Norton v. Letton

111 S.W.2d 1053, 271 Ky. 353, 1937 Ky. LEXIS 242

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: November 19, 1937
• Status: Published

Opinions

Opinion op the Court by

Judge Thomas

— Reversing.

Tiie judge of the Nicholas county court, pursuant to the provisions of section 2554c-2 et seq. of Baldwin’s 1936 Revision of Carroll’s Kentucky Statutes, called a local option election to be held throughout the county of Nicholas on May 8, 1937, which was done, and the measure carried by a large majority. Within the time provided by'law — and on May 31, 1937 — the three appellants and plaintiffs below filed this contest proceeding, pursuant to the provisions of section 2554c-13 of the same statutes, against the election commissioners of the county, and in their petition they attacked the validity of the election on numerous grounds. A demurrer filed by defendants to each of them was sustained, except as to the one charging failure of the sheriff to advertise the election as directed by statute. To that ruling defendants excepted. An answer and other pleadings completed the issues, and upon final submission the court dismissed the petition, complain ing of which plaintiffs prosecute this appeal. One of the grounds of contest, to which the court sustained a demurrer, was that in the city of Carlisle (one of the fifth class) there is an independent graded school, and that two board members for that school were elected by the people at an election duly held on Saturday, May 1, 1937, just seven days before the holding of the local option election, and that under the provisions of subsection (b) of section 2554c-4 of the Statutes supra, the local option election could not be held within thirty days — either before or following — the election of trustees or board members for the Carlisle independent .graded school.

Learned counsel for plaintiffs have abandoned in this court all other grounds of contest stated in the petition — except the. one just mentioned — as is evidenced by this beginning statement in their brief: “The sole question which the appellants desire to present on this appeal is whether or not the holding of a Local Option election in Nicholas County seven days after an election in the Graded School District of the City of Carlisle, a City of the Fifth Class, and the county seat of Nicholas county, for the purpose of electing the School Board of that City, was validly held or not, in view of section 2554c-4, Subsection (b), governing Local Option Election.” To the determination of that question this opinion will be exclusively devoted.

The relied on subsection (b) of section 2554c-4, supra, says: “The election [local option] shall not be held on the same day that, a primary or general election is held in the territory or any part thereof, nor within thirty days next preceding or following a regular political election.” (Our italics.) Without extended argument we will say that we interpret that provision as forbidding the holding of a local option election on the same day that a regular political election is held in the territory covered by the local option election, or any part of that territory, nor can it (local option election) be held in such territory within thirty days of any such regular political election or within any part of _it. With that interpretation settled we will proceed with the performance of the task that the sole submitted question imposes upon us — it being the ascertainment of what was meant by the Legislature in employing the phrase “a regular political election,” as embraced in the statute.

It is conceded by all parties that tbe word “election,” as employed in the statute, means only tbe appointed occasions at wbicb a choice is made by tbe legal voters witbin tbe territory covered by tbe election, and not to a choice made by a representative body, either legislative or administrative in character, and partaking of tbe nature of an appointment. Such elections .by tbe qualified voters, as is expressly stated in section 147 of our Constitution, “includes the decision of questions submitted to tbe voters, as well as tbe choice of officers by them.” Elections by tbe people are now divided into “Primary” elections and “General” elections — tbe first of wbicb is exclusively party affairs and confined to tbe naming of party candidates to be voted for at tbe next or succeeding general election for such officers. Tbe purpose to he accomplished by tbe bolding of a primary election goes no farther than that. Tbe very phrase “primary election” appears to have been adopted for convenience in order to distinguish it from a regular election at wbicb officers are chosen with governmental duties to perform. A more appropriate designation of tbe processes of choosing party candidates, perhaps, would have been “primary selection” instead of “primary election,” for such is its nature and purpose. However, tbe Legislature, ■ as we have seen, in providing for a local option election, prescribed that it should not be held on tbe same day for tbe holding of either such primary or general' election witbin tbe same territory, or witbin any part of that territory; nor witbin thirty days of the bolding of either a primary or general election, either in tbe entire territory or in only a part of it.

Elections participated in by tbe people are furthermore divided into “general” and “special” elections. The one (general election) is for tbe purpose of selecting “an officer after tbe expiration of tbe full term of tbe former officer,” while tbe other (special election) may be one to fill a vacancy on a day other than tbe prescribed regular election day and before tbe arrival of the time of tbe general election for a full term, or to vote upon a measure that may be submitted to tbe people under provisions of law — but upon no fixed day — and in wbicb cases tbe election is always required to be advertised and prescribed notices given for its bolding. See tbe definition given in 15 Cye. on page 279, wbicb is but a restatement of tbe definitions as made by all courts and text writers. The text in 9 it. C. L. 978, sec. 3, clearly points out the same distinction between a general and special election, saying in part: “Any election which is not regularly held for the election of officers or for some other purpose which shall come before the citizens at regular fixed intervals is a special election”; whilst general elections are those held upon fixed dates for the choosing of officers for regular periods of time and at which the voters may exercise their choice by casting their ballots,, On page 991 in section 13 of the same volume the text in dealing with the question as to when notice of an election is necessary says: “As to general elections it has been well established that the fixing of the time for the election either by law or by the Constitution is in itself notice which all electors must heed. * * * Where, however, the time for holding an election is not prescribed by law, but is fixed by the officer vested with authority to call it, the voter cannot be expected to have or to take notice thereof unless notice is given or a proclamation issued.” See, also, 20 C. J. 56, sec. 3. Further text citations are unnecessary and a reference to the annotated notes under the various applicable sections of our statutes and Constitution will demonstrate that we have approved in many opinions the interpretations and definitions contained in the texts cited.

In this case the election — upon the same day of which or within thirty days thereof a local option election is forbidden by the statute — was one for the election of officers, i. e., members of the independent graded school district board embraced by the city of Car-lisle, which is one of the fifth class. We have held in numerous cases that such positions (i. e., trustees of a school district or members of a school board) are not only officers, but are state officers. They administer and function in the administration of one of the most cherished governmental functions, to wit, the education of the youth of the land. Under the provisions of section 155 of our Constitution the election at which they are chosen, as well as elections appertaining to other school matters, are not embraced by sections 145 to and including section 154 of that instrument. On the contrary, that section (155) expressly provides that “said elections [school trustees and other school elections] shall be regulated by the general assembly, except as otherwise provided in this Constitution.” Consequent ly we held, in the case of Clark v. Board of Trustees of Dawson Springs Graded School District, 164 Ky. 210, 175 S. W. 359, and many others following as well, as preceding it, that a graded school election might be held on a day other than the regular November election day for the holding of all other regular elections by section 148 of the Constitution, which is the first Tuesday after the first Monday in November of the year in which the election is to be held. Therefore, under the Constitution the Legislature is at liberty to fix the time for the regular or “general” election of school trustees on a day other than the first Tuesday after the first Monday in November. By section 4399-27 of our Statutes, supra (it heing a part of chapter 65, article 5, of' the Acts of 1934), provision is made for the election of such school officers, and the day for its holding is on the regular November election day, but with this proviso : ‘ ‘ That any independent school district embracing' a city of the fifth class may, at the discretion of its. board of education, hold its election of board members at its public school building on the first Saturday in May.” Pursuant to that authority it appears in this-case that the board, prior to the election of members thereof on May 1, 1937, had adopted the first Saturday in May as the regular election day for the selection of' members to that board. After the school board in this-case had so designated the first Saturday in May for-the holding of the election, it became fixed until legally altered as the regular election day for that purpose, the-same as if it had been done by the Legislature in the statute, since the constitutional provision supra, with, reference to school elections, left it to the Legislature-to provide for them. In doing so in the 1934 statute-(section 4399-27) the Legislature made it optional with independent school boards whose school districts were-embraced by cities of the fifth class, to hold such regular elections, either on the constitutionally designated, regular election day for selection of other officers, or on (an alternatively fixed day) the first Saturday in. May after the expiration of the terms for which prior-members had been elected.

It is not contended that the Legislature was without authority under the Constitution to so provide, and. we have been unable to discover any such constitutional inhibition. The situation, therefore, we repeat, is the-same as if the Legislature had designated the first Sat urday in May for the holding of the school election here involved within the territory of the independent graded school district embraced by the city of Carlisle. If the Legislature had so provided, there certainly could be-no successful contention made that such an election, would not be a regular one for that purpose. But, for the reasons stated, we think that the option given by the Legislature does not militate against that conclusion. We will therefore determine the case upon the premise that the election of board members of the graded school district within the city of Carlisle in this case was a regular election day for that purpose, and no notice was necessary to be given of the holding of' that election, since the prior designation of the day by the board rendered it a fixed day for that purpose and to remain so until that order should be changed by the board. But whether or not there should be notice given of that change presents a question that is not now before us and, of course, will not be determined.

The fact that there are different statutory provisions made as to the places where, and the manner of conducting and certifying to the results of school elections, from those provided for the election of other governmental officers (as is advanced in the dissent, hereto), can have no material effect upon the question involved — which is, whether or not the particular school election involved is a “regular political” one? The differences pointed out as relating to such matters — with reference to the manner of holding (ballots or no ballots, emblems, etc.), the place of holding, and other regulatory matters, of the two classes of officers — are those made or permitted to be made by the Constitution in its sections 148 and 155. By the former the day of the election therein dealt with is fixed, but by the latter' (section 155) such fixing, and other provisions relating to elections generally, do not apply to the election of school officers, or to any kind of school elections. Provisions for the latter class of elections are expressly left to the legislature by that section (155), and when it (legislature) makes provisions pursuant to that, power they become regular and general ones as applicable to the class of elections dealt with, and the elections held thereunder are regular^ and general ones, as contradistinguished from “special” elections; or “political” party elections, if there be such within the jurisdiction for the choosing of party organization of fleers; but there are at present no statutory provisions therefor in this state.

The next question is — whether the school election referred to, though a regular one as we have determined, was a “political” election within the meaning of subsection (b) of section 2554c-4, supra? Mr. Webster gives three definitions of the word “political”: “1. Of or pertaining to polity, or politics, or the conduct of government, referring in the widest application to the judicial, executive, and legislative branches; of or pertaining to, or incidental to, the exercise of the functions vested in those charged with the conduct of government; relating to the management of affairs< of state; as, political theories. 2. Having, or conforming to, a polity, or settled system of administration; as, a political body or government. 3. Of or pertaining to the exercise of the rights and privileges or the influence by which the individuals of a state seek to determine or control its public policy; having to do with the organization or action of individuals, parties, or interests that seek to control the appointment or action of those who manage the affairs of a state; as, his political affiliations were with the Republicans.” That definition is in substance the same given by other lexicographers, both literary and legal. It will be seen that in neither definitions, 1 nor 2, is there the slightest reference made to the views, or governmental policies, advocated by groups of voters forming what is commonly designated as “political parties.” On the contrary the definitions so given are much broader, and in such broadened scope there is included, as well as emphasized, governmentally declared policies conforming to a settled system of administration of the government, or any of its subdivisional units. It embraces all participations (elections) whereby, whereat, and wherein legal voters may participate in the selection “of those who manage the affairs of a state,” or whereby the voters may exercise the function of participating^ in the choice of officers or measures that they may wish to be installed or inaugurated in the conduct and administration of their government.

Following such definitions the Supreme Court of the state of Wisconsin in the case of In re Kemp, _ 16 Wis. 359, 382, defined the word “political” as meaning that which pertains to the government of a nation and not to be narrowed so as to be exclusively applied to groups and parties advocating certain political views or policies. Tie Supreme Court of tie state of Arizona, in tie case of Sorenson v. Superior Court in and for Maricopa County, 31 Ariz. 421, 254 P. 230, 231, lad. before it tie same question now under consideration, i. e., tie nature and character of a sclool election, and. whether or not provisions of general election laws could be made applicable to it. In giving an affirmative-answer to tie latter question tie court leld tlat a~ sclool district was ordinarily a subdivision of a county, and tlat it (sclool district) was a “ ‘political’ subdivision.” It tlen proceeds to define tie word “political” as applicable to sclool districts, and in doing so-said: “ ‘Political’ las been defined by Webster as ‘relating to tie management of affairs of state; of or pertaining to or incidental to tie exercise of functions-vested in those charged witl tie conduct of government.’ ” It tlen refers to tie case of Freel v. School City of Crawfordsville, 142 Ind. 27, 41 N. E. 312, 37 L. R. A. 301, in wlicl tlat court leld tlat “such subdivisions [sclool districts] tlen, as counties, townships, and sclool corporations, are instrumentalities of government, and exercise authority given by tie state.”' Tie Arizona court tlen continues by saying: “Indeed, we think tlat tie education of tie children of tie state-is one of tie highest, if. not tie highest, political function wlicl it las.” (Our italics.) The court tlen cites-tie case of Landis et ux. v. Ashworth, 57 N. J. L. 509, 31 A. 1017, and inserts from tie opinion in tlat case this language: “Sclool districts are formed for tie purpose of aiding in tie exercise of tlat governmental function wlicl relates to tie education of children, and to tlat end tie legal voters of each district are intrusted witl specified powers of local government, and tie trustees whom they elect are made a body corporate to represent tie district and its inhabitants. These characteristics mark them as political organizations.” (Our italics.)

Tie case of Lydecker v. Commissioners, 41 N. J. L. 154, is also cited to tie same effect and an approving-excerpt is also taken from tlat opinion. In tie case of McKinney v. Barker, 180 Ky. 526, 203 S. W. 303, L. R. A. 1918E, 581, we dealt extensively witl tie term “election” as used in our Constitution and statutes, and distinctly pointed out tlat tie process of choosing officers for tie administration of government by tie people — - which is called an election — is the exercise of a governmental right pursuant to a political policy adopted by the particular government.

We have also held in the cases of Ridings v. Jones, 213 Ky. 810, 281 S. W. 999, Horn v. Wells, 253 Ky. 494, 69 S. W. (2d) 1011, and others that the provisions of our Corrupt Practices Act (Ky. Stats., sec. 1565b-l et seq.) relating to candidates for election to school offices -applied to them, although they are not required to be nominated at a primary election. In so holding we necessarily concluded that the object and purposes sought to be accomplished by the Corrupt Practices Act were as essential and necessary in the election of school officers as it was in the election of any other governmental officers. That object and purpose was to render such elections as free from contaminating influences, whereby the unfettered choice -of the people might be defeated, as possible. The same purpose, we are confident, was entertained by our legislature when it made provisions supra for local option elections, and wherein it forbade their holding on the same day or within thirty days before or after the elections therein designated. That purpose was that the elections so designated — held near to or upon the same day of the local option election — should not be unduly influenced by the pending or approaching local option election, or vice versa. That apprehension was based upon the well-known fact that political trading and swapping of votes might be indulged in by advocates or opposers of the pending measures, or candidates for election, and a result obtained by and through such polluting influences and practices that would be an unfair expression of the people had they not been so influenced.

Of all the elections in the entire catalogue of them that should be kept free from any such possible contamination, it is a school election wherein officers are chosen to administer the gracious provisions of our public school system to the end that the rising generation and all future ones might become educated. To deny the contention made by appellants and to uphold the argument made by appellees would permit the holding of a local option election on the same day that a school election is held under the same provisions that the one herein involved was held, since there is the same mandate contained in the statute against holding elections on succeeding and preceding days (within the thirty day limit )as there is against holding the elections on the same day. If they were held on the same day, it requires no astute prognosticator to prophesy what would take place on the election day of the corrupting nature hereinbefore described.

We are not called upon to determine whether or not such prejudicial and diverting influence operated upon the involved school election in this case, since the legislature settled that question so far as our authority extends by the provisions it enacted in the local option statute, supra, and under a well-established rule we are-not authorized to modify or curtail those provisions. We have therefore concluded that there is no alternative course open to us than to hold that the school election in this case of members of the educational board of the independent graded school embraced by the fifth class city of Carlisle, Ky., was and is a “regular political election’5, within the meaning and contemplation of the local option , statute, and that the instant local option, election having been held seven days after the school election, covering a part of the territory of the entire county of Nicholas, was held on a forbidden date. Our duty requires us to follow that only alternative.

Wherefore, for the reasons stated the judgment is reversed, with - directions to set it aside, and for proceedings consistent with this opinion.

The whole court sitting.