void, shall be stricken therefrom, which is done, to all of which the contestant excepts.” The appellant complains of this action of tire court. We are of the opinion that appellant’s rights were not prejudiced, by the action of the court in this matter. He had completed his proof before this order was made, and he had introduced no testimony, tending to show that the election was void. On February 3, 1906, the court tried the case, and found that the contestant had not shown 1tim.sp.lf entitled to the relief sought, and dismissed his petition. After a careful consideration of the former and present statutes upon the subject of contested elections we have arrived at the conclusion that the lower court did not err in dismissing appellant’s petition.

Under the provisions of Rev. Stats. c. 32, art. 7, section 1, subsec. 8, p. 444, Gen. Stats, c. 33, art. 7, section 1, subsec. 8, p. 520, Ky. Stats. 1899, section 1531, subsec.-8, those authorized by law to determine the rights of the parties in contested election cases were expressly, authorized to pass upon the question as to whether or not the person who had received the certificate of election was eligible or legally qualified to hold the office at the time of the election, or at. the time the persons should have been inducted into office; but this provision was repealed by an act of the Legislature, October 24, 19,00, and, in lieu thereof, the following provision was inserted: “In case it shall appear from an inspection of the whole record that there has been such-fraud, intimidation, bribeiy, or violence in the conduct of the election that neither' contestant nor conteste© can be adjudged to have been fairly elected, the circuit court, subject to revision by appeal, or the Court of Appeals finally may adjudge that there has been no election. In such event'the office shall be deemed'vacant, with the same legal -effect as if the person elected had refused to-qualify.” Section 1596a of the act of 1900, with all of its subsections, was especially enacted to give the courts the right to try contested election cases, in lieu of board of contest, and it defines the powers of the court and the rules of procedure in the trial thereof; this statute prescribes a special mode of procedure, and the court is compelled to conform to it in the trial of contested elections. It provides a speedy remedy. It prescribes within what time the petition, answer, and reply shall be filed, and within what time each of the parties must take their proof, and it requires both the circuit and court of appeals to hear and determine the case as speedily as possible, giving it preference over all other eases, and then defines how the court shall try it by ascertaining from the record who was elected; but if it appeared, that there had been such fraud, intimidation, bribery, or violence in the conduct of the election that neither the contestant nor contestee could be adjudged to have been fairly elected, the court, in such event, should adjudge that there had been no 'election.

In our opinion when the General Assembly enacted this statute, in lieu of the former statute, with reference to the trial of contested elections, it w'as intended to relegate the question of eligibility or legal qualifications for the office to a different or other mode of procedure. Consequently the lower court was without power in this action to pass upon the eligibility of the contestee to the office in contest.

■ For these reasons, the judgment of the lower court is affirmed.