Board of Registration Com'rs v. Campbell

• Decision Date: 27 October 1933
• Citation: 251 Ky. 597,65 S.W.2d 713
• Parties: BOARD OF REGISTRATION COM'RS et al. v. CAMPBELL. CAMPBELL v. BOARD OF REGISTRATION COM'RS et al.
• Court: Kentucky Court of Appeals

65 S.W.2d 713

251 Ky. 597

BOARD OF REGISTRATION COM'RS et al. v. CAMPBELL.

CAMPBELL v. BOARD OF REGISTRATION COM'RS et al.

Court of Appeals of Kentucky

October 27, 1933

As Modified on Denial of Rehearing December 12, 1933.

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Barney J. Campbell, Jr., for himself and all other legal voters and Democratic candidates of the City of Louisville against the Board of Registration Commissioners of the City of Louisville and others. A special demurrer to the petition was in part sustained and in part overruled, and a general demurrer sustained, and from a judgment dismissing the petition, plaintiff and defendants appeal.

Affirmed as to the board, and reversed as to plaintiff.

Eugene R. Attkisson, of Louisville, for Campbell, Jr.

Rowan Hardin, of Louisville, for Board of Registration Com'rs.

Shackelford Miller, Jr., of Louisville, for himself as Chairman, and for Owsley Brown, member of the Democratic City and County Executive Committee.

Frank M. Drake, of Louisville, for Harris Coleman.

RICHARDSON Justice.

Barney J. Campbell, Jr., as the Democratic candidate for alderman Twelfth ward, and as a resident, citizen, taxpayer, voter and qualified elector, of Louisville, Jefferson county, brought this action in the Jefferson circuit court against the board of registration commissioners of the city of Louisville, the members of the Democratic and Republican county executive committees, and the individual members thereof, to have declared his legal rights, as they were affected by the interpretation and execution of the Model Registration Act for Cities of the First Class (Acts 1930, c. 48), by the registration board of commissioners, appointed and acting thereunder.

In his petition Campbell charged that the questions involved were of common and general interest to all the residents and legal voters and Democratic candidates of the city, and that it was impractical to bring all of them before the court within a reasonable time. He sought permission to sue for himself and all other legal voters, and Democratic candidates of the city, under section 25 of the Civil Code of Practice.

The defendants by special demurrer questioned Campbell's right to sue on the ground that the subject-matter was not of that character of common and general interest entitling him to sue for himself and others under section 25; also, that the Democratic and Republican committees, or the members thereof, were not necessary or proper parties. The trial court sustained it on both grounds. In this we concur.

It is urgently insisted that the petition presents merely "political rights," that they are not justiciable, and therefore Campbell has no right as a citizen, taxpayer, and voter, nor as an accredited candidate of his party, to relief by the processes of the courts. The trial court overruled the special demurrer to this extent. A general demurrer was sustained to the petition; Campbell declined to plead further and his petition was dismissed.

In Stiglitz v. Schardien, 239 Ky. 799, 40 S.W.2d 315, 317, it was written: "If an act of the Legislature infringes the constitutional rights of a citizen, taxpayer, and voter, he may invoke the processes of the courts to prevent the performance of a duty attempted to be imposed by such void act. Hager v. Robinson, 154 Ky. 489, 157 S.W. 1138; Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316; Ragland v. Anderson, 125 Ky. 141, 100 S.W. 865, 30 Ky. Law Rep. 1199, 128 Am. St. Rep. 242; Yates, Clerk, v. Collins, 118 Ky. 682, 82 S.W. 282, 973, 26 Ky. Law Rep. 558, 930."

A fortiori, if a board, or commission or other administrative agent of the state, in the interpretation and administration of an act of the Legislature, denies or transgresses upon constitutional or statutory rights of a citizen, taxpayer, and voter, he may invoke the processes of the courts to avert such a deprivation of his rights. The circuit court, under section 126 of the state Constitution and section 474, Civil Code of Practice, has superintending control over such board, commission, or other state agency in its interpretation and administration of an act of the Legislature. Roberts v. City of Louisville, 92 Ky. 95, 17 S.W. 216, 13 Ky. Law Rep. 406, 13 L. R. A. 844; Board of Park Commissioners v. Speed, 215 Ky. 319, 285 S.W. 212; Poston v. Daily, 210 Ky. 649, 276 S.W. 554; Joseph Moore et al. v. Jas. H. Bay et al., 149 Md. 286, 131 A. 459; State v. Woodbury, 321 Mo. 275, 10 S.W.2d 524; Walker v. Grice, 162 S.C. 29, 159 S.E. 914.

It is agreed that the following questions are presented in Campbell's petition:

"A. Whether or not the failure of a challenged voter to appear personally at the hearing of the challenge is conclusive evidence that he is no longer entitled to registration.

B. Whether or not the board, in passing upon a challenge, may admit the reports of investigators as evidence.

C. Whether or not the 'protest' filed by a voter against the proposed cancellation of his registration must be in writing, or sworn to, or both.

D. Whether or not notice of the hearing of an appeal from the action of the board must be given to party committees.

E. Whether or not the use of the suspended file (hereinafter described) is permissible."

To dispose of them properly, we are required to review certain sections of the Model Registration Act (Sections 1486b-28 to 1486b-61, inclusive, Baldwin's 1933 Supplement Ky. Statutes [Acts 1930, c. 48]).

Section 4 creates a board of registration commissioners of a city of the first class. The second literary clause of section 4 confers on the board the right to adopt such reasonable rules and regulations as may be necessary for the proper conduct of its office and the discharge of the duties imposed on it by the act.

Section 5 expressly requires that the board shall consist of the mayor and two members to be appointed by him from the two dominant political parties. It is provided in section 5 that if the members of the board cannot agree on any question in connection with the administration of the duties imposed upon it, then the mayor shall cast the deciding vote. Section 8 authorizes the board to employ and appoint such clerks and employees from time to time, and for such periods of time, as in its opinion may be necessary for the proper conduct of its business, from a list of names furnished by the county executive committees of the dominant political parties. Section 9 confers on any member of the board, the registrar, assistant registrar, and each employee of the board, temporary or permanent, authority to administer an oath to any person of whom information is sought touching any matter pertaining to the administration of the act. A clause in section 15 reads: "The registration officers shall register every person who shall apply to be registered, provided such applicant furnishes the information required to be given [in accordance with the Act] and makes oath on the form prescribed by the Board that he possesses the legal qualifications for registration." Section 3 fixes the qualifications of the applicants for registration. A paragraph in section 15 directs who shall be entered by the registrar or deputy registrar or the inspector on the registration record in the place provided for that purpose, in the name of the person applying therefor, in which shall be stated the description of the voter as therein set out.

In section 17 it is provided that, "no person shall have the right to register during the period of 65 days in every year commencing 59 days next preceding any election held in November of any year." Section 21 authorizes a voter to apply at any time to the board in person, or by letter signed by him, to have his registration, or party affiliation changed, and outlines the duty of the board relative thereto. Section 23 requires the preservation for a period of not less than five years of the original of all canceled registration records in a separate file, and when any registration record is cancelled by the board, it shall be marked in large letters in ink, "cancelled," on which shall be noted in ink, the date of and the reason for such cancellation. Section 24 outlines the method to be used by the board to purge the registration records and requires the board to keep them up to date. Subsection (c) of section 24 provides that when any elector moves out of the precinct in which he is registered, or to which his registration record has been transferred by the board, to a different precinct in the city, it shall be his duty to make and sign an application to have his registration record changed and transferred to the proper precinct and to deliver the same to the office of the board in person, by mail or otherwise. Subsection (c) also confers on the board authority on the application of any elector, or upon the basis of information furnished by the agencies therein named, or by individual persons, to transfer the registration record of any elector to the precinct where the same belongs, and in doing so it is required thereby to follow the method therein prescribed. Subsection (d) of section 24 imposes the duty on the board to cause to be made a house to house canvass in each precinct of the city, each year, for the purpose of checking the registration records, and it specifically directs how it shall be made and prescribes definitely the duties of the investigators in each precinct, appointed by the board as therein directed for that purpose. Subsection (d) also states that a canvass shall be made by the inspectors of each precinct during the first two weeks of the period of fifty-nine days next preceding the general election held each year; that the board shall prepare and furnish each...