Berndt v. Fitzpatrick

• Decision Date: 28 September 1945
• Citation: 189 S.W.2d 678,300 Ky. 484
• Parties: BERNDT v. FITZPATRICK et al.
• Court: Kentucky Court of Appeals

189 S.W.2d 678

300 Ky. 484

BERNDT v. FITZPATRICK et al.

Court of Appeals of Kentucky

September 28, 1945

Appeal from Circuit Court, Kenton County; Rodney Bryson and Joseph P. Goodenough, Judges.

Petition by Henry A. Berndt against Thomas P. Fitzpatrick and the County Board of Election Commissioners for a recount of ballots cast in the primary to determine the Democratic nomination for the office of sheriff of Kenton County. From a judgment adjudging Thomas P. Fitzpatrick the nominee, Henry A. Berndt appeals, and Thomas P. Fitzpatrick cross-appeals.

Judgment affirmed on appeal and cross-appeal not considered.

Sawyer A. Smith and Howell W. Vincent, both of Covington, for appellant.

O. M Rogers and Rodney King, both of Covington, for appellees.

SIMS Justice.

Henry Berndt and Thomas P. Fitzpatrick were the only two candidates seeking the Democratic nomination for the office of Sheriff of Kenton County in the primary held on August 4, 1945. Fitzpatrick won the nomination by 84 votes and Berndt filed a petition against Fitzpatrick and the County Board of Election Commissioners asking a recount as is provided in KRS 122.060. The recount resulted in Fitzpatrick being adjudged the nominee by 11 votes. Berndt appeals and Fitzpatrick cross appeals.

Only two precincts are involved on this appeal, 'G' and 'E' in the Third Ward of the City of Covington. On the recount of precinct 'G,' Fitzpatrick received 75 and Berndt 29 votes. The court refused to recount 'E,' where the Canvassing Board certified that Fitzpatrick received 99 and Berndt 41 votes, on the ground that the ballots were not signed by one of the judges of the election in his handwriting but by stencil, and could not be counted under KRS 118.280.

This appeal presents but one question, whether or not in an action for a recount the court may resort to parol and extrinsic evidence in determining whether a ballot is signed by a judge of the election as provided by KRS 118.280. Counsel for Berndt in briefs, and in oral argument, vigorously, and with a considerable degree of plausibility, insist that in a recount case the court must take the ballots as they appear in the box and can not hear evidence in determining whether or not they are signed by a judge of the election; that the court is circumscribed by the same limitations as the Canvassing Board and has no more power than it has to hear proof as to who signed the ballot, but, like the Board, is limited to the ministerial act of counting the ballots.

We have held the statute requiring a judge of the election to sign his name on the back of the ballot before handing it to the voter to be mandatory. Johnson v. Caddell, 250 Ky 640, 63 S.W.2d 810; Wurts v. Newsome, 253 Ky. 38, 68 S.W.2d 448; Brandenburg v. Hurst, 289 Ky. 155, 158 S.W.2d 420.

After the Hurst case came down, the Legislature amended the statute in 1942, and KRS 118.280 says that no ballot shall be counted which is not 'signed in the handwriting by one of the judges'; but it does not say that ballots shall not be counted if not signed by the clerk. This same statute provides that on the back of each ballot there shall be a line designated for the clerk's signature and another designated for the judge's signature.

On the back of each ballot counted by the trial court in precinct 'G' appears the signature 'C. McGuire' on the line designated for the clerk's signature, but the line designated for the signature of the judge had nothing written on it.

Over Berndt's objection, Fitzpatrick introduced Mrs. McGuire as a witness and proved by her that she had received notice from the Election Commission on July 19, 1945, that she was to serve as a judge of the election in precinct 'G,' and the original of this notice is filed as an exhibit with her deposition. The Secretary of the Election Commission Thomas E. McGill, filed the Commissioner's list of election officers as an exhibit with his deposition, and Mrs. McGuire's name appears thereon as the democratic judge of this precinct. Mrs. Minnie Ertel, stenographer to the county auditor, filed with her deposition a receipt wherein the officers of precinct 'G' acknowledged payment for their services, and Mrs. McGuire's signature appears on that instrument as 'judge.'

Mrs. McGuire testified that the woman serving as clerk was inexperienced in such matters and as she had previously been an election officer, she, with the consent of the clerk, filled out the primary and secondary stubs, and when she turned the ballots over to sign as judge, she inadvertently signed on the top line designated for the clerk's signature instead of the bottom line where the judge should have signed. She further testified she served as one of the judges of the election in the precinct.

We agree with counsel for Berndt that there is a clear distinction between an action brought for a recount under KRS 122.060 and one brought to contest an election under KRS 122.020, as is pointed out in Wurts v. Newsome, 253 Ky. 38, 68 S.W.2d 448. In a recount, testimony may not be heard as to the qualifications of the candidate, fraud bribery, illegal votes or corrupt practices, as they are grounds for a contest and are not directly connected with the counting of the ballots. But in a recount, parol testimony or extrinsic evidence may be heard for the purpose of determining if there is a...