Browning v. Lovett

• Decision Date: 13 June 1906
• Citation: 94 S.W. 661,139 Ky. 480
• Parties: BROWNING v. LOVETT. CROLEY v. JONES.
• Court: Kentucky Court of Appeals

94 S.W. 661

139 Ky. 480

BROWNING v. LOVETT.

CROLEY v. JONES.

Court of Appeals of Kentucky.

June 13, 1906

Appeal from Circuit Court, Whitley County.

"Not to be officially reported."

Election contest between R. C. Browning and J. C. Lovett, and between W. B. Croley and M. B. Jones. From a judgment in favor of Lovett and Jones, Browning and Croley appeal. Reversed with directions.

Tye Denham & Jackson, Sharp & Siler, C. W. Lester, and J. W Alcorn, for appellants.

J. D Black and K. D. Perkins, for appellees.

CARROLL C.

The voting population of Whitley county is largely Republican, and in 1905, growing out of dissatisfaction with the conduct of affairs by those in control of the party organization, an independent Republican ticket for five county offices was nominated by petition in the manner provided in section 1453 of the Kentucky Statutes of 1903. The petition requested the county clerk to have the names of all these candidates placed on the official ballot under the device selected by them, and in one and the same column, and it was the duty of the county clerk to place the names of all these candidates in one and the same column as requested, and under the device selected. Creech v. Davis, 51 S.W. 428, 21 Ky. Law Rep. 325. The county clerk, being an active and pliant partisan of the regular Republican nominees, whilst leading these independent candidates to believe that he would comply with their direction and place their names in one and the same column, surreptitiously gave directions to the printer to put the name of each of the five candidates in a separate column, placing over each of the five columns the device selected. This arrangement of the ballot was carefully concealed from the independent candidates and their friends, and was only discovered by them on the eve of the election, and too late to have the fraud corrected. This fraudulent scheme was plainly resorted to by the clerk for the purpose of misleading and confusing the voters, who might desire to vote the independent ticket, by compelling them to stamp the ballot in five places instead of one; the regular Republican ticket being placed in one column. The evidence does not directly disclose that either of the appellees was a party to this fraud, but it is perfectly manifest that it was perpetrated for their benefit, as well as that of the other regular nominees, and deprived the independent candidates of votes they would otherwise have received. Whether or not contestees, who are the willing and grateful beneficiaries of a fraud of this or other like character, practiced in their interest, and who are holding offices as the result of it, would be heard to say that they were innocent of any connection with it, and ignorant of the fact that it was contemplated, presents an interesting question, but, inasmuch as the contestants and appellants in this case do not seek to have the election declared void, we do not deem it necessary to express any opinion concerning it. Wilkins v. Duffy, 70 S.W. 668, 24 Ky. Law Rep. 913.

Notwithstanding this illegal effort to defeat the independent candidates, all of them were declared elected, except the appellant Browning, who was a candidate for county judge, and the appellant Croley, who was a candidate for sheriff. When the election commissioners assembled to canvass the returns, they declined to count or consider the returns of the election officers in precinct No. 13 because the certificate of the election officers was defective, and, leaving out that precinct, they certified that the contestee and appellee Lovett had received a majority of the votes cast for county judge and gave him the certificate, and that contestee and appellee Jones had been elected sheriff, and gave him the certificate. The appellants then contested the election in the manner provided in section 1596a of the Kentucky Statutes of 1903, relying upon various grounds that will be hereafter noticed. When the case came on for trial, the appellants filed their affidavit asking that the regular judge, for reasons therein stated, vacate the bench. This he properly declined to do, as the affidavit did not disclose sufficient grounds under the statutes to require him to vacate, or to make his failure to do so reversible error. The only reason assigned in the affidavit was the fact that the chairman of the Republican county committee, who was alleged to be an active and unscrupulous adherent of the regular ticket, was a brother-in-law of the judge, and had openly boasted of his influence over him, and they believed that he would induce him to decide the contest adversely to the contestants. It does not appear that the judge authorized or approved these statements of Moss, or that he was responsible for them, and the mere fact that some indiscreet or reckless friend of the court makes public boast of his great influence over the judge is no reason why he should vacate the bench.

The contestants requested the court to open the ballot boxes and recount the ballots, and, over the objection of the contestees, their motion was sustained, and the court proceeded to recount the ballots in the presence of the parties. This action of the court was proper, as held in Edwards v. Logan, 70 S.W. 852, 24 Ky. Law Rep. 1099, Preston v. Price, 85 S.W. 1183, 27 Ky. Law Rep. 588. As the count progressed, it was discovered that the ballot box containing the returns from precinct No. 13 had been opened, and the ballots and papers contained therein abstracted. This was the precinct that the election commissioners declined to count, and the judge ascertained the result in this precinct from the certificate made by the officers of the election, and of this action the appellees complain. It appears that the votes received by the independent and regular candidates for county offices were recorded in due form on the blank sheet attached to the ballots, and provided for that purpose, but after this was done the election officers became involved in a dispute, and none of them signed this certificate except the sheriff, but all of the officers did, on the night of the election, sign a certificate in form the same as the certificate attached to the ballots.

This certificate signed by all the officers did not give the contestants as many votes as the certificate signed by the sheriff, but was properly filled out, showing the result in each race, and was certified over the signature of the officers to be a correct return of the vote. Two of the election officers who signed the certificate testified for contestees that it was not correct, as it gave contestants more votes than they received, but their testimony given some months after the election was from memory only. An officer of election will not be permitted to contradict in this manner pending a contest a solemn writing signed by him at the close of an election. It is true that in Broaddus v Mason, 95 Ky. 421, 25 S.W. 1060, a mistake made by the officers of the election was corrected, but in that case all the officers concurred in the fact that a mistake had been made, and exhibited a paper kept while the votes were being counted, showing plainly how the mistake occurred. The mistake...