Davis v. Henderson

• Decision Date: 31 October 1907
• Parties: DAVIS, COUNTY JUDGE, v. HENDERSON ET AL.
• Court: Kentucky Court of Appeals

104 S.W. 1009

127 Ky. 13

DAVIS, COUNTY JUDGE, v. HENDERSON ET AL.

Court of Appeals of Kentucky.

October 31, 1907

Appeal from Circuit Court, Boyd County.

"To be officially reported."

Mandamus on petition of A. T. Henderson and others against R. D Davis, county judge of Boyd county. From an order overruling a demurrer to the petition as amended, defendant appeals. Reversed.

S. S Willis, L. F. Zerfoss, and E. B. Hager, for appellant.

R. S Dinkle, Watt M. Prichard, and Osmond F. Byron, for appellees.

CLAY C.

The Fifth magisterial district of Boyd county is composed of seven election precincts, five of which are within the corporate limits of the city of Ashland and embrace one-half of that city. Ashland is a city of the fourth class. The appellees filed a written petition with the county judge of Boyd county on the 25th day of February, and during the regular term of the Boyd county court, for the purpose of obtaining an order for an election in the Fifth magisterial district to determine whether or not spirituous, vinous, or malt liquors should be sold, bartered or loaned therein. This petition was signed by a number of voters equal to 25 per cent. of the votes cast in each of the said precincts at the preceding congressional election. At the next regular term of the Boyd county court, the regular judge was sick, and A. W Starlin, one of the magistrates of said county, convened court and adjourned the hearing of the said petition until the following Thursday, at which time the regular judge was present and heard the application for said election. When the application came on for hearing, ten persons who had signed the petition came into court and filed a written statement requesting the withdrawal of their names from the petition. Six of the petitioners resided in precinct No. 12 in Ashland, and after their withdrawal from the petition the number of signers was not equal to 25 per cent. of the number of votes cast in that precinct at the preceding general election. There still remained, however, 25 per cent. of the voters of the entire district to be affected. Thereupon the county judge entered an order refusing to order an election. Thereupon the petitioners instituted this action in the Boyd circuit court for a writ of mandamus against the county judge, directing and compelling him to order an election In their petition and amended petitions, they set up substantially the foregoing facts. A demurrer to the petition as amended was overruled. Appellant then filed an answer, in which he stated that the matter came before him as judge, and he believed he had discretion as to whether or not he would permit the withdrawal of the names, and that he exercised such discretion according to his best judgment and in good faith. The answer also presents the further question: Which election should control, the election of 1906 for members of Congress alone, or the election of November, 1905, for state, county, district, and city officers? If the latter should control, there was less than 25 per cent. of the voters in each precinct signing the petition, even before any names had been withdrawn. To this answer appellees filed a demurrer. The case was then submitted, and the court entered judgment sustaining appellees' demurrer to appellant's answer, and awarding the writ of mandamus. From that judgment the county judge prosecutes this appeal.

The first question presented for our consideration is: Has a person who has signed a petition for a local option election the right to withdraw his name before the petition is acted upon? In the state of Ohio, where the power of ordering an election is vested in the city councils of certain municipalities, the Supreme Court, in Dutten v. Town of Hanover, 42 Ohio St. 215, laid down the following rule "While such petition is under consideration, and before action thereon by the council, signers thereof may withdraw their names from such petition, and, if thereby the number of names is reduced below the requisite number, it is the duty of the council to refuse to order such election." The right of voters to withdraw their names from a petition for the granting of a license was sustained by this court in Simpson v. Commonwealth, 97 S.W. 404, 30 Ky. Law Rep. 132, wherein the court said: "It is true that ten of this number had previously petitioned the court to grant the license, but they had the right to change their minds and oppose the granting of the license, if they saw fit to do so, and the county judge was in error when he refused to consider their names upon the petition. He had no right to deny them the privilege of coming into court and stating to him that, although th...