159 Ky. 69 | Ky. Ct. App. | 1914
OPINION OP THE COURT BY
— Affirming.
By an act approved March. 12,1912, the new connty of McCreary was created. Acts 1912, chapter 46, page 184, section 7, of that Act, is as follows:
The seat of government or connty seat of said connty shall be located at snch place as may be selected by the voters of said county. It shall be the duty of the county court of said connty, by order entered of record, to call an election to he held, and to direct a poll to be opened at the various voting precincts in said connty, which call shall be made as soon after the establishment of the voting precincts by the commission as above directed, as is practicable, and within ninety days after this act shall take effect and be in force. At said election the proposition for locating the connty seat shall be submitted to the legal voters of said connty. It shall be the duty of the connty court, by orders entered of record, to direct the sheriff of the connty to advertise the said election and the object thereof for at least thirty days before the day thereof, in all newspapers published in said connty, and if none shall be published therein, then by printed handbills posted up at not less than four of the most public places in each precinct and at the door of the building temporarily used for a court house. The officers of said election shall be appointed by the county court, and the county court shall also provide for the form of the ballot to be used at such election. It shall be the duty of the officers of said election in each voting precinct to hold said election for county officers, and said election shall be held during the same hours they are required by law to hold election, and conducted in all respects under the general election law, except that the county court and the two magistrates residing nearest to the temporary seat
Pursuant to the above section an election was held at the regular November election in' 1913. Only two towns entered the contest and submitted their claims at the election. These were Pine Knot and Whitley. Of the votes cast, Whitley received a majority of 184, and (vas awarded the certificate of election.
J. J. Wilson and others, citizens and taxpayers of McCreary County, who favored the location of the county seat at Pine Knot, brought this action in equity for the purpose of contesting the election. A demurrer to the petition was sustained, and the petition dismissed on the ground that the court was without jursdiction to try the contest. The contestants appeal.
This is an election contest pure and simple. No other question or rights are involved. It is the established doctrine in this state that courts of equity have no inherent power to try contested elections, but can only exercise such power where it has been conferred by express enactment or necessary implication therefrom. Pflanz v. Foster, 155 Ky., 15; Harrison v. Stroud, 110 S. W., 828; Patterson v. Knap, 125 Ky., 471. In many other jurisdictions the same rule is followed. McCreary on Elections, 3rd Ed., See. 351; 15 Cyc., 394; 10 Am. & Eng. Ency., 816; Markert v. Sumpter County, 53 Southern, 613.
The act in question does not provide for a contest. It does provide that the election shall be “conducted in all respects under the general election law, except, etc.” It is insisted that as contest proceedings in the courts are authorized by the general election law, the power of courts to hear and determine this proceeding is necessarily implied from the language that the election shall be conducted in all respects under the general election law. In the ease of Pflanz v. Foster a similar question was presented. The question was whether or not the contest provisions of the general election law applied to an election contest arising under the primary election law.
Judgment affirmed.
