Bach v. Spencer

• Decision Date: 28 May 1902
• Citation: 68 S.W. 442
• Parties: BACH v. SPENCER et al. [1]
• Court: Kentucky Court of Appeals

68 S.W. 442

BACH v. SPENCER et al. ^[1]

Court of Appeals of Kentucky.

May 28, 1902

Appeal from circuit court, Breathitt county.

"Not to be officially reported."

Action by W. D. Bach against William Spencer and others for a mandamus. Judgment for defendants, and plaintiff appeals Affirmed.

J. B Marcum, for appellant.

J. J C. Bach, Kelley Kast, and Pollard & Redwine, for appellees.

DU RELLE, J.

The appellant, Bach, brought suit against Spencer and the members of the board of county canvassers of Breathitt county for a writ of mandamus to require the board to recanvass the returns, and issue the certificate of election as jailer of the county to him, and to cancel the certificate issued to Spencer. The ground upon which the mandamus is asked is that at the November election, 1901, at which he and Spencer were candidates for the office of jailer of Breathitt county, he received a majority of two votes for that office, but that the returns from Jackson precinct No. 2 were fraudulently altered and forged, after being certified by the officers of the election, so as to reduce the number of votes shown to have been cast for him at that precinct from 99 to 97, and thereby made the vote in the county a tie; but that the board did not determine by lot, as required by the statute, to whom the certificate should be issued, but counted for Spencer 8 ballots which purported to have been returned as questioned or rejected, upon which ballots the officers of the election did not make or sign any indorsement showing whether or not they had been counted, or, if so, for whom nor were they accompanied by any written statement showing whether or not they were counted by the officers of election and, if so, for whom; nor was any such written statement made or signed by any of the election officers. The petition was accompanied by two duplicate certificates of election, showing that appellant received 99 votes in Jackson precinct No. 2, and by affidavits of some of the officers indicating that the return from that precinct in the stub book had been forged after it was signed by the officers. A demurrer to the petition was sustained. The appellant declined to plead further, and his petition was dismissed.

It will be observed that the mandamus is asked upon the ground that the certificate of the returns from one of the precincts had been so altered as to make it a forgery before the votes therein certified were...