Clark v. Ardery
| Decision Date | 11 August 1949 |
| Citation | 310 Ky. 836,222 S.W.2d 602 |
| Parties | CLARK v. ARDERY. |
| Court | Kentucky Court of Appeals |
Original prohibition proceeding by W. Troup Clark against W. B Ardery, Judge, to prohibit and restrain the respondent from enforcing a judgment entered by him in a mandamus suit.
Petition for writ of prohibition sustained.
Reid Prewitt, Mt. Sterling, for appellant.
Phillip P. Ardery, Frankfort, for appellee.
CLAY Commissioner.
In an original proceeding before this Court the petitioner, suing on behalf of himself and others similarly situated, requests us to prohibit, enjoin and restrain the respondent, Judge William B. Ardery, from enforcing an original and supplemental judgment entered by him in a mandamus suit on July 27, 1949. The petition was considered by the full Court with the exception of Judge Rees.
The controversy arises out of proceedings initiated in Bourbon County to purge a number of voters who allegedly have become disqualified because of death, absence, removal or other reason. The Bourbon County Board of Registration and Purgation (hereinafter referred to as 'Board') met on July 7, 1949 for the purpose of conducting an investigation and removing from the election rolls the names of those persons no longer properly registered. After sitting for several days, the Board prepared a list of approximately 5300 names whose qualifications were in question. Apparently they were given notice as required by statute, and some appeared. On July 25 the Board adjourned without taking any final action with respect to the great majority of these persons. The procedure before the Board, so far as it went, is not in question.
Soon after the Board's adjournment, a mandamus suit was filed by a resident taxpayer of Bourbon County. He prayed that the Board be required to reconvene and perform, prior to August 6, 1949, its duty of purging and removing from the registration lists the names of all persons who were not qualified to vote. That cause was heard before the respondent, Judge Ardery, and the original and supplemental judgments entered by him are the ones subjected to this attack. In the supplemental judgment (which incorporates the terms of the original order) he found that 'the time provided for further meetings' of the Board under KRS Chapter 117 had expired before a final order could be entered. That judgment thereupon decreed:
The supplemental judgment further provided that those voters whose rights were not determined in the original judgment, and who were unable to or did not appeal to the Circuit Judge or the County Judge to have their voting rights summarily determined, should be allowed to vote in the primary election upon executing a sworn written statement showing those facts and their legal qualifications.
A preliminary question raised by respondent may be disposed of at the outset. He filed a special demurrer to the petition in this proceeding and contends petitioner had no right to sue for and on behalf of any one except himself. We are referred to the case of Board of Registration Com'rs et al. v. Campbell, 251 Ky. 597, 65 S.W.2d 713, wherein a special demurrer was sustained partly on the ground that the subject matter of the suit was not of such common and general interest as would entitle the plaintiff to sue on behalf of other voters. The record in the present case shows plainly that the issue involved is of common and general interest to all of the voters whose registrations were suspended, and it is obviously impracticable to bring these persons before the Court within a reasonable time. Under Civil Code of Practice Section 25, petitioner may properly sue on behalf of others similarly situated, and the judgment complained of, if erroneous or void as to petitioner, is erroneous or void as to them.
A second preliminary matter was argued by the parties which involves petitioner's right to a Writ of Prohibition. Under Section 110 of the Kentucky Constitution, this Court is granted power 'to issue such writs as may be necessary to give it a general control of inferior jurisdictions.' As stated in Equitable Life Assur. Society v. Hardin, 166 Ky. 51, at page 55, 178 S.W. 1155, 1157: 'The well-established doctrine is that this court has the power to issue such a writ when the inferior court is proceeding out of its jurisdiction, or is proceeding erroneously within its jurisdiction, and the remedy for the error by appeal is not adequate.'
The two grounds upon which such writ may be issued are more particularly defined in Evans v. Humphrey, Judge, 281 Ky. 254, 135 S.W.2d 915. They are: (1) where a lower Court is proceeding in a matter in which it lacks jurisdiction and there is no remedy in an intermediate court, and (2) where the Court exercises its jurisdiction erroneously and great injustice and irreparable injury will result because the petitioner has no adequate remedy by appeal or otherwise. See also 42 Am.Jur., Prohibition, Section 8 et seq. Clearly petitioner and those similarly situated had no remedy by appeal from the judgments complained of because they were not parties to that suit. It is likewise obvious that the petitioner and others similarly situated will suffer grave injustice and irreparable injury if the Court has erroneously deprived them of their right to vote.
It is argued petitioner may still vote if he files the affidavit prescribed in the supplemental judgment. We do not so read it. This judgment permits the filing of an affidavit by those 'whose rights were not determined in said original judgment * * *.' Petitioner's rights were determined in the original judgment when his registration was suspended.
Even if the construction contended for by respondent is permissible the minimum effect of the judgment is to impair petitioner's right to vote. It is an automatic challenge of this right. It places on petitioner, and others similarly situated, the burden of proving their qualifications at the polls. If properly registered (as provided in KRS Chapter 117, under the authority of Section 147 of the Constitution), a person is presumptively entitled to vote. See Poston et al. v. Daily et al., 210 Ky. 649, 276 S.W. 554. The action of the respondent destroyed this presumption and required petitioner to present further evidence of his right to qualify. If responden...
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