Cowan v. Prowse

• Decision Date: 05 May 1892
• Citation: 19 S.W. 407,93 Ky. 156
• Parties: Cowan v. Prowse.
• Court: Kentucky Court of Appeals

19 S.W. 407

93 Ky. 156

Cowan v. Prowse.

Court of Appeals of Kentucky.

May 5, 1892

Appeal from circuit court, Christian county.

"To be officially reported."

Action by William Cowan against James P. Prowse. Judgment for defendant. Plaintiff appeals. Affirmed.

Where a vote cast for a candidate was recorded for his opponent though the evidence in such case was entirely satisfactory that a mistake was made, it did not necessarily follow that the mistake was made by the clerk, the question as to whether such mistake was made by the clerk or the voter himself in calling the name of the candidate being a question of fact and, if the mistake was that of the voter, the record should not be changed.

Exception was taken to the registration of some voters on the ground that they registered after the time of day prescribed by law and to others on the ground that their votes were cast and recorded later on the day of election than provided by law. Held, that the testimony on a question of time being uncertain, especially when reckoned by minutes, the court should not take cognizance of such matters, in the absence of a flagrant disregard of the law by the officers.

In a contested election case, the judgment of the chancellor in accordance with the decision reached by the election board if supported by sufficient evidence, will not be reversed.

Joe McCarroll, for appellant.

J. I. Landes, James Breathitt, and Harry Ferguson, for appellee.

LEWIS J.

The question in this case is whether appellant, Cowan, or appellee, Prowse, was legally elected clerk of the Christian county court at the August election, 1890. According to face of the poll books, the latter received a majority of votes cast, obtained a certificate of election, and took possession of the office. But the contesting board decided that 92 of 3,215 votes recorded for him were illegal, while 73 of 3,210 votes recorded for Cowan were illegal, and, as a result, the latter had received a majority of legal votes cast, and was duly elected to the office. Upon appeal to the circuit court, however, that decision was reversed, the judgment being that Prowse had received of the legal votes cast a majority of 1, and was entitled to the office. It appears that in the notice of contest and also in the response and counter notice, the legality of numerous votes recorded was put in question upon grounds stated by the parties, respectively, and a large number of depositions taken and read before the contesting board, the decision of which was not made until January 21, 1891. And a preliminary question thus arises whether depositions taken after that decision was rendered, but before the ensuing term of the circuit court, to which each party excepted, were properly excluded on trial of the appeal. Under section 4, art. 7, c. 33, Gen. St., the judge of the county court and two justices of the peace nearest the court house constitute a board for determining contested election of an officer elective by voters of a county or district therein. Section 6 gives to any person in interest right of appeal from a decision of the board to the circuit court, and from thence to the court of appeals, as in other cases. Section 7 is as follows: "A copy of the decision, and the original papers and depositions used in the contest, shall be filed by the board in the circuit court. The proof shall be taken in depositions, and no oral evidence shall be heard on the trial of the appeal." And section 9 provides that "the appeal shall be placed on the equity docket, and tried in equity as other actions." In the same article a board is provided for to determine contested election of any officer, other than governor or lieutenant governor, elective by votes of the whole state, or a judicial district thereof. But substantially the same mode of proceeding is provided for both boards. By subsection 4, § 5, depositions, properly taken, are required to be read in evidence by each; and a fair implication from the language then used is that neither can call for or hear other proof.

There is, however, an important difference in the provisions applicable to the two boards, in that an appeal is allowed from a decision of the county board only; and hence the special provision in section 7, that "the proof must be taken in depositions, and no oral evidence shall be heard on trial of the appeal." But it does not seem to us it was thereby intended to authorize depositions to be taken at the will of the parties after final decision of the contesting board for, clearly, the legislature did not contemplate those used by the board, and in express terms of that section required to be filed in the circuit court, would be arbitrarily discarded, and the parties thus needlessly forced to prepare anew for trial of the appeal. Subsection 1, § 5, in terms restricts a contestant to the grounds of contest stated in his original notice; yet ample time is allowed in which to sustain them by proof and depositions, before trial by the contesting board; and, although the statute does not expressly require it, still it is not only plainly just, but was manifestly intended, that, if the incumbent files a response relying upon other grounds to defeat the contestant than his prima facie right to the office, which was done in this case, he must specifically state them, and be likewise restricted; for subsection 3 authorizes him, as well as the contestant, to proceed to take proof in depositions immediately after notice of contest. As those issues of fact not subject to change are made up, and all proof either party has chosen to make is before the contesting board, when its decision is rendered, there is no reason why an appeal from it should not, without further preparation, stand for trial at the first term of the circuit court. To keep the case open would enable one party to put the other to unreasonable trouble and cost, and also protract indefinitely a contest it is the public interest and distinctly indicated policy of the statute to terminate as clearly as practicable. Section 726, Civil Code, relates exclusively to appeals from judgments of certain courts of inferior jurisdiction, and, as evidence heard on trial of an action in such court is oral, an appeal therefrom is properly required to be "docketed and stand for trial" in the circuit court as an ordinary action, and has necessarily to be "tried anew, as if no judgment had been rendered." But that section has no application, even by analogy, to an appeal from the decision of a contesting board on a trial before which, as well as on trial of an appeal therefrom, evidence taken in depositions only can be heard. The circuit court might grant leave to either party to supply material and necessary proof that the contesting board had erroneously denied a reasonable opportunity to procure; but the depositions in question, not being so taken, were properly excluded.

1. The lower court adjudged recorded votes illegal, as follows: (1) 40 for Prowse and 32 for Cowan cast out of districts in which the voters severally resided; (2) 4 for Prowse and 3 for Cowan of persons nonresident of the state or not resident long enough; (3) 1 for Prowse and 3 for Cowan of minors; (4) 4 for Cowan of nonresidents of the state; (5) 1 for Prowse,-failure to register; (6) 5 for Prowse and 1 for Cowan of persons convicted of crimes; (7) 4 for Cowan of persons of foreign birth not naturalized,-making an aggregate of 51 illegal votes of those classes cast for Prowse, and 47 for Cowan. Exceptions were taken by the parties, respectively, as to many of the votes so adjudged illegal, and also on account on refusal of the court to exclude many others challenged upon similar grounds. But, as no question of law is involved in any of the very large number of such cases, except as hereafter indicated, and there is evidence conducing to support the finding of fact by the court as to each of them, we think it should not be disturbed by this court, especially as it agrees with the finding of the contesting board, except as to two votes, whereby the parties we alike affected.

2. The contesting board found two votes recorded for Prowse illegal because the voters had not registered as required by "An act to provide for the registration of voters in county of Christian," approved April 16, 1890, and three others for him illegal, because fraudulently registered. The constitutionality of such statute is not an open question in this state; it having been expressly held in Com. v. McClelland, 83 Ky. 686, that legislative power exists to enact a registration law either local or general in its operation, and counsel do not indicate any provision in that act by which conditions unreasonable or illegal in any respect were imposed upon those having the right to vote at the election held in Christian county, August, 1890. But the court properly adjudged but one of the votes referred to illegal upon the ground that the voter had failed to register. And even if the other three had, contrary to the court's finding, fraudulently procured certificates of registration, their votes would not have been necessarily invalid, if they were in all other respects legal voters, about which there seems to be no question; for under the statute, if a person who is entitled to vote obtains a certificate of registration and has his vote duly recorded, it is legal, provision being made for punishing him by imprisonment, not by disfranchisement, if he fraudulently procures such certificate. Exception was taken to the decision as to one vote recorded for Cowan upon the ground that he had not registered at all, and to three others who registered at one voting place and voted at another in the same precinct or district. Whether the first-mentioned person...