Campbell v. Little

• Citation: 251 Ky. 812,66 S.W.2d 67
• Parties: CAMPBELL v. LITTLE et al.
• Decision Date: 15 December 1933
• Court: Court of Appeals of Kentucky

66 S.W.2d 67

251 Ky. 812

CAMPBELL v. LITTLE et al.

Court of Appeals of Kentucky

December 15, 1933

Appeal from Circuit Court, Breathitt County.

Action by George W. Little and others against Pearl Campbell for review and recount of ballots in election for office of county judge, wherein defendant filed a counterclaim. Judgment for plaintiff, and defendant appeals.

Affirmed.

C. C Turner, of Frankfort, and Ervine Turner, of Jackson, for appellant.

Grannis Bach and A. H. Patton, both of Jackson, for appellees.

RICHARDSON Justice.

At the November election, 1933, George W. Little was the republican candidate and Pearl Campbell, the democratic candidate for the office of county judge of Breathitt county. The election commissioners tabulated and counted for Little 3,523 votes and for Campbell 3,582 and were preparing to issue a certificate of election to Campbell. Before the election certificate was issued, Little filed this action for a review and recount of the ballots in Spring Fork precinct No. 12 charging that 156 of them were not signed by either of the judges of the election but notwithstanding the absence of the signatures of the judges, the election commissioners had counted them and were preparing to certify the election of Campbell, when in truth if the 156 ballots were excluded and not counted for either him or Campbell, he was elected to the office of county judge by the majority of the voters of the county and entitled to a certificate of election. Campbell filed an answer and counterclaim traversing, and further alleged, that in Elkatawa precinct No. 3, 184 ballots had been voted and of this number, 162 cast for Little and 22 for Campbell. Of the 162 counted for Little, there appeared on 60 or more of them, external, distinguishing marks of disfigurement or mutilation, which indicated to another how the voter who had voted each ballot had voted at the election, and that the ballots so marked should not be counted for Little. His answer and counterclaim were traversed by a reply.

The ballot boxes in the two precincts were produced in open court, opened, and the ballots found in each of them were examined by the court in the presence of the parties and counsel.

The ballot boxes of Spring Fork precinct No. 12, when opened in court, contained 380 ballots, on the back of 227 of which neither of the judges of the election had signed his name; of the 227 there were cast for Campbell 149; 32 of the 227 were not voted in this race; 55 of those voted for Campbell were signed by the clerk and one of the judges and 8 were not signed by the clerk or either of the judges. The trial court declined to permit to be counted the ballots not signed by either of the judges in Spring Fork precinct No. 12. Lee Allen, one of the judges of the election, was present in court and offered to sign the ballots if permitted to do so by the court. Campbell entered his motion for an order permitting Allen to sign them; the court overruled his motion and refused the judge of the election the privilege of signing them.

The ballot boxes of Elkatawa precinct No. 3, when opened in court, contained 195 ballots. One of them had the stub still attached; another was not signed by either of the judges; on 102 of them the distinguishing mark of which Campbell complains was found; 91 were free of such marks. Of those with the distinguishing mark on them, 85 were cast for Little and 12 for Campbell; 5 of the ballots were not voted in this race; of those on which there were no distinguishing mark, 77 were voted for Little and 9 for Campbell; 5 of those bearing the mark were not voted in the race.

It is not claimed by either party that the ballot boxes or the ballots therein were tampered with at any time before they were opened in court. Their integrity is not disputed. Section 1460 Baldwin's 1933 Supplement, Ky. Statutes, requires a blank line to be printed on the back of every ballot, followed by the word "judge," and that after the ballot has been detached from the stub book, on the back of the ballot, and before it is delivered to the voter to be voted, one of the judges shall sign his name on such blank line and no ballot not so signed by one of the judges shall be counted by the canvassing board, whose duty it is to certify the results of the election. This statutory provision is mandatory and final.

The actuating purpose of this section was to make it assured that, from the moment the ballot leaves the hands of the elector until it shall be received by the election commissioners, it cannot be substituted or otherwise tampered with. It is presumed that the voter, after he receives the ballot for the purpose of stenciling it to indicate his choice of the candidates, will inspect it and observe that it is authenticated by the signature of one of the judges, and, if not, demand that it be so identified. In every case where the judges of the election fail to authenticate the ballot with one of their signatures as required by the statute and the voter fails to observe his dereliction, in this respect, the absence of the signature of one of the judges is regarded by the statute the result of the combined negligence of the judges of the election and the voter who casts his ballot. And therefore, if on account of the ballot not being so authenticated, it is not counted, it is partially the sequence of the voter's own negligence. Johnson v. Caddell et al., 250 Ky. 640, 63 S.W.2d 810. Section 1569, Ky. Statutes, in part reads: "No voter shall place any mark upon his ballot, or suffer or permit any other person to do so, by which it may be afterward identified as the one voted by him." The same section provides a penalty for its violation.

Section 1570, Ky. St., provides: "If any person shall induce, or attempt to induce, any elector to write, paste, or otherwise place on his ballot the name of any person or any sign or device of any kind, as a distinguishing mark by which to indicate to any other person how such elector has voted, such person so offending shall be guilty of felony, and, on conviction, be imprisoned in the penitentiary not less than two nor more than five years. Any ballot having any of the distinguishing marks mentioned in this section shall not be counted for any candidate voted for at that election."

Section 1472, Ky. St. Supp. 1933, directs the voter on receiving his ballot to examine the same carefully, and, after he marks it with a stencil, and detaches the secondary stub, he shall deposit it in the ballot box, and it is "unlawful for any election officer, after such ballot has been delivered to such voter, to look or attempt to look at, or have in his possession, or handle any ballot contrary to law or in any manner whatsoever, except that such voter be a blind or disabled person and cannot mark and deposit his ballot."

These statutory provisions were enacted to carry out section 147 of the Constitution which requires all elections by the people shall be by secret official ballot, with the permission to the Legislature to provide for the voting of persons illiterate, blind, or in any way disabled, preventing their marking their ballots. We have often reiterated the statement that an election by secret ballot is indispensable under this...