Cole v. Ridings

• Decision Date: 17 December 1937
• Citation: 271 Ky. 158
• Parties: Cole v. Ridings et al.
• Court: United States State Supreme Court — District of Kentucky

271 Ky. 158

Cole v. Ridings et al.

Court of Appeals of Kentucky.

December 17, 1937.

1. Elections. — The circuit court has no jurisdiction of an election contest involving title to office of councilman in a city of the fourth class, but power to determine eligibility and election of such members is in the other members of the newly elected board holding uncontested title to office, and comprising a quorum (Ky. Stats., secs. 1596a-5, 1596a-12, 1596a-17, 2740, 3485, 3486).

2. Elections. — The circuit court's lack of jurisdiction to hear and determine a contest proceeding involving the office of councilman in cities of the fourth class extends to taking any steps looking to or in furtherance of such a contest (Ky. Stats., secs. 1596a-5, 1596a-12, 1596a-17, 2740, 3485, 3486).

3. Elections. — The courts have no inherent power to determine election contests but such power is solely statutory.

4. Appeal and Error. — A judgment dismissing a petition will be affirmed where the court below was without jurisdiction to determine the question presented, although dismissal below was based on different grounds.

5. Elections. — Judgment affirming dismissal of election contest petition for lack of circuit court's jurisdiction will be entered without prejudice to institute a contest before the proper tribunal, provided such right exists by reason of applicable law.

Appeal from Bell Circuit Court.

FLOYD TAYLOR and GOLDEN & LAY for appellant.

N.R. PATTERSON and LOGAN E. PATTERSON for appellees.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

Appellant was an independent candidate for the office of councilman of the city of Pineville at the regular election of November 2, 1937. Upon a canvass of the votes the election commissioners certified (we assume to the proper authorities) that appellant had received 197 votes for the office sought, and that two other persons, candidates on the Republican ticket, had received a greater number of votes, the one next highest to appellant having been credited with 202 votes.

On November 11, 1937, appellant by his petition filed in the Bell circuit court, making the election commission and all candidates for councilmen defendants, sought a recount of the ballots and prayed that the court, if upon recount it be ascertained that appellant was shown to have received a sufficient number of votes, declare him elected. Appellant executed an acceptable bond, as is required of one seeking a recount. Ky. Stats., sec. 1596a-12. On November 13th the court ordered and directed that a recount be had, and further, that the ballot boxes in wards 1-A and 4-D, from which ward appellant was seeking election, "be immediately turned over to the circuit court clerk, and by him securely kept until the 19th day of November," when a recount of the vote in the named wards would be had.

When the parties appeared on November 19, a question was raised as to the integrity of the ballots. It appears that for some reason the order of the court of November 13, requiring the ballots to be turned over by the county court clerk to the circuit clerk, and by the latter preserved, was not carried out. The ballots were not so transferred until three or four days later. We need not discuss this phase of the case, further than to say that the failure to observe the foregoing order seems to have precipitated the challenge of the integrity of the ballots.

On hearing proof the court decided that the burden of establishing the purity of the ballots rested on appellant, and determined that he had failed to satisfactorily establish their integrity. The court refused a recount and ordered the petition dismissed. In his order it appears that the court assumed that, in so far as his jurisdiction permitted, he could do no more than direct and supervise the recount, notwithstanding the appellant sought to have the court determine, if warranted by the recount, that he was duly elected.

If the court took the view that he could not determine the matter of contest, he was correct, as will later appear. However, we have concluded that since he was without power to determine the contest, he was likewise without power to take any step in or leading up to the proposed contest. This follows because the Legislature has seen fit to confer jurisdiction in certain council-manic election contests upon another forum.

Section 1596a-12, Ky. Stats., controls the matter of contests and the recount of ballots by circuit courts, except as provided in section 1596a-17, contests of elections on public questions. The first-named section provides the method of procedure where contest is proposed in elections for certain named state offices, and all other state officers, as well as those in county, or district less than county officers, excepting from its provisions elections for members of the General Assembly. With regard to municipal offices and officers, the section provides the method of contest in the offices of "any police judge, clerk, marshal, or other elective municipal officer, where there is no other provision by law for determining the contested election of such municipal officer."

This section, in the latter part thereof, sets up the procedure whereby "either party" within a specified period may seek and have a recount of the ballots, upon executing a required bond, whereupon the court may take steps to preserve the integrity of the ballot, and fix a time for and hold a recount. All these things seem to have been carried out in ...