Anderson v. Likens

47 S.W. 867, 104 Ky. 699, 1898 Ky. LEXIS 214

Opinion

CHIEF JUSTICE LEWIS

delivebed the opinion op the cohbt.

¡á. A. Anderson and G-. B. Likens being opposing candi: dates for tbe office of circuit court clerk of Obio county at tbe November election, 1897, tbe canvassing board found tbe former bad received 2,408 votes, and gave bim a certificate of election, while tbe latter .bad received only 2,393 votes; and that finding was affirmed by tbe contesting board of tbe county. But tbe Obio Circuit Court, to which an appeal was taken, adjudged that Likens bad received a majority of 97 of all tbe votes cast for tbe candidates for circuit clerk at said election, and was duly and legally elected, that the certificate of election issued to Anderson by tbe canvassing board be canceled and held for naught, and that be deliver possession of said office, and all tbe books, papers, and furniture connected therewith, to Likens. On tbe appeal from that judgment various questions arise, necessary to be determined by this court.

Tbe first question we will consider is whether tbe notice of contest was premature. It appears that the finding of tbe canvassing board was made, and certificate of election issued and delivered to Anderson, November 5, 1897, and nptice of contest was served on bim November 13, 1897. But there were sealed envelopes, containing numerous ballots, returned from the various precincts to tbe clerk of the County Court with the returns of tbe election, in compliance or attempted compliance with article 3, section 37, of the election law. Those envelopes not haAdng been opened by tbe canvassing board, and the ballots therein counted or passed on, prior to its finding and delivery of certificate of election to Anderson, the Obio Circuit Court, in a proceeding instituted by Likens November 27, 1897, caused the envelopes to bé opened in court, proceeded to investigate the ballots in order to determine which of them should be counted and for which candidate counted, and thereupon caused a writ of mandamus to be issued, requiring the canvassing board to count said ballots in the manner and for the two candidates, respectively, as then adjudged by the court. It appears that the' canvassing board, in obedience to said writ, on December 1, 1897, reassembled and counted said ballots, but the previous finding was not thereby changed. By section 1508, Ky. Stat., it is provided that within two days next after an election the sheriff shall deposit with the clerk of the County Court the returns of the different precincts. On the next day the canvassing board, composed of the judge of the County Court, the clerk thereof, and the sheriff, or one of his deputies, if he can not act, is required to meet in the clerk’s office between 10 and 12 o’clock in the morn-. ing, open and canvass the returns of such election, and issue triplicate or more written certificates of election, over their signatures, of those who have received the highest number of votes for any office exclusively within the gift of the voters of the county; one copy of the certificate to be retained in the clerk’s office, another delivered to each of the persons elected, and the other forwarded by the county clerk to the Secretary of State, at the seat of government. Section 1534 provides that the judge of the County Court and two justices of the peace residing nearest to the court house in each county shall be a board for determining the contested election of any officer elected by the voters of the county or any district therein. Section 1535 provides that no application to contest the election of an officer shall be heard unless notice thereof, in writing, signed by the party contesting, be given, in the case of a Circuit Court clerk, within ten days after the final action of the board of canvassers. Whether the notice of contest in this case was premature depends upon when, in meaning of the statute, the final action of the board of canvassers, or in the language of subsection 2, section 1534, “the decision” of that board, occurs. It is plain to us that the issual and delivery of the triplicate certificates provided for in section 1508, which' follows the opening and canvassing of the returns as therein provided, is the final action of the canvassing board, and, to maintain a contest, the party contesting must give'the required iiotice within ten days nest after that time. Moreover, we think, Likens having, in the manner provided by statute, acquired the right to contest, that right was not forfeited or waived by the institution of the proceeding for the writ of mandamus. Whether the Ohio Circuit Court had power to require the canvassing board to reassemble and count the ballots contained in the sealed envelopes, as directed by the court, we need not now determine, because the previous finding was not changed or affected thereby. Nor, for the same reason, would it be indispensable for us to now determine whether the Ohio Circuit Court had jurisdiction to open said envelopes, and adjudge what ballots were fit to be counted, and how they should be counted, if counsel 'had not earnestly contended that judgment was final, and had concluded both parties as to the manner in which the ballots should be counted. While the Ohio Circuit Court had jurisdiction to hear an application for a writ of mandamus, if applied for in due time, and to command the canvassing board to open the sealed envelopes and canvass the ballots therein contained, we are clearly of the opinion it did not have jurisdiction, at that stage of the case, and in that character of proceeding, to determine and direct either what ballots contained in said envelopes should be counted, or how they should be counted. Consequently the judgment did not conclude either party; for the mode and time of judicial investigation as to the meaning, legality, and regularity of the ballots thus required to be sealed up and returned to the clerk of the County Court as the statute provides is by appeal to the contesting board, evidently intended to be invested with judicial functions, thence by appeal to the Circuit Court, thence to the Court of Appeals.

2. The next question is whether contestant (now appellee) had the right to file the amended notice that was not given until December 6, 1897, which both the contesting board and Circuit Court refused to hear. It seems to us, subsection 1, section 1535, is decisive of that question, being as follows: “The notice shall state the grounds of

the contest and none other shall afterwards be heard as coming from such party.” But it is contended the amended notice in question did not, nor was intended to, contain additional or other grounds of contest, but merely to make more specific the grounds already stated. Some of the grounds, as set out in the original notice, were that the ballots of various designated voters were, by officers of election at certain precincts, stamped without the previous oath of such elector of his inability to read the English language, required by section 1475 to be made. ' The amended notice contained the names of additional electors whose ballots were stamped under the circumstances mentioned. Ordinarily such an amendment would be allowable and just, but, looking- to the manifest policy and purpose of the statute, we are satisfied that the amended notice comes within the inhibition o^ subsection 1, section 1535. That policy is to require the proceeding for con testing the election of an officer, for public reasons, to be commenced as soon as practicable after the final action of the canvasing board, and terminated by judicial decision, without continuance or delay usually tolerated in litigation of other matters.

3. Of the whole number of ballots contained in the sealed envelopes referred to, the lower court, upon appeal from the contesting board, adjudged that fifteen be counted for Likens, and two for Anderson. But it appears from an inspection of those ballots that none of them were accompanied “with a true statement as to whether they had or had not been counted, and if counted what party and for whom,” as required by article 3, section 37. There was no statement at all In relation to any of them, except five or six; and the statement as to each of them was not only meager, but was signed alone by the clerk of the election, and not all of them signed by him officially. We think the statement should be full and complete, as required by the statute, and signed officially by all the officers of the election. Moreover, section 1476 seems to prohibit such statement being made upon the ballot itself, as was done by the clerks in the cases referred to. . Consequently the statement, in order to carry with it verity, must be made upon a separate paper, signed by all the officers of the election; and its relation to the particular ballot it refers to must be clearly shown by attaching them together, or in some other satisfactory manner, and sealed up and returned to the clerk of the County Court with the returns of the election. Questions as to the fitness of some of the ballots contained in the sealed envelopes to be counted, and for whom counted, were decided by the lower court, and have been argued by opposing counsel in this court. But as, for the reasons stated, none of them afford competent evidence of any fact, or can be considered for any purpose, we need not discuss or determine any question relating to the. efficacy or mean- . ing of any of them.

4. Another ground of contest is that at one of the precincts the clerk failed in several instances, as required by section 1471, to write his name on the back of the ballot .before handing it to the elector, and in other instances the name of the clerk was actually written by another offi•cer. As there is no evidence — even if, in absence of the .destroyed ballots, any could be heard on the subject— .showing that the non-performance or improper performance of that duty was prejudicial to either candidate, we do not think it would be proper to do the only thing that could be done in such case; that is, throw out the entire vote of that precinct.

. 5. Another ground of contest is that, at two or more precincts some of the officers of election were absent from the polling places while the election was being held. Section 1469 requires the polls to be opened at 7 o’clock in the forenoon, and kept open continuously up to, and closed at 4 o’clock in the afternoon of the same day; and not only was .the presence of all the officers contemplated, but it is the implied duty of each one to be present while the polls are open. But the evidence does not show for which one of the parties to this contest, during the absence of any one of the officers of election, votes were given, nor that any elector was hindered or prevented from voting by reason of the temporary absence of any one of the officers, or that such absence was not involuntary. The court therefore is. we think, not authorized for that reason alone to throw out the vote of an entire precinct, and thereby deprive the electors of their right of suffrage. Banishment, if inflicted at all, must be, not upon the voters, but upon the officers who have neglected or violated the duty imposed upon them by law. We do not, however, decide that such conduct of officers of an election might not be so flagrant or fraudulent as to wrong one or another of opposing candidates, and defeat a free and fair election.

6. There is evidence showing that at two of the precincts fifteen ballots were counted for Anderson, although the cross was stamped by the several voters, not in the square containing the Republican device, nor in the small square containing the name of Anderson, but alone in the square containing the name of James G-. Bailey,’ candidate for clerk of the Court of Appeals, and whose name was at the head of the Republican ticket; the name of Anderson being on the same ticket below. There were also six ballots counted for Likens, stamped alone in the square containing the name of Samuel J. Shackelford, candidate for clerk of the Court of Appeals, also at the head of the Democratic ticket. The lower court adjudged those ballots improperly counted, resulting- in a gain of nine votes for Likens. All those ballots were-destroyed by the officers of election, and consequently the manner in which they were stamped could be shown only by oral testimony, which it seems to be the policy of the law not to hear or consider in such case. It is true that this court has held, in the case of Major v. Barker, 18 Ky. Law Rep., 104 [35 S. W., 543], that it may be shown by secondary evidence that a ballot was stamped by officers of election without the previous oath of the elector required by statute, and, when the fact is thus established, the ballot, although counted, and destroyed, is to be treated as a nullity, and the vote deducted from the candidate receiving it.

In such case the act is expressly forbidden by statute, is always committed before the ballot is put in the box and counted, and could not be shown by the ballot, if present, but must be established, if at all, by oral testimony alone. But in what particular square of a ballot the cross has. been stamped by the elector is shown by the ballot itself, and as the statute requires ballots, after being counted, to be destroyed, it would seem to be the .legislative intention to exclude oral testimony as to how it had been stamped.

7. The evidence shows that seventeen ballots, stamped at the various precincts by officers of election without the electors being previously sworn, were counted for Anderson, and iourteen for Likens; making a net gain for the latter, according to proper finding of the lower court, of three votes.

8. It is made a ground of contest that at East Fords-ville precinct, where Anderson received a majority of fifty-five, the certificate of the officers required by statute to be made on the stub book was not signed by all the officers-of the election. Upon that ground the vote of that precinct was by the lower court thrown out. But as there were duplicate certificates duly and fully made out and signed by all the officers of the election, and which were competent evidence of correct returns of that precinct, the defect of the original certificate did not render the election held at East Fordsville void.

9. It is contended that the election held in Bartlett’s precinct, which gave Anderson a majority, was invalid, and the vote thereof should be rejected. The evidence shows Bartlet’s school house, the original place of voting, had become unfit for the purpose of holding an election, and the election of 1896 was held at Chapman’s dwelling house. But he forbade the election of 1897 being there held, and consequéntly it was held at the Gray house, about one- half mile therefrom, and about fifty yards from a public* highway. It satisfactorily appears that Gray’s was the nearest house to Chapman’s that could b,e procured; that written notices of the change were posted prior to the day of the election at Bartlet’s school house and at Chapman’s. It does not satisfactorily appear that any elector was misled or misinformed of the change, or failed to attend the election by reason of the change. The statute on the subject is as follows: “If for any good cause an election can not be held at the house appointed as the place of voting, the judges of the election may, on the.morning of the election, adjourn it to the most convenient place, after having publicly proclaimed the change, and posted notices of same on said house.” [Ky. Stat., section 1443.] In our opinion, the law being substantially complied with, the vote of an entire precinct should not be rejected by reason of a change of the voting place, when it appears, as it does in this case, that the place selected is the nearest that could be obtained to the former voting place, and when it does not appear either that the change was fraudulently made, or that any elector was thereby deprived of his privilege of voting.

It will be observed that, according to the evidence in this case that we'deem eonrpetent, there should be deducted only three votes from the majority found by the canvassing board in favor of Anderson. Wherefore the judgment of the lower court is reversed, and the cause remanded for proceedings consistent with this opinion.