Gardner v. Ray

• Decision Date: 20 June 1913
• Citation: 157 S.W. 1147,154 Ky. 509
• Parties: GARDNER v. RAY, Clerk of County Court. [d]
• Court: Kentucky Court of Appeals

157 S.W. 1147

154 Ky. 509

GARDNER v. RAY, Clerk of County Court. ^[d]

Court of Appeals of Kentucky.

June 20, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Separate applications for mandamus by Charles T. Gardner, by George R Ewald, by W. S. Tyler and others, and by Carl J. Johnson and others, against P. S. Ray, Clerk of the Jefferson County Court. Judgment for defendant, and plaintiffs appeal. Appeals of Gardner and Ewald dismissed, and judgment in the other cases affirmed.

Percy N. Booth, Alex. G. Barret, Jno. B. Baskin, R. A. McDowell and William Krieger, all of Louisville, for appellants.

A. Scott Bullitt and J. L. Sullivan, both of Louisville, and M. M. Logan, Asst. Atty. Gen., for appellees.

SETTLE J.

The above four appeals have been considered together, but the judgment in Charles T. Gardner v. P. S. Ray, and that in George R. Ewald v. P. S. Ray (section 27 of the Primary Election Law [Laws 1912, c. 7]), deprives us of the jurisdiction to review. That section was so construed by us in the cases of Paul C. Hager v. E. W. Robinson, and Paul C. Hager v. Jas. V. Turner, etc., 157 S.W. 1138, this day decided; and, as the one opinion in these two cases fully presents the reasons for such construction, it is deemed unnecessary to repeat them here. The two appeals referred to are therefore dismissed. But for the further reasons expressed in the opinion in the Hager Cases, supra, we have jurisdiction of the two remaining appeals (W. S. Tyler, etc., v. P. S. Ray and Carl J. Johnson v. P. S. Ray); and consideration of the questions raised by these appeals convinces us that the action of the circuit court in sustaining a demurrer to each of the petitions was not error. These two cases, and those of Charles T. Gardner v. P. S. Ray and George R. Ewald v. P. S. Ray were heard together by the four judges of the common pleas branch of the Jefferson circuit court. Like the Hager Cases, they attack the constitutionality of the present Primary Election Law, urging the same and additional grounds against its validity. We find in the record an admirably written opinion upon the questions presented and decided, in which the four circuit judges who tried the cases concurred. Though expressing the views entertained by them relative to all the cases they were considering, it is applicable to the only two of the cases before us on appeal, viz., W. S. Tyler, etc., v. P. S. Ray; Carl J. Johnson, etc., v. P. S. Ray. We have adopted and here insert so much of the opinion as we find in accord with the conclusions we have reached. It is as follows:

"In each petition a writ of mandamus is asked against the clerk of the Jefferson county court to compel him to act according to plaintiff's construction of certain provisions of the act of March 5, 1912, providing for nominations by the leading political parties of their candidates for office at primary elections. Charles T. Gardner, desiring to become a candidate at the primary election to be held under the act mentioned on August 2, 1913, for the nomination of the Progressive party for representative from the forty-fourth legislative district, tendered to the clerk of the Jefferson county court, as required by the act, his petition, supported by the requisite nominating papers, asking that his name be placed upon the nominating ballots of that party. The clerk declined to file the petition, on the ground that it showed that Gardner was not qualified under the terms of the act to become a candidate at the primary election of the Progressive party. The petition contains the following statement: 'I am a member of the Progressive political party and affiliated with it and supported its nominees at the last regular election, which was on November 5, 1912. On the ___ day of October, 1912, at the registration next preceding said election, I was fully registered as affiliating with the Democratic party.'

"George R. Ewald tendered to the county clerk his petition to have his name printed on the ballots of the Progressive party as a candidate for that party's nomination for representative from the forty-sixth legislative district. For reasons similar to those which led him to reject Gardner's petition, the county clerk declined to file Ewald's application. Ewald's petition contains the statement 'I am a member of the Progressive political party.'

"C. J. Cunningham tendered a petition that his name be placed upon the nominating ballots of the Democratic party to be voted at the August primary as a candidate for the Democratic nomination for representative from the fifty-first legislative district. His petition was also rejected. It contains the statement: 'I am a member of the Democratic political party, and affiliated with it and supported its nominees at the last election, to wit, November 5, 1912.' He registered as a Republican.

"Carl J. Johnson, Charles I. Groves, and Theodore H. Diehl, who signed the nominating papers of Gardner, have instituted a suit against the county clerk, seeking to compel him to place Gardner's name on the ballots of the Progressive party.

"W. I. Taylor, A. R. Bierbaum, and Jacob Emmetsberger, Jr., who signed the papers of Ewald, have filed a similar suit. In each of these cases the interest of the plaintiffs is that of qualified electors of the Progressive party who desire to vote their choice at the primary. These two suits involve the same questions involved in the actions of Gardner and Ewald, respectively. In each of the five cases the plaintiff has entered a motion for a writ of mandamus against the county clerk; in each case the defendant has demurred generally to the petition; the cases are submitted on the following motions and demurrers.

"With this preliminary, we come to a consideration of the act of 1912, relative to the qualifications of prospective candidates at primary elections and to the petitions by which they must initiate their candidacy. Section 6 provides: 'Any qualified elector who files his petition and the nominating petition of electors as hereinafter provided, and is a member of a political party subject to the provisions of this act, shall have his name printed on the official nominating ballot of his party as a candidate for nomination for any office at any primary held under the provisions of this act. Said petition shall state the name, age, post office address, political affiliations and all other legal qualifications of the candidate, and shall be in substantially the following form.' The form prescribed requires that the petition be addressed to the officer with whom it is required to be filed and 'to the members' of the particular party whose nomination the candidate is seeking. The candidate must fill in the following form: 'I am a member of the ___ political party and affiliated with it and supported its nominees at the last regular election.'

"The 'nominating petition' referred to in the excerpt first made from section 6 cannot be signed by any one who is not a 'qualified elector' and 'member' of the political party whose nomination the candidate for whom he has signed is seeking, and who is not registered if he lives in a precinct where registration is required. 'Signatures contrary to the foregoing provisions,' so closes section 6, 'shall not be counted.' Section 6, therefore, very emphatically confines the right of voters to sign the nominating petitions with which candidates for nomination are required to support their own individual petitions, to those of candidates seeking nominations at the hands of the particular parties of which the signers are respectively qualified electors. So much for the signers.

"As to the candidate, an analysis of section 6 shows that, as a condition precedent to the right to seek nomination by any party required to nominate by primary, one must have the following personal qualifications: (1) He must, at the time he files his petition to become a candidate, be a qualified elector; (2) he must, at the time he files his petition, be a member of a political party; (3) he must have heretofore affiliated with that party of which he is a member at the time of filing his petition; (4) he must have supported the nominees of that party at the last regular election. Any one who measures up to these qualifications, and who complies with the formalities prescribed, is entitled to have his name printed upon the official nominating ballot of 'his party' as a candidate for nomination at a primary election.

"When section 6 speaks of 'qualified electors,' the reference is obviously to electors within the contemplation of the act of which it is a part, and which provides for and governs primary elections at which candidates for office are nominated by the voters of political parties as distinguished from regular elections at which officers are chosen by the whole electorate. It is manifest from even a casual reading of section 6 that the 'qualified elector' who seeks the nomination of any party must be a 'qualified elector' of that party and no other.

"Section 19 of the act enumerates the 'qualifications of electors'; the reference being particularly to those having the right to vote at a primary election. These must possess the qualifications of voters at regular elections. Section 145, Constitution, prescribed the qualifications of voters at regular elections. Section 147 authorizes the Legislature to require registration in certain cities and towns, and declares that 'where registration is required only persons registered shall have the right to vote.' The Legislature has required registration in certain municipalities, including that class of which the city of Louisville is one. Sections 1490 and 1499, Kentucky Statutes, set aside certain days preceding the regular...