Erwin v. Benton

• Decision Date: 18 May 1905
• Citation: 120 Ky. 536,87 S.W. 291
• Parties: ERWIN et al. v. BENTON et al.
• Court: Kentucky Court of Appeals

87 S.W. 291

120 Ky. 536

ERWIN et al. v. BENTON et al.

Court of Appeals of Kentucky.

May 18, 1905

Appeal from Circuit Court, McLean County.

"To be officially reported."

Local option election contest by C. P. Erwin and others against J W. Benton and others. From a judgment of the circuit court reversing order of contest board, contestants appeal. Affirmed.

W. S Pryor, David H. Kincheloe, and Sweeney, Ellis & Sweeney, for appellants.

Joe H Miller and Little & Taylor, for appellees.

O'REAR J.

This appeal presents a contest of the local option election held in the town of Calhoun on June 8, 1904. The election was regularly called, and was held at the time and places indicated in the call. The result showed an apparent majority of two in favor of prohibition. Certain electors instituted a contest under the statute, which came on to be heard by the contest board, composed of the county judge and the two nearest qualified justices of the peace. The contest board, considering the evidence, decided that there was no election. Consequently the result as certified by the board of canvassers was set aside. On appeal to the circuit court it was decided that the election was valid, and that the proposition submitted, viz., whether spirituous, vinous, and malt liquors should be sold in the town of Calhoun, had carried by a majority of two. It is from the last-named judgment that this appeal is prosecuted.

The first question presented is whether the order entered by the contest board was such a final order as admitted of an appeal from it to the circuit court. The order reads as follows: "The undersigned board of contest, sitting in the above-styled proceeding, is unable to find from the evidence that a majority of the legal votes cast at the election in the town of Calhoun on the 8th day of June, 1904, were cast either in favor of or against the proposition 'whether spirituous, vinous, or malt liquors shall be sold, bartered, or loaned in said town.' Therefore it is ordered and adjudged that the return made by the board of canvassers in the matter of said election be, and it is, set aside, canceled, and held for naught; and it is further ordered and adjudged that there was no election, and that neither party is entitled to have any fact certified concerning said election. And it is further ordered and adjudged by the board that the foregoing order and finding be spread upon the order book of the McLean county court." In this contest the parties may be deemed those electors who favored and those who opposed the proposition submitted. By the certificate the result was that prohibition was established in the town. By the action of the county board this status was changed. The proposition, instead of being defeated, was left as it was before, which was that such liquors might be lawfully sold. The judgment was final, and, in view of the conclusion at which the board had arrived, was the only one possible. Being final in fact, as well as in depriving one set of litigants of that which they before had, it was a final order or judgment, so that an appeal would lie from it under the statute (section 2567, Ky. St. 1903) to the circuit court.

On the appeal to the circuit court an objection was made to the regular judge by affidavit. He declined to vacate the bench. The sufficiency of that affidavit is raised by his ruling. The wording of the affidavit is as follows: "The appellees, who were the contestants before the board of contest, from whose judgment this appeal was prosecuted, in no wise questioning the integrity of the Honorable T. F. Birkhead, the regular judge of this court, and without imputing or intending to impute to him any personal hostility to appellees, say he cannot and will not afford them a fair and impartial trial of the matters of law and facts involved in this appeal. The said Birkhead, regular judge of this court, is opposed to the sale and traffic in such liquors to the extent that he has a pronounced bias against it. They believe, and on such belief state, that the bias of the regular judge of this court against the licensed traffic in spirituous, vinous, and malt liquors is so pronounced that he cannot and will not afford them a fair and impartial trial. The principal, if not the only, question involved on this appeal, relates to the validity of an alleged election held in the town of Calhoun on the 8th day of June, 1904, on the proposition as to whether or not spirituous, vinous, or malt liquors shall be sold in said town, They believe and state that the regular judge of this court entertains a bias against the grounds of contest relied on by appellees, and that same is so pronounced that he cannot and will not afford them a fair and impartial trial of the matters of fact and law involved in this proceeding on this appeal. The affiants, who are appellees on this appeal, say they believe the statements in the foregoing affidavit are true." No fact is stated showing or indicating the bias complained of. Bias of mind is, until demonstrated by act, purely a mental state. Incapable of being proved or disproved with any degree of certainty, the allegation of bias unaccompanied by facts indicating it, may be easily made. If the mere allegation in the objecting affidavit were sufficient, then it were possible always to remove a trial judge upon the mere charge of a litigant, without his hazarding anything if his statements should be true. The opinion in Powers v. Commonwealth, 114 Ky. 237, 70 S.W. 644, 1050, 71 S.W. 494, is relied on. But the state of the record presented here falls far and fatally short of the rule announced in that case, and gathered from Insurance Co. v. Landram, 88 Ky. 434, 11 S.W. 367, 592, Vance v. Field, 89 Ky. 178, 12 S.W. 190, and Massie v. Commonwealth, 93 Ky. 588, 20 S.W. 704. It was distinctly held that difference in political belief alone on the part of the judge and a litigant would not disqualify the judge from trying a cause in his court. In the case at bar it is expressly stated that the judge was not personally hostile to or biased against the litigants. It is admitted that his official integrity was unquestioned. It is not charged that by any act or word had he indicated any bias against appellants or their case. The objection rests solely upon the asseveration that the judge is biased against the liquor traffic. If the liquor traffic is an evil (as many believe it is), if violation of the Sabbath by doing secular work is an evil (as many regard it), if combinations of capital to crush competition in the utilities of life is an evil (as is supposed by a majority of people, probably), a judge who regarded these things unfavorably would be disqualified to try a case wherein any of them was involved if appellants' position is right. And, to carry the same argument forward, a judge biased against crime would be unfitted to try criminals. The law is administered not by the personal predilection of the judge, but by the application of known and accepted rules or principles to the facts of the controversy. Very rarely it must happen that the judge's personal views can properly enter, or do they enter, into the adjudication of the matter before him. For he delivers not his judgment, but the laws. If it be conceded that he is enlightened in the law, upright in character, and disinterested personally in the result of a litigation, his individual views can be of but little, if any, weight in the matter. It is inconceivable that a man qualified to act as a judge of a circuit court can have formed no opinion regarding many, if not most, of the moral and economic questions which have engaged public attention for many years. It would be an astounding proposition if it were true that judges with personal opinions on such questions were disqualified to act in cases where the law as written is to be applied where those matters became involved. To admit the premise it seems to us is to abdicate the right of popular government. There is no reported case in this state that holds, nor has it ever been held under any statute, that a mere charge of bias or hostility against the judge will disqualify him from sitting on the trial of a case. Facts which, if true, would probably operate to prevent his giving a fair trial, must be alleged. The affidavit in this case is wholly lacking in this particular.

There are a number of objections urged against the validity of the election, as well as against the validity of certain voters who participated in it, upon the decision of which this case does, and similar cases may, depend. We will notice them in order.

The officers of election who held this election were appointed by the election commissioners of McLean county. There is no question made that they did not possess all the statutory qualifications. Their conduct of the election appears to have been as nearly in conformity to the statute as is customary. Indeed, no complaint is made of them. But it is urged that the county election commissioners had not the right to appoint them, or others, to hold this election; that the officers appointed for those precincts for the preceding November election continued in office as precinct election officers for "one year, and until their successors were chosen and qualified." Section 1596a, subsec. 3, Ky. St 1903. Until the extraordinary session of the Legislature in 1900, election officers were removable by the appointing power at any time. Such, at least, was the practice in the practical construction of the statutes. Abuses of the system having led to widespread dissatisfaction, the law governing elections was so amended as to prevent, it was believed, arbitrary substitutions designed for purposes of giving undue advantage to one party over the other. Section 1596a, subsec. 3,...