Opinion of the Court by
Stanley, Commissioner—
Affirming.
This is a contest over the Bepnblican nomination for representative in the Twenty-Fourth legislative district composed of Butler and Edmonson counties, the primary election having been held August 3, 1931. On the face of the returns, the votes received were as follows: Y. T. Willis, 1,059; Clint Baymer, 1,045. There were two other candidates who received a few votes and who are. not parties to the proceeding. The appellant, Baymer, instituted this contest against the appellee,, Willis, and it was adjudged by the circuit court, after making deductions from both parties, that Willis had been elected by a plurality of 36 votes instead of 14 as disclosed by the returns. The grounds of contest are of three classes or groups, to-wit: (1) The ballots of three precincts should not be counted because the officers of the election did not return them to the county court clerk until Monday morning following the election instead of taking them immediately after the close of the polls on Saturday; (2) certain precincts in Edmonson county should be thrown out because created or established by an order of the county court which was not in accordance with the statute; and (3) numerous illegal individual votes.
The new election law enacted by the General Assembly at its 1930 session (chapter 49), in respect to the preservation and canvassing of the ballots, is an innovation and materially differs from the procedure under which we have heretofore operated in this state, and, so far as we are advised, from that of any other-state. It is now section 1468 et seq., of the Statutes. Its constitutionally, except as to one provision, was sustained in the opinion of State Board of Election Commissioners v. Coleman, 235 Ky. 24, 29 S. W. (2d) 619.
In the Lee precinct of Butler county, at the close of the polls, the ballot box and envelope containing the unused ballots, stubs, etc., were taken to the home of the Bepublican judge of the election. He also held the key to the lock fastening the aperture in the box through
which, the ballots had been deposited. Under the law, the keys to the locks fastening the lid of the box were held by the election commissioners. The box and envelope remained in the hall of. his residence, which was not locked, until the following Monday morning, when it was taken by the Republican judge and the Democratic sheriff, accompanied by other officers of the election, r^nd delivered to the county court clerk before the commencement of the count by the election commissioners. 'While there is some evidence tending to show that the election officer retaining custody of this box was friendly disposed toward the contestee, who received a majority of the votes in that precinct, and also some testimony tending to impeach his integrity in relation to political elections, though otherwise it is admitted to be unquestioned, he testified that he voted for one of the other candidates, and his reputation for political integrity was sustained by a preponderance of the evidence relating to that subject. He testified positively and convincingly that no one had touched the box after it was deposited in his home until it was removed by the sheriff of the election and himself on Monday morning. The reason assigned for not taking the ballot box in Saturday afternoon, as required by the law, is ignorance of its demand or uncertainty as to what the law required. Under the former statute, when the precinct election officers counted the ballots, they were given two days in which to deliver the box and returns to the county clerk; and these officers had received conflicting advice as to their duty. The election commissioners and the county court clerk assisting them testified that, because of this delay in the delivery of the box, they had taken special care to examine it and the contents, and that there appeared no evidence whatever of any tampering. The number of ballots cast corresponded with the number of stubs, and, although the unused ballots were not so stamped, as required by law, the stubs were so marked, and for each stub there was an unused ballot attached. The printer who had furnished the ballots for the election in that county testified that he had printed no more than those delivered to the county clerk for use. And there is no evidence that there were any extra ballots available.
In the Stockholm precinct of Edmonson county, the officers, after the close of the polls, took the box to the home of George Kerr, living near by, as a matter of con
venience, and the box was taken to the county clerk on the following Monday morning. This seems to have been the practicó under the old law, and the action of these officers was apparently due to ignorance of the terms of the present statute. It is not shown who had the key to the lid of the aperture. The evidence is that this box was protected from invasion and had not been tampered with. The election officers testified that everything tallied and was regular so far as they could tell.
In the Cade precinct of Edmonson county, after starting on the way to the county seat, one of the officers declined to go because he would have to ride horseback in the night. Thereupon the Republican sheriff took the box to his home, and the Democratic judge took the envelope containing the unused ballots and the key to the lid of the aperture. This box was placed in a room and the doors and windows securely fastened. Leaving home on Sunday morning, the officer took the box with him and kept it securely. He was joined that evening by the Democratic judge, and they stayed together until Monday morning, when they both took the box in to the county clerk. The integrity of this box was established.
The statute (section 1482) explicitly states the duties of election officers to be performed after the time for closing the polls shall have arrived, and then gives this emphatic order: ‘ ‘ The officers of election shall immediately deliver the ballot box and the envelope containing the unused ballots to the county clerk. The judge and sheriff of election, of opposite political faith, shall forthwith convey said ballot box and envelope to the county clerk’s office, taking his receipt therefor. Said officers shall see that no person other than themselves has access to, or custody of, said ballot box, and they shall each remain in the presence of the other, until said box and envelope is delivered to the county .clerk. ”
It is provided that the ballot box shall remain locked from the time it leaves the county clerk’s office until unlocked by the election commissioners for the purpose of counting the ballots, which is on Monday following a primary election held on Saturday, and on Wednesday following a general election on Tuesday. After delivery of the boxes and envelopes containing unused ballots, etc., to the clerk, he is required to keep them in a secure and substantial place and maintain a sufficient guard over them until the count is completed.
The statute contemplates that the election officers shall proceed with diligence to deliver the box and paraphernalia to the county court clerk, and the discharge of that duty is imperative.
In United States v. Baldridge (C. C.) 11 F.
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Opinion of the Court by
Stanley, Commissioner—
Affirming.
This is a contest over the Bepnblican nomination for representative in the Twenty-Fourth legislative district composed of Butler and Edmonson counties, the primary election having been held August 3, 1931. On the face of the returns, the votes received were as follows: Y. T. Willis, 1,059; Clint Baymer, 1,045. There were two other candidates who received a few votes and who are. not parties to the proceeding. The appellant, Baymer, instituted this contest against the appellee,, Willis, and it was adjudged by the circuit court, after making deductions from both parties, that Willis had been elected by a plurality of 36 votes instead of 14 as disclosed by the returns. The grounds of contest are of three classes or groups, to-wit: (1) The ballots of three precincts should not be counted because the officers of the election did not return them to the county court clerk until Monday morning following the election instead of taking them immediately after the close of the polls on Saturday; (2) certain precincts in Edmonson county should be thrown out because created or established by an order of the county court which was not in accordance with the statute; and (3) numerous illegal individual votes.
The new election law enacted by the General Assembly at its 1930 session (chapter 49), in respect to the preservation and canvassing of the ballots, is an innovation and materially differs from the procedure under which we have heretofore operated in this state, and, so far as we are advised, from that of any other-state. It is now section 1468 et seq., of the Statutes. Its constitutionally, except as to one provision, was sustained in the opinion of State Board of Election Commissioners v. Coleman, 235 Ky. 24, 29 S. W. (2d) 619.
In the Lee precinct of Butler county, at the close of the polls, the ballot box and envelope containing the unused ballots, stubs, etc., were taken to the home of the Bepublican judge of the election. He also held the key to the lock fastening the aperture in the box through
which, the ballots had been deposited. Under the law, the keys to the locks fastening the lid of the box were held by the election commissioners. The box and envelope remained in the hall of. his residence, which was not locked, until the following Monday morning, when it was taken by the Republican judge and the Democratic sheriff, accompanied by other officers of the election, r^nd delivered to the county court clerk before the commencement of the count by the election commissioners. 'While there is some evidence tending to show that the election officer retaining custody of this box was friendly disposed toward the contestee, who received a majority of the votes in that precinct, and also some testimony tending to impeach his integrity in relation to political elections, though otherwise it is admitted to be unquestioned, he testified that he voted for one of the other candidates, and his reputation for political integrity was sustained by a preponderance of the evidence relating to that subject. He testified positively and convincingly that no one had touched the box after it was deposited in his home until it was removed by the sheriff of the election and himself on Monday morning. The reason assigned for not taking the ballot box in Saturday afternoon, as required by the law, is ignorance of its demand or uncertainty as to what the law required. Under the former statute, when the precinct election officers counted the ballots, they were given two days in which to deliver the box and returns to the county clerk; and these officers had received conflicting advice as to their duty. The election commissioners and the county court clerk assisting them testified that, because of this delay in the delivery of the box, they had taken special care to examine it and the contents, and that there appeared no evidence whatever of any tampering. The number of ballots cast corresponded with the number of stubs, and, although the unused ballots were not so stamped, as required by law, the stubs were so marked, and for each stub there was an unused ballot attached. The printer who had furnished the ballots for the election in that county testified that he had printed no more than those delivered to the county clerk for use. And there is no evidence that there were any extra ballots available.
In the Stockholm precinct of Edmonson county, the officers, after the close of the polls, took the box to the home of George Kerr, living near by, as a matter of con
venience, and the box was taken to the county clerk on the following Monday morning. This seems to have been the practicó under the old law, and the action of these officers was apparently due to ignorance of the terms of the present statute. It is not shown who had the key to the lid of the aperture. The evidence is that this box was protected from invasion and had not been tampered with. The election officers testified that everything tallied and was regular so far as they could tell.
In the Cade precinct of Edmonson county, after starting on the way to the county seat, one of the officers declined to go because he would have to ride horseback in the night. Thereupon the Republican sheriff took the box to his home, and the Democratic judge took the envelope containing the unused ballots and the key to the lid of the aperture. This box was placed in a room and the doors and windows securely fastened. Leaving home on Sunday morning, the officer took the box with him and kept it securely. He was joined that evening by the Democratic judge, and they stayed together until Monday morning, when they both took the box in to the county clerk. The integrity of this box was established.
The statute (section 1482) explicitly states the duties of election officers to be performed after the time for closing the polls shall have arrived, and then gives this emphatic order: ‘ ‘ The officers of election shall immediately deliver the ballot box and the envelope containing the unused ballots to the county clerk. The judge and sheriff of election, of opposite political faith, shall forthwith convey said ballot box and envelope to the county clerk’s office, taking his receipt therefor. Said officers shall see that no person other than themselves has access to, or custody of, said ballot box, and they shall each remain in the presence of the other, until said box and envelope is delivered to the county .clerk. ”
It is provided that the ballot box shall remain locked from the time it leaves the county clerk’s office until unlocked by the election commissioners for the purpose of counting the ballots, which is on Monday following a primary election held on Saturday, and on Wednesday following a general election on Tuesday. After delivery of the boxes and envelopes containing unused ballots, etc., to the clerk, he is required to keep them in a secure and substantial place and maintain a sufficient guard over them until the count is completed.
The statute contemplates that the election officers shall proceed with diligence to deliver the box and paraphernalia to the county court clerk, and the discharge of that duty is imperative.
In United States v. Baldridge (C. C.) 11 F. 552, 557, a provision in an Alabama statute that it is the duty of election officers “immediately upon the closing of the polls” to count the votes, it was held to demand a reasonable construction, and clearly means that there should be no unnecessary delay and that no other business shall intervene to occupy and distract the attention of officials until the matter in hand shall be consummated. Delays, it was observed, would offer opportunity for evil-disposed persons to tamper with the boxes and change or rifle it of its contents. Such meaning must be given the word in this act.
•Construing the words “immediately” and “forthwith” as meaning without unnecessary delay, _ or as quickly as practicable, or within a reasonable time, or with due diligence under the circumstances of the particular case, the direction must be rigidly observed; otherwise the system, designed as it is to circumvent ingenious plans and to remedy well-known evils by preventing fraud in the count and the returns, will break down. The difficulty is to construe and apply this provision so as to effectuate its purpose and at the same time not to disfranchise voters by reason of its violation.
Where election officers fail to do their duty, in this or any other respect, or shall willfully perform it in such a way as to hinder the objects of the law, they may be punished by fine and imprisonment. But it is a general rule of election law that, if the statutes do not expressly declare that noncompliance with a specified procedure shall result in throwing out the precinct or other district, a noncompliance that does not affect .the fairness and equality of the election or the ascertainment of the true result will not vitiate the election. 9 R. C. L. 1091, 1092; Marilla v. Ratterman, 209 Ky. 409, 273 S. W. 69; Muncy v. Duff, 194 Ky. 303, 239 S. W. 49; Craig v. Spitzer, 140 Ky. 465, 131 S. W. 264, and cases cited. Cf. Stewart v. Wurtz, 143 Ky. 50, 135 S. W. 434. To hold otherwise would be to subordinate the substance to the form, the end to the means. It is a transcendent rule that the right of suffrage will not be destroyed by irregularities or derelictions on the part of officers charged
with, the duty of conducting the election fairly and honestly, unless their misbehavior was such as to render impossible of judicial determination the will of the people as expressed at the polls.
It is said that, in the absence of suspicious circumstances, a mere irregularity in forwarding returns by election officers will not warrant their rejection. 20 C. J. 196. The converse, of course, is true; and, a fortiori, where a positive direction to deliver the ballots themselves into the hands of the officer charged with their safe-keeping until counted has been disregarded and there has been an unreasonable delay in delivering the ballots, there should be clear and convincing evidence that they have been preserved in the same condition they were in at the close of the polls.
It is the opinion of the court that under this law a disobedience of the statutory mandate by failing to deliver the boxes immediately, as required by the statute, impugns the integrity of the ballots, and they should not be counted unless it is shown by clear and convincing evidence that the ballot box and ballots have not been tampered with and that their integrity has been preserved.
Of course, it may be disclosed that the delay in the delivery of the boxes was a scheme to defraud, or to create confusion, or to destroy the efficacy of the ballots, or to falsify the contents by persons who are interested in having the precinct thrown out or the ballots rejected. That would be an act with the criminal intent to affect the election or result thereof rather than merely failing to perform a duty. When such corrupt action has been disclosed, a different consideration should be given than that outlined. But we have no such situation before us in this case.
We would emphasize the fact that in this opinion it is not intended to announce a rule that would be applicable universally in violations of the statute in the particular respect here involved. Our opinion is confined to the particular facts of this case where the testimony convincingly shows that no fraud was either committed or attempted, nor was any intended. Not only was it so proven by the election officer (which character of testimony is not conclusive on the uoint), but it is also established by further facts as herein stated. Each case should necessarily be governed by its own facts. If
there should be such a number of departures from the requirements of the statute relating to the forthwith delivery of the ballot box to the county court clerk by the designated officers of the election as to indicate a scheme and purpose to violate the statute in that respect so as to furnish opportunities for fraud, and from which an inference could well be made that it was both intended and perpetrated, then a different rule applies, which might possibly require the throwing out of the entire vote cast at such precinct.
The purpose of the statute was to insure fairness and honesty in elections, and the same should be the motive of each and every officer having duties to perform in the conduct of elections; and, when the testimony is of such a nature as to indicate a determination to thwart that purpose, it would be the duty of courts to condemn it by applying the most rigid rule within their authority. Therefore we repeat that our conclusion on this point in this case is based entirely on its facts, and it would not be applicable under a different state of facts exhibiting a different intent and purpose on the part of those who violated the law, or their associates.
It might also be appropriate to state that, should either or both of the election officers, whose duty it is to immediately transmit the ballot box and uncounted ballots to the county court clerk, not be able to do so, then that duty should be performed by the other officers of the election who are not so prevented: provided, however, that the two should be divided in political faith as the statute directs.
We are of the .opinion that the integrity of the ballots in the three instances presented here was established, and that the trial court properly considered the returns in the three precincts. We have accordingly done likewise.
Both parties attack as illegal a number of individual votes. We shall, under a well-known rule, confine ourselves to a consideration of only those mentioned in briefs, deeming issues as to others to . have been satisfactorily adjudged.
The primary election law prescribes the same qualification of the voter as is demanded for a general election, and in addition that he shall be “a member of the party for whose nominees he intends to cast his vote, and shall have affiliated with said party and supported
its nominees and no person shall be deemed to have been affiliated with the party in whose primary he seeks to cast his vote, if he voted against the nominee or nominees of such party in the last general election.” Section 1550-19, Statutes.
We shall consider, first, the votes which the contestant, Raymer, insists should be deducted from the contestee, Willis. It is conceded by the contestee that for different reasons he should be charged with seven votes cast by the following: Alfred Brown, C. M. French, Eva Kuykendall, D. A. Embry, Harrison C. Embry, Charles Segó, and J. M. Johnson. It is also conceded that 35 votes cast for the contestee should be deducted from his total on the ground that, at the preceding general election, they had voted for their neighbor, Hon. M. M. Logan, the Democratic candidate for United States Senator and against the Republican nominee for that office. Under the evidence presented as to the votes of Sylvester Kuykendall and Mrs. Truly Jones, we are of the opinion that they should also be deducted from the contestee’s vote. We have therefore been constrained to reduce the vote of the contestee, Willis, from 1,059 to 1,015.
Looking at the counter contest, we find that the contestant, Raymer, concedes 37 votes should be charged to him upon various grounds of illegality.
The evidence as to the qualifications of the following 11 shows that they were not entitled to vote in the primary, and, having voted for the contestant, are chargeable to him: Clifton Keown, Jack Flener, Jasper Woolev, Mrs. Jasper Wooley, L. C. Dossev, Ray Raymer, Richard Walker, John Keown, Willie Embry, Earl Willis, Clara Willis, and Bennie Lindsay.
Ray Wells failed to detach the secondary stub which bore his name before placing his ballot in the box. This resulted in exposing how he had voted, that is, for the contestant, while it was being counted by the election commissioners. Although the new election law provides that failure of the voter to detach the secondary stub shall not invalidate his ballot, it was held in State Board of Election Commissioners v. Coleman, supra, that that portion of the law was unconstitutional as invading the secrecy of the ballot, and this vote should not have been and is not to be counted for the contestant.
The vote of Mrs. Leonard Webb was challenged, by the contestant as having been illegally cast for the con
testee, but on the trial she testified that she had voted for the contestant, and, under the rule of Drennan v. Roberts, 234 Ky. 574, 28 S. W. (2d) 735, this vote must be deducted from the contestant’s total.
It is conceded that Otha Cook voted illegally. The evidence as to how he voted was sufficient, in our opinion, to say that it was for the contestant, and this vote is therefore charged to him.
'Bringing together these deductible votes (52) reduces the vote of the contestant, Raymer, from 1,045 to 993.
It appears therefore that the corrected returns are: Willis, 1,015, and Raymer, 903- — giving the former a majority of 22 votes.
Other votes were challenged by each party which need not be specifically mentioned. The evidence as to the affiliation with the Republican Party of some whose right was questioned upon that ground was not sufficient, in our opinion, to warrant their deduction.
There were a few votes challenged in the petition and the counter contest upon a stated ground of illegality, e. g., because of residence in the precinct an insufficient length of time, but the evidence did not sustain that allegation, although it did show that the vote was illegally cast, e. g., that it was voted openly without conforming to the statutes. Under the general rule of practice that there must be both allegation and proof to sustain a judgment, we are of the opinion that such votes cannot be deducted from the party for whom they were cast.
In the general election preceding this primary, the Democratic candidate for Representative in Congress had no Republican opposition. A few persons who voted in this primary had cast their complimentary vote for him. Counsel express doubt as to their right to participate in the Republican primary. We are of the opinion that such a complimentary vote does not manifest an intention to change one’s allegiance to his party. It is not a vote against its nominee, which is the important criterion set up by the statute. Hence they had the right to vote in the primary, and such votes should not be thrown out.
In Edmonson county the county court undertook to create five new voting precincts after its June term next preceding this, primary election. It is provided by
section 1444 of the Statutes that the county court may do this provided that no such change or division shall he made after the June term of court next preceding an election, and, further, that such change or division shall not be valid without giving due notice at least one month before any election by one newspaper publication or by posters. The publication was not thirty days before this election. The circuit court threw out these new precincts, which resulted in a net loss of 8 votes for the contestant. Because of conditions peculiar to the Straw precinct, the contestant argues that the new Dickey’s Mill precinct, which was created by division of the Straw precinct, should not be thrown out, and, under that construction of the effect of the change in precincts, the result would be a net loss of 21 votes for Willis instead of the result reached by the circuit court. As to whether or not it is proper to throw out any of these precincts under the facts need not be determined, for, if it be conceded that appellant’s claims should be sustained, it would not affect the ultimate result, as his opponent would still have one vote more than he.
We have also considered the claim that evidence taken after September 14th should be excluded from consideration because depositions were not taken in the time provided by law. It appears that by a timely order the circuit court granted the extension of time which permitted the taking of all depositions in the case.
From a careful consideration of the entire record, it seems to the court that the judgment should be, and it is, affirmed.
Whole court sitting.