Booe v. Kenner

• Decision Date: 01 February 1899
• Citation: 49 S.W. 330,105 Ky. 517
• Parties: BOOE, County Judge, et al. v. KENNER. [1]
• Court: Kentucky Court of Appeals

49 S.W. 330

105 Ky. 517

BOOE, County Judge, et al. v. KENNER. ^[1]

Court of Appeals of Kentucky.

February 1, 1899

Appeal from circuit court, Fleming county.

"To be officially reported."

Petition by E. H. Kenner against C. E. Booe, county judge, and others composing the county canvassing board of elections, to compel defendants to recanvass certain ballots. Judgment for plaintiff, and defendants appeal. Reversed.

Jos. H Power, G. A. Cassidy, B. S. Grannis, and J. S. Power, for appellants.

J. B Cumber, W. G. Dearing, F. H. McCartney, and John P McCartney, for appellee.

HOBSON J.

At the November election, 1897, appellee, E. H. Kenner, was a candidate for clerk of the Fleming county court. By the returns of the election, as the vote was counted by the precinct officers, appellee received 1,900 votes, and his opponent, George P. Dudley, 1,897 votes; but there were 20 disputed ballots returned with the poll books, which were opened by the county canvassing board, who counted 7 of these ballots for Dudley, and 2 for appellee, making the result stand, for appellee 1,902 votes, and for Dudley 1,904 votes, and they accordingly issued the certificate of election to Dudley on November 5, 1897. Thereafter, on November 13th, appellee filed his petition for a mandamus against the county canvassing board to recount the votes and issue to him the certificate of election; alleging that the disputed ballots counted for Dudley could not be legally counted, and that he had received a majority of the votes cast. On the hearing of this petition the circuit court held that 3 of the disputed ballots should be counted for Dudley, and 1 for appellee, which would give Dudley 1,900 votes, and appellee 1,901 votes; and he thereupon awarded a mandamus requiring the county canvassing board to meet again and recount the vote pursuant to his judgment, and issue a certificate of election to appellee. To this judgment they excepted, and have prosecuted this appeal to this court, insisting that the circuit court could not by mandamus control them as to how they shall decide upon the validity of the disputed ballots.

It will be observed that the canvassing board met as provided by law and acted upon the returns made to them. There is no complaint of their failure to discharge any duty imposed upon them. The complaint is simply that they have decided wrong, and counted ballots which they ought not to have counted. The question is therefore presented whether appellee's remedy when they decided against him was to give notice, and take his case before the board for contesting elections, or to apply for a mandamus, as in this case. This precise question was presented to this court in the recent case of Anderson v. Likens (Ky.) 47 S.W. 867, where it was unanimously held, after full discussion, that mandamus is not the proper remedy. The court said: "For the mode and time of judicial investigation as to the meaning, legality, and regularity of the ballots thus required to be sealed up and returned to the clerk of the county court, as the statute provides, is by appeal to the contesting board, evidently intended to be invested with judicial functions; thence by appeal to the circuit court; thence to the court of appeals." This decision only applied a rule often announced by this court. Thus, in City of Louisville v. Kean, 18 B. Mon. 9, it was said: "The doctrine seems to be well settled that, when the inferior tribunal or the subordinate public agents have a discretion over the subject-matter, that discretion cannot be controlled by mandamus, although it may have been improperly exercised. If there be a refusal to act upon the subject or to pass upon the question on which such discretion is to be exercised, then the writ may be used to enforce obedience to the law; but, when the question has been passed upon, it will not be used for the purpose of correcting the decision." In Dickens v. Cemetery Co., 93 Ky. 389, 20 S.W. 283, the court said: "It is well settled by this court (see Cassidy v. Young, 92 Ky. 227, 17 S.W. 485) that, to entitle a party to this writ, the officer's duty must be strictly ministerial. But, if he may act in the premises according to his judgment and...