Bingham v. Smith and Duff

• Decision Date: 29 September 1925
• Parties: Bingham v. Smith and Duff, Jr.
• Court: United States State Supreme Court — District of Kentucky

210 Ky. 256

Bingham v. Smith and Duff, Jr.

Court of Appeals of Kentucky.

Decided September 29, 1925.

1. Elections — If Facts Alleged Show Eligibility to Hold Office, Not Necessary for Contestant to Allege that he was Eligible. — In contest of primary election, it was not necessary to allege that contestant was eligible to hold the office, if the facts alleged showed he was eligible under Constitution, section 100.

2. Elections — Contestant of Primary Election Need Only Allege, in Substance, that he was Candidate for Office in Question, and that His Name Appeared on Ballot. — It is only necessary in primary election contest to allege, in substance, that the contestant was a candidate for the office in question, and that his name regularly appeared on the official ballot, since Ky. Stats., section 1550-27, is exclusive for correcting errors and placing name on primary ballots, and such errors are not available as ground of contest after election.

3. Elections — Allegation of Bribery in Election Contest Need Not Aver that Bribery Affected Result. — An allegation in a primary election contest, that opponent used bribery, need not aver that alleged bribery affected the result, under Ky. Stats., section 1565b-11, which provides that election obtained by bribery is void.

4. Elections — Indefinite Allegations of Bribery in Primary Election Contest Not Properly Attacked on Demurrer. — Indefinite allegations of bribery in primary election contest are not properly attacked on demurrer, the proper remedy being by motion or rule to make more specific.

Appeal from Perry Circuit Court.

SAUFLEY & WARD for appellant.

MORGAN, EVERSOLE & BOWLING for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

At the primary election held in Perry county on August 1, 1925, J.A. Smith, E.C. Duff, Jr., T.G. Bingham and others were candidates for the Republican nomination for county judge. T.G. Bingham received 841 votes, E.C. Duff, Jr., 1,290 votes, J.A. Smith 1,742 votes, and each of the other candidates received a less number of votes than T.G. Bingham. On August 5, 1925, the board of election commissioners canvassed the returns and awarded the certificate of nomination to J.A. Smith.

On August 6, 1925, T.G. Bingham served notice and grounds of contest on J.A. Smith. On the next day he served amended notice and grounds of contest on E.C. Duff, Jr. After the filing of various motions and pleadings, the court sustained a demurrer to the notice and amended notice of contest and dismissed the proceeding. Bingham has appealed.

In addition to other allegations we find the following in the notice and amended notice of contest:

"The contestant, T.G. Bingham, says that on and before the 1st Saturday in August, 1925, he was more than twenty-four years of age and a citizen of Kentucky, and had resided in the state of Kentucky and within Perry county continuously for more than two years, and that desiring to become a candidate for the Republican nomination for the office of county judge of Perry county he had at the proper time and at the proper place and before the proper officer filed his `notification and declaration' to that effect, all as required by law, and that thereafter and at the proper time, proper place and before the proper officer he had filed as required by law an itemized account of his expenditures and contributions toward securing said nomination, as required by law, and that thereafter his name was legally placed upon each and all of the Republican ballots used at the said primary election as a candidate for the said nomination and on the day of the said election his name was legally on each and all of said ballots used in Perry county as such candidate.

"Contestant says that at the same election there appeared upon each and all of said ballots as candidates for the same nomination the names of the contestee herein, J.A. Smith, and of E.C. Duff, Jr., and various other candidates. . . .

"The contestee, J.A. Smith, in securing said nomination and in his efforts toward securing said nomination was guilty of gross violations of what is known as the `Corrupt Practice Act,' being sections 1565b-1 to 1565b-11, inclusive, of the Kentucky Statutes, in that the said J.A. Smith did...