Combs v. Brock
| Decision Date | 29 September 1931 |
| Citation | 42 S.W.2d 323,240 Ky. 269 |
| Parties | COMBS v. BROCK. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County.
Election contest by A. B. Combs against Hiram M. Brock. From a judgment dismissing his petition, plaintiff appeals.
Reversed with directions.
W. C Eversole, Carl F. Eversole, and S. M. Ward, all of Hazard for appellant.
J. B Wall, of Harlan, for appellee.
At the regular primary election in 1931 the appellant and plaintiff below, A. B. Combs and the appellee and defendant below, Hiram M. Brock, were opposing candidates for the Republican nomination for the office of State Senator from the Thirty-Third senatorial district of Kentucky, which is composed of the counties of Perry, Letcher, Leslie, Clay, and Harlan. The ballots as counted and certified from the four counties of the district, not including Harlan, gave plaintiff a substantial majority; but the same as counted and certified in Harlan county overcame that majority and created one for defendant over plaintiff in the entire district of 6,447 votes. On August 14, 1931, and within the time prescribed by law, plaintiff filed this contest action in the Harlan circuit court against defendant, in which he stated his grounds of contest in five separate paragraphs in his petition, the first of which averred plaintiff's qualifications for the office, his compliance with the law to become a candidate in the primary, the result of the election in each county of the district, and the certification thereof, giving to defendant the large plurality of the votes cast, and then averred that defendant was not entitled to the nomination because he did not receive a majority of the legal votes cast in the primary, but that, on the contrary, plaintiff received a majority of such legal votes and was entitled to the certificate of nomination.
The remaining paragraphs of the petition, excluding No. 4, charged in general language that enough illegal votes were cast in Harlan county for defendant upon numerous grounds of disqualification of such voters, which if deducted from the certified vote of defendant would reduce his total legal votes below the number of legal votes cast for plaintiff as to give the latter a majority of the legal votes cast in the election in that county, thus entitling him to the nomination. But no specific number of such illegally cast ballots in any of the precincts of Harlan county were named in any of such paragraphs, or elsewhere in the petition; nor were any persons named as having cast an illegal ballot. Neither was it averred anywhere in any of those paragraphs the name of any voter in any precinct whose ballot was marked openly on the table so as to violate the secrecy of the ballot and invalidate the vote, nor was any ballot alleged to have been cast by the officers of the election in any precinct in Harlan county, all of whom it was alleged were friends of defendant and that they did deposit some ballots for him without any individual voters appearing, whether qualified to vote or not, and such general allegations, without such requisite specifications, compose the entire substance of all the paragraphs of the petition, wherein a subtraction from or a reduction of the number certified for defendant was sought.
Paragraph No. 4 of the petition averred, in substance, that defendant and his alleged co-conspirators and his friends and workers during the primary campaign and on election day, with defendant's knowledge and consent, spent large sums of money for the purpose of corrupting and bribing voters to cast their ballots for him, and that paragraph, together with the last sentence in paragraph 3, clearly and concisely states that a large number of votes received by defendant in Harlan county were so bribed and purchased, either by himself, or by others with his knowledge and consent, and that in doing so defendant "was guilty of gross violations of what is known as the Corrupt Practices Act," being section 1565b-1 to section 1565b-21, inclusive, of the Kentucky Statutes. In the last sentence of that paragraph it is further averred that the same unlawful conduct, consisting in violations of the Corrupt Practices Act, were engaged in in the other counties of the senatorial district. The intimations contained in some of the other paragraphs of the petition which might be construed into violations of the Corrupt Practices Act were inserted, as the context plainly shows, for the purpose of disqualifying certain voters or groups of voters, because of the actions complained of in the petition, so that the total vote certified for defendant might be reduced by the number of votes so cast and thereby produce a majority of legal votes for plaintiff. They were evidently not made in such paragraphs in reliance on violations of the Corrupt Practices Act as was done in paragraph 4, where the charge is made that the bribery therein referred to was in violation of that statute. The prayer of the petition was in the alternative, i. e., that plaintiff be declared the nominee because of the alleged violations of the statute by defendant and its observance by plaintiff, but also that if it should be found that plaintiff for any reason was not entitled to the nomination that defendant be adjudged not entitled thereto because of such violations by him, and by his friends with his knowledge and consent.
Defendant demurred to the petition as a whole and to each separate paragraph thereof, and without waiving it moved to strike certain allegations therefrom, and, perhaps, other motions, and without waiving any of them filed his answer and counterclaim in which the material averments of the petition as contained in all of its paragraphs were specifically denied; and in the fourth paragraph of the answer defendant charged a violation of the Corrupt Practices Act by plaintiff, in that he had expended in his campaign to procure his nomination more than the statute permitted, and that he and his friends, with his knowledge and consent, bribed votes to be cast for him, and that he thereby was not entitled to the nomination because of such violations. He prayed that he be adjudged to have received the nomination for the Republican candidacy for the office involved and that "plaintiff be adjudged and held to be guilty of violating the Corrupt Practices Act of Kentucky."
Following pleadings made the issues and the court, when the cause was considered for the purpose of disposing of preliminary motions, demurrers, etc., first overruled plaintiff's motion for him to vacate the bench, which was made by plaintiff before answer or any other motion by defendant; and the court then sustained a demurrer to the petition and to each paragraph thereof, and, since it was then too late for plaintiff to amend under the provisions of chapter 50, page 153, of the Session Acts of 1930 (and which was and is an amendment of section 1550-28 of the 1930 Edition of Carroll's Kentucky Statutes), the petition was dismissed, and from that judgment plaintiff prosecutes this appeal.
It will thus be seen that only two questions are presented, and which are: (1) Whether or not the court erred in overruling plaintiff's motion for him to vacate the bench; and (2) whether error was committed in sustaining the demurrer to the petition, and to each paragraph thereof and dismissing it? Those questions will be considered and determined in the order named.
The grounds stated in plaintiff's affidavit and motion to require the judge of the Harlan circuit court to vacate the bench were, in substance: (a) That the judge, as this affiant "is informed and believes," is financially interested in coal mining in Harlan county, as is also true of defendant, and that they are political and personal friends; (b) that some of the coal operators in Harlan county, prior to the primary election involved, formed some sort of league or coalition to elect officers of their choosing, and that they concluded to and did support defendant in the primary election in August, 1931; (c) that the coal miners in Harlan county, or some of them, at the time of and preceding the primary election, were endeavoring to unionize by joining some labor organization and that the operators of the mines were opposed to that, and to prevent its being accomplished, as well as to nominate defendant as the Republican candidate for senator in that district, caused the State Militia to be sent into the territory and the appointment of deputy sheriffs and patrolmen to aid and assist in their purposes, and that such actions produced great bitterness between the two factions, "to such an extent that almost a state of anarchy has prevailed and is now prevailing in that county"; (d) that the judge of the Harlan circuit court was opposed to such anarchistic condition and the causes that produced it, and freely expressed himself as "opposed to what he terms 'radicals and communists"'; and that because the miners or the great majority of them had declared in favor of plaintiff as the nominee in the primary election, the judge was therefore disqualified to impartially try the case. It was also further averred in the affidavit (e), that the friends of plaintiff before the election and in advocating his candidacy declared themselves in favor of the contention of the miners (whatever it may have been) and were friendly to their cause, and that in speeches by them in behalf of plaintiff they may have referred to the presiding judge as entertaining opposite sentiments and referred to him in derogatory terms. It was also stated in the affidavit (f) that plaintiff had referred in his petition to the judge as being one of the conspirators to bring about plaintiff's defeat, but he made no such charge in his affidavit, nor did he...
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