Doody v. Bowman

• Decision Date: 09 February 1911
• Citation: 142 Ky. 153,134 S.W. 148
• Parties: DOODY et al. v. BOWMAN et al.
• Court: Kentucky Court of Appeals

134 S.W. 148

142 Ky. 153

DOODY et al. v. BOWMAN et al.

Court of Appeals of Kentucky.

February 9, 1911

Appeal from Circuit Court, Marion County.

Proceedings by B. F. Bowman and others against M. Doody and others to contest a local option election. From a judgment for contestants, contestees appeal. Affirmed.

Finley Shuck and Ben Spalding, for appellants.

Lafe S Pence, H. W. Rives, and Jno. R. Thomas, for appellees.

CARROLL J.

In this local option case the ground of contest was that the order calling the election was made on the same day that the petition was filed. Section 2554, Ky. St. (Russell's St. § 4054), provides that: "Upon application, by written petition, signed by a number of legal voters in each precinct of the territory to be affected, equal to twenty-five per cent, of the votes cast in each of said precincts at the last preceding general election, *** it shall be the duty of the judge of the county court in such county, at the next regular term thereof after receiving said petition, to make an order on his order-book directing an election to be held. ***"

In Wilson v. Hines, 99 Ky. 221, 35 S. W.

627, 37 S.W. 148, 18 Ky. Law Rep. 233, which was also a local option contest, the petition was filed on the same day that the order directing the election to be held was made, and it was held that the order calling the election was unauthorized and void; the court saying: "In our opinion it was intended that the petition should be received in court, and there made a matter of record by the proper order entered on the order book, showing that it has been received and filed and the purpose of it, and that the order for the election should be made at the next regular term of the court thereafter." And this case was followed in Cress v. Commonwealth, 37 S.W. 493, 18 Ky. Law Rep. 633; Smith v. Patton, 103 Ky. 444, 45 S.W. 459, 20 Ky. Law Rep. 165. In Locke v. Commonwealth, 113 Ky. 864, 69 S.W. 763, 24 Ky. Law Rep. 654, the petition was not filed in court at a term preceding the one at which the election was ordered, and the court said: "The petition not having been properly filed, and the county judge having no authority to order the election, it was void." In view of these decisions, it is manifest that, if they are permitted to stand, the election must be held void. Counsel criticise the construction placed on the statute in the cases mentioned but they have been too long adhered to to justify us in departing from the rule announced. The observance of it does not work any hardship or impose any unreasonable duty upon petitioners who desire to call an election. It is just as easy and convenient to file the petition at a regular, or a special, term, as it was held in Smith v. Patton, supra might be done, and have the election ordered at the next regular term, as it is to file the petition on the same day upon which the order calling the election is made.

But counsel insist that the notice given of the contest was not sufficient. The election was held on August 11, 1910, and on August 16th more than 10 persons, citizens of and legal voters in the territory in which the election was held, filed in the office of the county clerk a notice signed by them, stating that "the undersigned citizens and legal voters of the city of Lebanon, Kentucky, in which an election was held on the 11th day of August, 1910, on the question of whether or not intoxicating liquors should be sold in said city, and in which election a majority of the votes as counted by the canvassing board have been counted in favor of the sale of such liquors, now protest against the issuance or recording of any certificate, and contest the result of said pretended election upon the following grounds, viz.: First, because it is shown by the records of the Marion county court that the petition for said election was filed on the 6th day of June, 1910, a regular term of the Marion county court, and on the same day and in the same order the said...