Charles v. Flanary

• Citation: 192 Ky. 511,233 S.W. 904
• Parties: CHARLES v. FLANARY.
• Decision Date: 21 October 1921
• Court: Court of Appeals of Kentucky

233 S.W. 904

192 Ky. 511

CHARLES v. FLANARY.

Court of Appeals of Kentucky.

October 21, 1921

Appeal from Circuit Court, Pike County.

Contest of primary election by W. E. Flanary against W. W. Charles. Judgment for contestant, and defendant appeals. Affirmed.

J. J Moore and Willis Staton, both of Pikeville, for appellant.

John D Carroll and Hazelrigg & Hazelrigg, all of Frankfort, and Stratton & Stephenson, of Pikeville, for appellee.

THOMAS J.

This is a contest proceeding for the Republican nomination for the office of county judge of Pike county, and was instituted under the provisions of subsection 28 of section 1550 Kentucky Statutes, by the appellee, W. E. Flanary, against the appellant, W. W. Charles, both of whom were candidates for the nomination in the primary election on August 6, 1921. The regular judge of the Pike circuit court, where the proceedings were pending, declined to sit and hear the case, and the special judge, who was appointed by the Governor to try it, dismissed it upon the ground that the notice of contest was not served in time, but at the present term of this court that judgment was reversed (Flanary v. Charles, 192 Ky. 355, 233 S.W. 748), and upon a second hearing, when the case was heard upon its merits, it was adjudged that appellant and contestee, Charles, who received 360 votes more than the contestant, Flanary, was not entitled to the nomination because he had violated some of the provisions of what is known as the Corrupt Practice Act, which is sections 1565b1-1565b21, vol. 3 Kentucky Statutes, both inclusive, and being chapter 13, p. 53, Session Acts 1916, and the nomination was awarded to Flanary, he having received the next highest number of votes, and had not violated any of the provisions of the statute.

From that judgment the contestee prosecutes this appeal and for a reversal his counsel urge three grounds: (1) That the court erred in admitting any evidence for the contestant because it was not taken within five days after the issues were made up; (2) that the evidence is not sufficient to sustain the judgment; and (3) that section 1565b11, is unconstitutional in so far as it authorizes the awarding of the nomination to any candidate not receiving a majority or a plurality of all the legal votes cast in the election. These grounds will be disposed of as briefly as possible in the order named.

1. The notice of contest was served on appellant on the 16th day of August, 1921, and warned him to appear and answer on the 22d day of that month, when he appeared at the place stated in the notice and filed his answer and grounds of counter contest, and on the next day (August 23) the reply of contestant was filed and an amended reply was filed on the day following, when the issues were completed. On the 24th of August the regular judge of the district notified counsel for contestant that he would be in Pikeville to try the case on the 27th of that month, which was on Saturday. On the next day he notified the same counsel that, for reasons which he deemed satisfactory, he declined to sit in the case, and on the Monday following entered an order to that effect. On Tuesday, the 30th, the Governor designated a special judge to preside and try the case, and on the next day he notified the clerk of the court that he would hear the case on September 5 on oral proof. Contestant began the taking of his proof by depositions on August 29, and continued to do so on August 30 and 31, when his counsel learned of the appointment of the special judge to try the case, and of his intention to hear it on September 5 on oral proof. Thereupon counsel adjourned the taking of depositions and subp naed the witnesses to appear for the trial on September 5 to testify orally.

The position of counsel concerning this ground, as we understand it, is that the statute providing for the contest of a primary election (subsection 28, § 1550), coupled with some statements in the opinion in the case of Lay v. Rose, 177 Ky. 303, 197 S.W. 921, required appellant to immediately commence the taking of his testimony after the issues were made up on August 24, and to complete it five days thereafter, which would not be later than August 30. It is therefore insisted that no evidence taken after that date, and no oral evidence introduced after that date could be legally heard at the trial, which occurred more than a month afterwards, and the court erred in the admission of any of it at the trial, although it composed the great bulk of contestant's testimony. We cannot agree with this contention. If the language of the opinion of the Lay Case upon this point, which is so much relied on by counsel, was pertinent and necessary to the determination of the only question involved therein, and possessed no elements of dictum, it would not necessarily follow that counsel's position was correct, for in that case no judge was obtained to try the case until more than a month after the issues were made and the statements of the opinion, upon which counsel rely, were made in the light of the peculiar facts presented. But, as indicated, the question of practice involved was not before this court for the purpose of determination in that case, since it was held that the contest notice was not filed within the requisite five days after the ascertaining of the result of the election by the election commissioners, from which date, the opinion held, the time for instituting the contest commenced.

We have read the statute providing for this character of contest with great care, and fail to find any provision in it which expressly or by implication fixes the time within which either party may take or complete his testimony. The time is prescribed in which the pleadings shall be made up, and it says: "The judge shall proceed to a trial of said cause within five days after issue is joined as herein provided"--which latter requirement is necessarily directory. Power is conferred upon the court or judge trying the case to hear the witnesses orally, or require the parties to take the proof by deposition, neither of which requirements can be made until a judge is found who is willing to preside at the trial, and, of course, the oral proof cannot be heard except during the trial. It is further provided that--

"The court may require the contestant, or the person who has the burden of proof under the issues joined, to complete his proof in not less than five days, and the contestee, or the person not having the burden, to complete his proof in not less than five days thereafter, and each party may be given one day additional for producing evidence in rebuttal, and no greater time shall be extended, unless the court be satisfied that the ends of justice demand it."

This provision clearly refers and applies to the hearing of evidence and the introduction of testimony at and during the trial of the case; i. e., the court may limit the time within which the one having the burden may introduce his testimony upon the hearing to five days, and the same limitation may be imposed upon the other party, and each of them may be confined to one day for the introduction of rebuttal testimony "unless the court is satisfied that the ends of justice demand" an extension of time. The purpose of the Legislature evidently was to limit the time consumed in the trial to 12 days, if possible, and thereby further the central idea of speed in disposing of the contest. It is easy to imagine many contests, covering large districts or territories, where many grounds and collateral issues are involved, that 12 days would be an exceedingly short time in which to try the case, and under the statute, if the ends of justice demand it, that time may be extended by the court. On the other hand, the judge is not forbidden by the statute to limit the time for the introduction of testimony to a less number of days than the statute specifies, if no injustice will be done, and in that case it would be his duty to do so. So interpreting the statute, it follows that this ground is without merit.

2. As heretofore stated, the sole grounds of contest and counter contest, tried below and involved on this appeal, are violations of the Corrupt Practice Act by the respective parties. As against the contestee it is alleged that he spent in the election, or others spent for him, with his knowledge and consent, more than $1,000, which is the maximum amount for purely legitimate purposes allowed by the statute for a county office, and that he failed to include any part of it in either his ante or post election expense accounts, which the act requires to be sworn to and filed by the candidate. Furthermore, it is alleged that he, with candidates for other nominations, formed a slate and pooled their money in a "jack pot" to be used in the election, and especially on the election day, to bribe and otherwise corrupt voters to support the candidates who were members of the pool, and that he contributed to that fund as much as $4,000, which was used by his friends and "strikers" at the various precincts of the county on election day in carrying out the purpose for which it was contributed, with his knowledge and consent, all of which was in direct violation of the provisions of the Corrupt Practice Act.

On the day of the election appellant was at the Knox precinct in Pike county, which contains some 300 or 400 Republican voters. As many as three unimpeached witnesses testified that they saw him at that precinct during the election day with a large amount of money, composed of small bills, and that he on a number of occasions, gave some of it to the witnesses for the purpose of paying for votes cast for him, and that the money was so paid with his knowledge and consent; furthermore, that he himself paid a...