Hager v. Robinson

• Decision Date: 20 June 1913
• Parties: HAGER, Clerk of County Court, v. ROBINSON. d SAME v. TURNER et al.
• Court: Kentucky Court of Appeals

157 S.W. 1138

154 Ky. 489

HAGER, Clerk of County Court, v. ROBINSON. d

SAME v. TURNER et al.

Court of Appeals of Kentucky.

June 20, 1913

Appeal from Circuit Court, Johnson County.

Two suits by E. W. Robinson and James W. Turner and others respectively, against Paul C. Hager, Clerk of Johnson County Court, to compel him by mandamus to receive and file certain primary election petitions. From a judgment in each case overruling a demurrer to the petition, defendant appeals. Appeal in the action by Robinson dismissed. Judgment in the action by Turner and others reversed, and cause remanded with directions to dismiss.

D. J Wheeler, of Paintsville, and M. M. Logan, Asst. Atty Gen., for appellant.

Robt. H. Winn, of Mt. Sterling, George Du Relle and H. W. Batson, both of Louisville, and M. C. Kirk, of Paintsville, for appellees.

SETTLE J.

These cases were orally argued at the same time and were together submitted for decision. On the 15th day of May, 1913, the appellee E. W. Robinson, desiring to become a candidate for the Republican nomination for the office of assessor of Johnson county at the primary election to be held in that county August 2d, 1913, tendered to the appellant, Paul C. Hager, clerk of the Johnson county court, and offered to file in his office a petition setting forth his qualifications for that office, and requesting appellant as such clerk to cause his name to be printed on the official nominating ballot of the Republican party as a candidate for the nomination for the office of assessor to be voted for at such primary election.

The petition is as follows: "Petition for Assessor of Johnson County. To Paul C. Hager, County Clerk Johnson County, Kentucky, and to the Members of the Republican Party of Johnson County, Kentucky: I, E. W. Robinson, reside at Paintsville, Johnson county, Kentucky. I am a member of the Republican party, and I am forty-nine years of age and possess all the other legal qualifications necessary to entitle me to hold the office of assessor of said county, to wit: I am above the age of twenty-four (24) years, a citizen of Paintsville, Johnson county, Kentucky, and have resided in said county and state for more than two years and more than one year next preceding the primary election to be held in Johnson county for the year 1913, in which I am a candidate for the office of county assessor. If I am nominated for said office of assessor at the primary election to be held on the first Saturday in August next, I will accept the nomination and will not withdraw, and, if elected, will qualify as such officer. Dated at Paintsville, on this the 15th day of May, 1913. E. W. Robinson." Tendered with the above petition, and at the same time offered to be filed, were four other petitions, each from a different voting precinct of Johnson county, and each signed by numerous electors of the precinct from which it came, representing altogether more than 3 per cent., and not less than 10 per cent., of the total vote of the Republican party in Johnson county cast for presidential electors at the last election for President of the United States. As the four petitions were worded alike only one of them is here copied: "We, the undersigned qualified electors of Paintsville No. 2 precinct, Johnson county, state of Kentucky, and members of the Republican party, hereby nominate E. W. Robinson, who resides at Paintsville, county of Johnson, as a candidate for the office of assessor at the primary to be held the first Saturday in August, 1913, as representing the principles of said party; and we declare that we intend to support the candidate herein named." Signed by James W. Turner and fourteen others.

It will be observed that the petition of the appellee Robinson contains all the statements prescribed by section 6, c. 7, Acts Gen. Assem. 1912, entitled, "An act to provide for the nomination of candidates by political parties at primary elections, and for placing the names of candidates on the ballots to be voted for at general elections and prescribing penalties for the violation thereof," (approved March 5, 1912), except that it omits to state that the appellee Robinson affiliated with the Republican party and supported its nominees at the last regular election, for which reason appellant, as clerk, refused to receive or file the petition, or those of the electors, or to place the name of the appellee Robinson on the ballots to be voted for as a Republican candidate for the nomination for assessor at the primary election to be held on the first Saturday in August, 1913.

Following this refusal these actions were brought, the one by the appellee Robinson and the other by the appellees James W. Turner and others, in their own behalf and for other signers of the elector's petitions, too numerous to be made parties, praying that appellant, as clerk, be compelled by mandamus to receive and file the petitions in question and proceed to place the name of the appellee Robinson on the official ballot of the Republican party at the August primary as a candidate for the Republican nomination for the office of assessor of Johnson county. When the cases came on for hearing appellant filed a demurrer to each of the petitions, which the circuit court overruled. Appellant refused to plead further, and judgment was thereupon entered in each case awarding the mandamus prayed. From those judgments these appeals are prosecuted.

It was contended by the Assistant Attorney General in argument that section 27 of the Primary Election Act deprives this court of jurisdiction to entertain these appeals. That section is as follows: "Whenever it shall be made to appear by affidavit filed in the circuit court, that an error or omission has occurred or is about to occur in the placing of any name on an official primary ballot, or that an error or wrong has been committed or is about to be committed in printing such ballot, or in the performance of any duty imposed by this act, the court shall order the officer or person charged with such error, wrong or neglect, forthwith to correct the error, desist from the wrongful act or perform the duty, or show cause why he should not be compelled to do so. Failure to obey the orders of the judge or court shall be contempt of court and punishable as such. If the circuit court be not in session in the county the circuit judge shall hear and determine the complaint in vacation, unless he be absent from the county, in which case said affidavit shall be filed before the judge of the county court who shall have full power to hear and determine the complaint and make appropriate orders therein. The orders of a court or judge under this section shall be final and not appealable. Only candidates may institute proceedings under this section. In case a charge under this section is directed against the Secretary of State or any other state officer, the affidavit shall be filed in the Franklin circuit court."

It will be observed that "only candidates may institute proceedings under this section"; if they do so, and the relief asked for is denied by the court or judge, the orders or judgment of the court or judge determining the matter "shall be final and not appealable." In other words, this section compels the candidate to have determined, by the method of procedure therein declared, whether a wrong has been done him in refusing his name a place on his party's ballot in the primary, yet refuses him, or the alleged wrongdoer, the right of appeal, however much either may be dissatisfied with the judgment rendered by the court or judge. To say that this is unwise, not to say unjust, legislation does not make it unconstitutional or even unreasonable, as the right of appeal is not an inherent or constitutional right, but a right which the Legislature may in its discretion confer or withhold. Turner v. Commonwealth, 89 Ky. 78, 1 S.W. 475; ^[1] Vinegar v. Commonwealth, 104 Ky. 106, 46 S.W. 510, 20 Ky. Law Rep. 412. When conferred it is usually coupled with conditions which must be observed, in order that the appellate court may have jurisdiction to entertain the appeal.

The remedy provided by section 27 is not merely cumulative, as argued by counsel for appellees, which, if true, would allow the candidate to elect between it and the remedy of mandamus allowed by section 474, Civil Code, but it is an exclusive remedy, for it is a well-known rule of law that when a statute has created a right and provided a remedy for the enforcement of that right, the claimant of such right must pursue the remedy the statute prescribes, to the exclusion of all other remedies. Grigsby, etc., v. Barr, etc., 14 Bush, 330; Russell, etc., v. Muldraugh's Hill, etc., Turnpike Road Co., 76 Ky. (13 Bush) 307; Kidder v. Boom Co., 24 Pa. 196; Smith v. Drew, 5 Mass. 516.

Nor do we agree with the contention of appellee's counsel that section 27 is obnoxious to section 59, subsec. 29, or section 60, Const. It is not special or class legislation. While it does confer upon candidates, as a class, a right and remedy not conferred upon any other class of citizens, both apply to all candidates alike, and are not necessary to any other class of citizens. It was evidently the Legislature's intention that the candidates should be compensated for the deprivation of the right of appeal by the speedy effect of the remedy. However, the fact that a statute which creates a new right or remedy expressly disallows an appeal is not class or special legislation within the inhibitions of the Constitution; the right of appeal not being an inherent or constitutional right.

We can well apprehend and deplore the possibilities of disaster to the rights, both of candidates and voters, that may flow from the committal into so many different judicial hands,...