Elam v. Maggard

• Decision Date: 28 September 1915
• Citation: 165 Ky. 733,178 S.W. 1065
• Parties: ELAM v. MAGGARD.
• Court: Kentucky Court of Appeals

178 S.W. 1065

165 Ky. 733

ELAM v. MAGGARD.

Court of Appeals of Kentucky.

September 28, 1915

Appeal from Circuit Court, Carter County.

Election contest by Noba Elam against John H. Maggard. From an adverse judgment, contestant appeals. Affirmed.

J. G Morris, of Grayson, for appellant.

John M Waugh, of Grayson, for appellee.

HANNAH J.

Appellant Noba Elam, and appellee, John H. Maggard, were at the election of August 1, 1914, opposing candidates for the office of common school trustee, in subdistrict No. 4 educational division No. 4, in Carter county. There were 61 votes cast, of which number 31 were counted for Maggard and 30 for appellant, Elam. A certificate of election having been issued to Maggard, Elam contested the election, challenging the validity of 2 votes. These were cast by Charles Gee and Amanda Gee, his wife. Upon a trial, the petition was dismissed, and from that judgment he appeals.

Gee testified that he was about 37 years of age; had lived in the subdistrict here in question all his life, until March, 1913, at which time he and his wife moved to Olive Hill, a distance of 7 miles, where he and his brother now conduct a blacksmith shop; that when he sold his land in said subdistrict, a short time prior to his removal therefrom, he reserved a small parcel of about an acre for the purpose of building a home upon it when he should return thereto; that he never had any intention of remaining in Olive Hill permanently, nor of staying away from his former home permanently; that at the time he removed therefrom it was, and still is, his fixed purpose to return thereto; that he never at any time voted at any place except in the subdistrict here in question, and in the precinct of which it is a part (it being a different election precinct from the one in which Olive Hill is located). No part of this evidence is contradicted by appellant, but he attempted to refute it by proof that Gee's children had attended school at Olive Hill; that Gee had paid $1.50 school taxes there (on what account it is not shown), and that his children had been enumerated in the Olive Hill district during two years. On the other hand, Gee testified that this enumeration was without his consent and over his protest; that he expressly refused to permit them to be enumerated in that district.

The qualification of a voter in the election of a common school trustee, in respect to residence, as fixed by the statute, is that he or she shall "have resided in a school subdistrict for sixty days before an election." See Kentucky Statutes, section 4426a, subsection 3, and section 4535h. One of the qualifications of a voter in the election of constitutional officers is likewise that he shall...