68 S.W.2d 448 | Ky. Ct. App. | 1934
Reversing. *39
At the regular election held on November 7, 1933, T.N. Newsome, Jr., was the Republican candidate, and Dan W. Wurts was the Democratic candidate, for the office of commissioner in the third district of Boyd county. As counted by the board of election commissioners, Wurts received 6,966 votes and Newsome 6,943 votes, thus giving Wurts a majority of 23. On November 17th following, Newsome filed his petition in the Boyd circuit court asking a recount of the ballots on the ground that by fraud or mistake the election commissioners incorrectly counted, tabulated, and recorded the votes cast, in that they failed to count a large number of legal votes that were cast for plaintiff, and counted for the defendant more votes than he received, and further alleged that a correct recount of the ballots would show that plaintiff received more votes than the defendant. After hearing evidence as to the integrity of the ballots, the court ordered a recount, with the result that Newsome received 6,694 votes and Wurts 6,672 votes. Following this finding the court ordered the election certificate issued to Wurts to be canceled, and directed the commissioners to issue a certificate of election to Newsome. Wurts appeals.
Our conclusions on the various questions presented are as follows:
1. The court held that the integrity of the ballots was satisfactorily shown, and after a careful consideration of all the evidence we see no reason to disturb the court's finding on that question.
2. The right of the court to recount the ballots was challenged on the ground that the statute requires that the petition be filed before the certificate is issued, and that the evidence was insufficient to show that such was the case. The language of the statute, section 1596a-12, Kentucky Statutes, Baldwin's 1933 Supplement, is:
"Provided that if either party desire a recount of the ballots before certificate is issued he shall make request therefor in his petition or answer within ten days after the day of election."
Later on the statute contains these words:
"This proceeding for immediate recount may be asked and prosecuted in the same suit with regular *40 contest grounds, but shall not await the preparation of trial of said contest in either court."
With the exception of the proviso, and certain changes not material to this controversy, the statute, which was enacted in 1930, is substantially the same as section 1596a-12, Kentucky Statutes. Under that statute fraud or mistake of election officers in counting the ballots was a ground of contest. Wolff v. Clark,
3. The statute provides that there shall be printed on the back of the ballot a blank line followed by the word "judge," and that after the ballot has been detached from the stub, and before the ballot is delivered to the voter to be voted on, one of the judges shall sign his name on such blank line, and no ballot not so signed by one of the judges shall be counted by the canvassing board, whose duty it is to certify the result of the election. Section 1460, Kentucky Statutes, Baldwin's 1933 Supplement. In Durbin precinct No. 10, there was a judge by the name of Boyd Bluebaum. All but six votes cast in the precinct were signed either "Boyd B." or "B. B.," and no other judge of the election signed the ballots. The statute is mandatory. The surname is an essential part of an official signature, and the signing by initials, or by one's given name, followed by the initial of his surname, is not a substantial compliance *41
with the statute. Johnson v. Caddell,
4. In Haney precinct No. 52, 133 ballots were cast for Wurts and 112 ballots were cast for Newsome, on all of which there appeared after the word "judge" the name "J.R. Simpson," one of the judges, which name was stamped on the ballots by a rubber stamp in block type letters in ink. These ballots the court declined to count, and the correctness of this ruling is decisive of the recount. In support of the ruling appellee relies upon Kirkpatrick v. Deegans, Board of Canvassers of Fayette County,
5. All the judges participated in the recount, and our conclusions were unanimous. In view of the number of ballots involved, it is not practicable to discuss each ballot and give the reason for our conclusion. It is sufficient to say that wherever there was a mark in front of either candidate's name, and it was reasonably apparent that the mark was made by the voter and not caused in some other way, the ballot was counted. On the other hand, if it was reasonably apparent from the character of the mark, or from other marks appearing on the ballot, that the mark appearing in front of either candidate's name was not the act of the voter, but was a smear resulting from the folding of the ballot, the ballot was not counted.
Of the ballots in Wurts Exhibit No. 1 which were not counted for Wurts by the trial court, we counted the first and tenth ballots for Wurts, thus making a gain of 2 for Wurts.
Of the ballots in Newsome Exhibit A which were not counted for Newsome by the circuit court, we counted for Newsome the seventh ballot, thus making a gain of 1 for Newsome.
Of the ballots in Newsome Exhibit B, the first and second ballots should not have been counted for Wurts, thus making a gain of 2 for Newsome.
Of the ballots in Wurts Exhibit No. 2, the ninth, eleventh, fifteenth, seventeenth, and nineteenth ballots should not have been counted for Newsome, thus making a gain of 5 for Wurts. In reaching this conclusion it is very doubtful whether the fourth and fifth ballots should be counted for Newsome, but we have given him the benefit of the doubt.
Before the recount, Newsome had 22 more votes than Wurts, and gained 3 more more votes on the recount. Wurts gained 21 votes by counting the ballots on which the name of the judge was signed by stamp, and 7 more votes by the count of other ballots, thus giving him a total gain of 28 votes. The result is that Wurts was elected by a majority of 3 votes.
This conclusion makes it unnecessary to determine whether other ballots claimed to have been voted for Wurts should have been counted.
It follows that the court erred in adjudging that *44 Newsome was elected, and that Wurts' certificate of election should be canceled.
Judgment reversed, and cause remanded, with directions to enter judgment in conformity with this opinion.
Whole court sitting.