Ewing, County Judge, v. Hays

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtJudge Richardson
Citation257 Ky. 259
Decision Date02 November 1934
PartiesEwing, County Judge, et al. v. Hays et al.
257 Ky. 259
Ewing, County Judge, et al.
v.
Hays et al.
Court of Appeals of Kentucky.
Decided November 2, 1934.

1. Counties; Elections. — County clerk and county election commission are public agencies, and their acts are acts of county and cannot be repudiated by fiscal court so long as they act within limits of statutory authority (Ky. Stats. Supp. 1933, sec. 1482).

2. Elections. — Under statute authorizing employment at county expense of such clerical help in counting ballots as county election commission may deem necessary, number of persons necessary and their compensation is within commissioners' discretion unless contracts of employment amount to financial imposition or are result of fraud or collusion (Ky. Stats. Supp. 1933, sec. 1482).

3. Elections. — Employee of county election commission must know at his peril that it can employ him only for purposes directed by statute and that unless commission strictly complies with statute or if it exceeds statutory authority, its acts are void (Ky. Stats. Supp. 1933, sec. 1482).

4. Statutes. — Statute must be so construed as to effect plain and manifest purpose of Legislature, to ascertain which it is always proper to look to purpose which it had in view in enacting particular statute, and court will give its language practical construction in arriving at intent and purpose of its enactment.

5. Counties. — Fiscal court, in reviewing claims reported by county clerk or county election commission for clerical help in election, acts judicially, and must allow or disallow such claims, not arbitrarily or capriciously, but in exercise of "judicial discretion" which means to do nothing more nor less than what ends of justice demand, or what is just and proper in circumstances (Ky. Stats., sec. 1840; Ky. Stats. Supp. 1933, sec. 1482).

6. Elections. — County election commission held without authority to allow to sheriff claim of $1,706.39 less $10, where his fees for

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services in connection with elections were fixed by statute (Ky. Stats. Supp. 1933, sec. 1482).

7. Elections. — County election commission held without authority to employ guards, sheet writers, certificate writers, door men, sealers, representatives, certificate keepers, receipt takers, book carriers, box carriers, and to pay $100 for clerical work, and hence such employees' claims for compensation were properly disallowed by fiscal court, since employees were required by law to know limitation of commission's authority to engage and promise to pay them (Ky. Stats., sec. 1840; Ky. Stats. Supp. 1933, sec. 1482).

Appeal from Jefferson Circuit Court.

LAWRENCE S. GRAUMAN and STUART E. LAMPE for appellants.

STANLEY GARFEIN and ELWOOD HAMILTON for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.


Reversing.

The practice and procedure by which this appeal reached this court are not approved by us and must not in the future be regarded as a precedent, nor as an example of appropriate and correct proceeding to present questions like or similar to those here involved. Owing to the importance to the general public to have the involved statutes construed to apply in conducting the approaching election, and the parties desiring to have it done on this appeal, we shall consider and interpret these statutes, reserving our opinion on all other questions.

The paramount questions to be considered and determined are the duties of the county court clerk, the authority and duties of the county election commission, and the jurisdiction and duty of the fiscal court under section 1840, Ky. Stats., section 1482 of 1933 Supplement to the present Kentucky Statutes. That portion of section 1482, prescribing the duties of the county clerk, is in this language:

"When the hour of four P.M. has arrived the officers" of the election "shall then go and take charge of the ballot box, at the booth, * * * then stamp upon all unused stubs and ballots, with rubber stamp or by writing on the stub and the ballot attached thereto, the word `unused' and place said stub or ballot book and all other utensils or election material into a linen envelope. * * * The officers of election shall immediately deliver the ballot box, stub book and the envelope containing the unused ballots to the county clerk. * * * Said officers

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shall also upon delivery to the county court clerk of the ballot box and the poll books, certificates and the envelope containing the spoiled, mutilated and questioned ballots and the keys to the ballot box, together with the county election seal. * * * The county court clerk, upon receiving said ballot box and envelope from the election officers shall receipt for the same and shall place said ballot boxes and envelopes in a secure and substantial place and shall keep a sufficient guard over said boxes and envelopes in a careful and painstaking manner until all the ballots have been counted by the election commissioners and those acting with them. * * * The county clerk shall assist the county election commission, and shall act as its clerk, in the counting and certifying of the ballots and the results of said election, for which he shall receive compensation to be allowed by the fiscal court. * * * There shall be provided by the county clerk a large sheet upon which to tabulate the vote of the whole county, district or municipality, so that each candidate can ascertain the number of votes in each precinct and the total number in the election unit, cast for him."

As section 1482 relates to the county election commission, it reads:

"The county election commission, for the purpose of counting the ballots and issuing certificates and making reports, shall meet on the first week-day after any primary or general election at 10 o'clock on said day in the office of the county clerk, and proceed as speedily as practical, to count the ballots of every precinct in such county and at the finish of each and every precinct they shall announce the result at the door of the clerk's office and they shall fill out the blank in the back of the stub book provided for that purpose and each commissioner shall sign the same on a blank provided for that purpose. The election commission is authorized to employ at county expense, such clerical help as said commission may deem necessary to make said count, and shall remain continuously in session, until each and every precinct has been counted and the result ascertained, Sundays and legal holidays excepted. * * * If any ballots are found mutilated, defaced, marked or spoiled or otherwise questionable so that they are of doubtful

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integrity, the commission shall put all such ballots in a sealed envelope after writing on them and each of them, whether they have been counted, and for whom. * * * The said election commission shall issue to successful candidates for office or nominations, their certificates of election or nominations in all county, magisterial districts or any subdivision of any county and shall certify the result of the election in their said county. * * * The county election commission after fifteen days, provided no contest is filed in any race against any candidate, shall return the keys to said ballot boxes to the county court clerk, but if any such contest, either of nominations or elections, has been filed, said commissioners shall hold said keys subject to the orders of the court trying such contest."

This section governs the conducting and counting of ballots, and certifying returns in general and primary elections. It contains this clause:

"Nothing herein contained shall...

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