Patterson v. Knapp

101 S.W. 379, 125 Ky. 474, 1907 Ky. LEXIS 295

• Court: Court of Appeals of Kentucky
• Decided: April 26, 1907
• Status: Published

Opinion

Opinion of the Court by

Chief Justice O’Rear

Affirming.

An election as to whether a tax should he imposed in aid of a graded school was held in the city of Franklin in May, 1906. The result of the election, as canvassed and certified by the proper officials, showed a majority in favor of the tax. Subsequently certain citizens and taxpayers, the appellants herein, instituted this action in the Simpson circuit court against the officers of the election, the superintendent of common schools of the county, and the sheriff, calling in question the correctness of the certificate. The plaintiffs were styled contestants and. plaintiffs, and the defendants were styled contestees and defendants. This uncertainty on the part of the pleader grows out of the fact that there is no provision in our statutes for contesting the result of such an election Nevertheless, because there is a sound reason why there should be such a provision in the statutes, appellants evidently proceeded upon the theory that the provision of the statute for the contesting of elections of officers ought by implication to include contesting an election imposing a tax. The election was contested upon the ground that the officers refused to permit certain qualified voters to vote who offered to vote, and v¡ho, had they been permitted to vote, would have voted against the tax, and, further, that the officers permitted certain other persons to vote who, it is alleged, were not qualified voters of the town, and who voted in favor of the tax. The alleged irregularities were sufficient to have changed the result of the election, had they been corrected. A special demurrer was sustained in the circuit court, upon the ground that the court had not jurisdiction of the subject-matter of the suit. Prom the judgment sustaining that demurrer, and dismissing the petition in consequence, this appeal has been prosecuted.

On a former day a motion to dismiss the appeal was sustained, but that order was entered through an inadvertence, and is now set aside. Inasmuch as the case has been briefed upon the question of jurisdiction of the circuit court, and as that, in our opinion, is the controlling question on this appeal, we will dispose of the case now. Courts of equity have not inherently, and had not at common law, the jurisdiction to try contested election cases. Nor have any other courts, for that matter. Such jurisdiction exists only when it is conferred by statute. However desirable it may be that some tribunal should be provided in which a contest might be instituted and tried, be the matter involved either the selection of public officials or the imposition of a tax upon the people by vote of the electors, that is a question that addresses itself tó the discretion of the. Legislature. Trustees Common School District v. Garvey, 80 Ky. 159; Clark v. Rogers, 4 Ky. Law Rep. 932; City of Louisville v. Park Commissioners, 65 S. W. 860, 24 Ky. Law Rep. 41; McCrary on Elections, section 317, 15 Cyc. p. 297.

The judgment of the circuit court, dismissing the petition, is affirmed.