Clark v. Ardery

CourtCourt of Appeals of Kentucky
Writing for the CourtCLAY, Commissioner.
Citation310 Ky. 836,222 S.W.2d 602
PartiesCLARK v. ARDERY.
Decision Date11 August 1949

222 S.W.2d 602

310 Ky. 836

CLARK
v.
ARDERY.

Court of Appeals of Kentucky

August 11, 1949


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. [222 S.W.2d 603]

[310 Ky. 837] 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 [310 Ky. 838] 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:

'It is, therefore, ordered that the name of each voter listed by the Board for purgation be immediately suspended from the election lists, except those who protested, and whose protests were upheld by the Board
'It is further ordered that the Bourbon County Court Clerk, Ed Drane Paton, remove the registration cards or names of the voters listed by the Board for purgation, except those voters who protested successfully in person the action of the Board, from the registration lists or registration books, so that the names shall not be sent to the precincts on Primary Election day for the coming Primary election on August 6, 1949, in which such voters are not qualified to participate.'

The supplemental judgment further provided that [310 Ky. 839] 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 [222 S.W.2d 604] 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...

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4 practice notes
  • Kiddy v. Board of County Com'rs of Eddy County, No. 5550
    • United States
    • New Mexico Supreme Court of New Mexico
    • April 6, 1953
    ...not to the manner in which the discretionary task shall be performed. Wailes v. Smith, 1893, 76 Md. 469, 25 A. 922; Clark v. Ardery, 1949, 310 Ky. 836, 222 S.W.2d 602. As brought out by the court in Wailes v. Smith, a nondiscretionary or ministerial duty exists when the officer is entrusted......
  • Ross v. State Racing Commission, No. 6335
    • United States
    • New Mexico Supreme Court of New Mexico
    • October 14, 1958
    ...Kiddy v. Board of County Com'rs of Eddy County, 57 N.M. 145, 255 P.2d 678; Wailes v. Smith, 76 Md. 469, 25 A. 922; Clark v. Ardery, 310 Ky. 836, 222 S.W.2d The order of the lower court dismissing the alternative writ of mandamus is reversed with directions to enter a writ ordering the Commi......
  • Studor, Inc. v. Commonwealth, NO. 2011-CA-000474-MR
    • United States
    • Court of Appeals of Kentucky
    • May 4, 2012
    ...discretion in passing upon the matter before it, but such order should not ordinarily coerce a particular determination." Clark v. Ardery, 310 Ky. 836, 842, 222 S.W.2d 602, 605 (1949). In certain circumstances, mandamus is available to remedy arbitrary and capricious acts of discretion when......
  • Appalachian Racing, LLC v. Commonwealth, 2016-SC-000206-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • December 15, 2016
    ...County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 838 (Ky. App. 1994). 12. 664 S.W.2d 907, 912 (Ky. 1984) (emphasis added). 13. 222 S.W.2d 602, 605-06 (Ky. 1949). 14. See KRS 230.300. 15. Foster v. Goodpaster, 161 S.W.2d 626, 628 (Ky. 1942). 16. See Lexington Retail Beverage Dealers Ass'......
4 cases
  • Kiddy v. Board of County Com'rs of Eddy County, No. 5550
    • United States
    • New Mexico Supreme Court of New Mexico
    • April 6, 1953
    ...not to the manner in which the discretionary task shall be performed. Wailes v. Smith, 1893, 76 Md. 469, 25 A. 922; Clark v. Ardery, 1949, 310 Ky. 836, 222 S.W.2d 602. As brought out by the court in Wailes v. Smith, a nondiscretionary or ministerial duty exists when the officer is entrusted......
  • Ross v. State Racing Commission, No. 6335
    • United States
    • New Mexico Supreme Court of New Mexico
    • October 14, 1958
    ...Kiddy v. Board of County Com'rs of Eddy County, 57 N.M. 145, 255 P.2d 678; Wailes v. Smith, 76 Md. 469, 25 A. 922; Clark v. Ardery, 310 Ky. 836, 222 S.W.2d The order of the lower court dismissing the alternative writ of mandamus is reversed with directions to enter a writ ordering the Commi......
  • Studor, Inc. v. Commonwealth, NO. 2011-CA-000474-MR
    • United States
    • Court of Appeals of Kentucky
    • May 4, 2012
    ...discretion in passing upon the matter before it, but such order should not ordinarily coerce a particular determination." Clark v. Ardery, 310 Ky. 836, 842, 222 S.W.2d 602, 605 (1949). In certain circumstances, mandamus is available to remedy arbitrary and capricious acts of discretion when......
  • Appalachian Racing, LLC v. Commonwealth, 2016-SC-000206-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • December 15, 2016
    ...County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 838 (Ky. App. 1994). 12. 664 S.W.2d 907, 912 (Ky. 1984) (emphasis added). 13. 222 S.W.2d 602, 605-06 (Ky. 1949). 14. See KRS 230.300. 15. Foster v. Goodpaster, 161 S.W.2d 626, 628 (Ky. 1942). 16. See Lexington Retail Beverage Dealers Ass'......

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