Steele v. Meade

33 S.W. 944, 98 Ky. 614, 1896 Ky. LEXIS 10

Opinion

JUDGE HAZELRIGG

delivered tiie opinion of the court.

The appellee was duly elected to the office of clerk of the circuit court of Boyd county a,t the November election, 1892. He obtained his certificate to that effect from the county canvassing board, and afterwards took tlie oatbs and executed the bond required of such clerks in the manner prescribed by law. His opponent at that election was the appellant, who was then the incumbent of the office, but whose term expired in January, 1893.

It appears that appellant, claiming to have received che highest number of votes, had sought by mandamus, to compel the canvassing board to. re-canyass the vote and issue the certificate of election to him, and when in January the office was demanded of him he refused to vacate, and this, suit was then brought by the appellee for the office. Judgment resulted for the appellee.

If the canvassing board improperly performed its duty, then the writ of mandamus was the proper remedy; but if it did so properly, according to the returns before it, the remedy of the appellant was by inaugurating a contest before the proper board, as provided by statute in such cases. That the canvassing board fully performed its duty has been determined by this court in Houston v. Steele (ante 596). And that the exclusive remedy provided in such cases for invalidating or’impeaching the certificate, of the canvassers was, by a contest before the proper board is settled in Stine v. Berry, 96 Ky., 63.

The only issues in the case were issues of law, and the court properly determined them without the intervention of a jury.

Judgment affirmed.