Harrison v. Stroud

• Decision Date: 29 May 1908
• Citation: 129 Ky. 193
• Parties: Harrison v. Stroud.
• Court: Kentucky Court of Appeals

Page 193

129 Ky. 193

Harrison v. Stroud.

Court of Appeals of Kentucky.

May 29, 1908.

Appeal from Grant Circuit Court.

J. W. CAMMACK, Circuit Judge.

From the judgment contestee appeals. — Reversed.

A. G. DEGARNETTE, M. D. GRAY, E. K. WILSON and W. E. CLAY for appellant.

CLORE, DICKERSON & CLAYTON, C. H. BEASLEY & OVERTON S. HOGAN for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE O'REAR — Reversing.

Appellant and appellee were rival candidates for the office of marshal of Williamstown (a sixth class city), voted for at the November election of 1907, to fill a vacancy in that office. The officers of the election, as well as the county canvassing board, certified that appellant had received 95 votes and appellee 94 votes at that election. Appellant was consequently awarded the certificate of election, and executed the bond and took the oath required by law. Within 10 days after the election appellee instituted this contest in the Grant circuit court. He charged that the election was irregularly conducted in a number of particulars. He charged especially that the polls were not opened on time, but that the voting was delayed because the officers of election present, to gain an undue advantage in the matter, refused to appoint any one of several eligible persons present as sheriff of the election nominated by appellant (the person originally appointed to that place being a partisan of appellant, but refusing for business reason to serve); that the election was held in a room with a glass front fronting directly upon the street, where a great number of interested and curious persons were congregated, and throughout the day witnessed the voting and used the intelligence so obtained in settling with floaters who it was charged voted openly upon the table in plain view of the spectators and the officers of election; that whisky and money were freely used by appellant and his partisans in influencing the result of the election; that some 50 or 60 persons out of a total of less than 200 voters were allowed to expose their ballots by voting or marking them openly upon the table in plain view of the election officers and others, and without having been examined under oath or otherwise as to their disability to understand or mark their ballots as required by statute; that as many as eight who were named in the petition had so voted for appellant, and as many as 20 more not named also voted for him in the same manner; that the officers of election had wrongfully counted one ballot for contestee which was marked by the voter fraudulently with a distinguishing mark, and had refused to count one ballot for contestant which was voted for him and so marked; that a number of persons not legal voters had voted for contestee. The prayer of the petition was to have the returns purged of the illegal votes charged above, if that were possible, and that contestant be adjudged to have been elected; or, if that could not have been done, that the election be declared void. Another feature of the petition will be noticed in its appropriate place further along. The answer denied the most of the allegations of irregular proceedings in the election, but it expressly admitted that of the eight persons named in the petition as having voted for contestee openly, and not by secret ballot, seven had so voted, but alleged that the other voters had voted for contestant. The answer then charged that some eight or ten persons, naming them, had been suffered by the election officers to vote openly (i. e., by marking their ballots in public and thereby disclosing their votes) for contestant, and many more not named had voted the same way. Issue was joined by the reply. The proof shows that as many as eight persons voted openly for contestant, and as many as nine so voted for contestee. All these 17 votes were legal voters. Some of them were aged men and of unquestioned probity. Some whose characters are not at all brought in question, and about whose ability to have properly and legally marked their ballots no suggestion is made, were permitted to vote openly, whether in ignorance or by design of the election officers is not sufficiently disclosed. Some so voted, we think, from the motive to purposely disclose how they had voted so that others might act on that knowledge. In addition to the 17 named, there is evidence that probably as many as 40 others, whose names are claimed by the officers and other witnesses to be forgotten, voted similarly. Two men are shown to have been permitted to vote who were not registered, and therefore not legal voters at that election. The circuit court deducted 13 votes from contestee (appellant) and nine from contestant (appellee), leaving the latter winner by a majority of three. There was but little direct evidence of bribery to sustain that charge. There was considerable drunkenness and some treating shown.

Just what conclusion we may have reached on these points is immaterial, because, without pursuing that inquiry to its end, we have become convinced that upon other grounds, coupled alone with the mildest judgment that might be reached on the charges of bribery and the other irregularities charged, the election ought not to stand. The other grounds of contest alleged were indifferently sustained by the proof or not at all. This election was one only in form. The Constitution and statutes require all elections save that of school trustee) to be by secret ballot. Here about 80 per cent. of the voters observed the required course of voting, while the officers of election suffered about 20 per cent., far more than enough to have changed the result either way, to ignore the constitutional and statutory requirements, and to that extent conduct the election in...