191 Ky. 58 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming as to Eliza Pile and reversing as to Robert Weatherford, Tice McCoy, Mike Lyddan and C. L. Miller.
The .county board of education is composed of five members, and at the November election, 1920, there were six candidates for membership on the Breckinridge county board of education. The vote was as follows: Eliza Pile, 2,506; Robert Weatherford, 2,046; Tice McCoy, 2,069; Mike Lyddan, 2,045; C. L. Miller, 2,197 and Gr. A. Wright, 1,981. There were four graded white school districts in the county, but no districts having independent school systems for colored children. In the white graded school districts there were 350 colored voters. Of these about 220 demanded ballots and offered to vote in the school election, but were denied the right to vote.
Gr. A. Wright brought suit against Eliza Pile and the other candidates who received certificates of election, for the purpose of having the election declared void. The petition was dismissed and Wright appeals.
The principal question to be decided is whether colored voters who do not reside in colored districts, having independent systems of schools, but do reside within white graded school districts, have the right to vote for members of the county board of education. The applicable portion of the statute is as follows: “There is hereby created in each county of the Commonwealth of Kentucky, a county board of education which shall be composed of five members elected by the qualified voters of the county, exclusive of voters residing in cities of the first, second, third and fourth class, or city or district having an independent school system of its own.” Section 1, chapter 36, Acts 1920, p. 148. The question turns on the meaning of the words ‘ ‘ exclusive of voters resid
The lower court found that at least 220 colored voters offered to vote but were denied the right to vote. If all the'se votes be added to those of contestants, his total vote will not equal the votes of Eliza Pile. That being true, it is clear that the exclusion of the 220 votes in no wise affected her election. However, if the 220 votes be added to those received by contestant, his total will exceed the number of votes received by Weatherford, McCoy, Lyddan and Miller. Therefore, so |ar as Weather-ford, McCoy, Lyddan and Miller are concerned, the case is one where ten per cent, of the legal voters were denied the right to vote, and the number was sufficient to affect the result. In such a case the election will be set aside on the ground that it can not be determined with certainty that the result, as certified by the canvassing board, represented the will of the majority of the voters. Walbrecht v. Ingram, 164 Ky. 463, 175 S. W. 1022.
Wherefore the judgment is affirmed as to Eliza Pile and reversed as to Robert Weatherford, Tice McCoy, Mike Lyddan and C. L. Miller, with directions to declare their election void.
Whole court sitting.