Ball v. Cawood

• Decision Date: 21 October 1938
• Parties: Ball et al. v. Cawood.
• Court: United States State Supreme Court — District of Kentucky

275 Ky. 108

Ball et al. v. Cawood.

Court of Appeals of Kentucky.

Decided October 21, 1938.

1. Elections. — The statute providing that candidates for unexpired terms to be filled at November election shall be nominated at

preceding primary election, provided vacancy occurs not less than 70 days before primary election, but if such vacancy occurs less than 70 days before such primary election, nomination shall be made in such manner as may be determined by governing authorities of political parties, was not repealed by implication by subsequently enacted statute prescribing that no governing authority of any political party shall have power to nominate any candidate for elective office other than by primary elections (Ky. Stats., secs. 1550-1c to 1550-1h, 1550-4; Constitution, sec. 152).

2. Elections. — Where vacancy was created in the office of sheriff less than 70 days before the regular August primary election, the one thereafter nominated by the Republican executive committee as candidate for sheriff was the duly and legally nominated candidate of the Republican Party for the office of sheriff (Ky. Stats., sec. 1550-4).

3. Elections. — A supersedeas bond had the effect of suspending judgment in election contest declaring election void, so that the judgment did not become final and no vacancy in fact existed in the office until the matter had been finally determined on appeal.

Appeal from Harlan Circuit Court.

E.H. JOHNSON, J.C. BAKER and GOLDEN & LAY for appellants.

FORESTER & CARTER, C.B. SPICER, S.H. BROWN and J.R. CARPENTER for appellee.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Affirming.

Herbert C. Cawood, as the nominee of the Republican Party, and Clinton C. Ball, as the nominee of the Democratic Party, were rival candidates for sheriff of Harlan county at the regular election held in November, 1937. On canvass of the returns by the election commissioners it was found that Cawood had received a majority of the votes cast and a certificate of election was awarded him. Election contest proceedings instituted by Ball against Cawood resulted in a judgment in the Harlan circuit court holding and declaring the election to be void. On appeal prosecuted by Cawood the judgment of the Harlan circuit court was affirmed by an opinion rendered on June 24, 1938, and mandate which issued immediately was filed in the lower court on June 25, 1938. It will therefore be seen that a vacancy was created in the office of sheriff of Harlan county by reason of the judgment which became final more than 3 months before the general election in November 1938, and less than 70 days before the regular August primary election of that year; and under the provisions of our constitution, section 152, it was necessary that the vacancy be filled by appointment until the general election in November, 1938, at which time the office shall be filled by election for the remainder of the term.

On July 5, 1938, the Republican executive committee of Harlan county adopted a resolution providing that the nomination of candidates for the vacancy should be made by such committee and proceeded to nominate Cawood as the candidate of that party for the office of sheriff and in conformity with the law a certificate was issued to him. On July 7, 1938, Leslie Ball filed his notification and declaration made out as provided by the primary election laws with Mrs. Elmon Middleton, county court clerk of Harlan county, for the purpose of having his name printed on the ballots at the ensuing August primary election as a candidate for the Republican nomination for the office of sheriff.

Thereafter Cawood instituted this action against Leslie Ball and Mrs. Elmon Middleton, county court clerk of Harlan County, setting up the foregoing and other facts unnecessary to enumerate and prayed that Mrs. Middleton, as county court clerk, be enjoined and restrained from issuing a certificate of nomination to Leslie Ball, as Republican nominee for the office of sheriff to be voted for at the November election 1938 or from filing or causing to be filed a certificate of nomination of the defendant Ball and that Leslie Ball be enjoined from receiving such certificate of nomination or from presenting such certificate of nomination or offering to file same for the purpose of having his name placed on the ballot.

Without entering into detail the issue made by pleading is whether Cawood is the duly and legally nominated candidate of the Republican Party for the office of sheriff under section 1550-4, Kentucky Statutes, or whether that section has been repealed by act of 1936 relating to the nomination of candidates by political parties (Kentucky Statutes, 1550-1c to 1550-1h, inclusive), and whether Ball, being the only person to file a...