Hogg v. Howard
| Decision Date | 28 September 1951 |
| Citation | 242 S.W.2d 626 |
| Parties | HOGG v. HOWARD et al. |
| Court | United States State Supreme Court — District of Kentucky |
R. Kent Sampson, Harlan, Smith, Reed & Leary, Rudy Yessin and Joseph J. Leary, Frankfort, for appellant.
J. C. Baker, Harlan, A. E. Funk, Jr., Middlesboro, for appellees.
CULLEN, Commissioner.
This is an appeal from a judgment in an election recount proceeding.
Astor Hogg and Bert O. Howard were candidates in the 1951 primary election for the Republican nomination for the office of circuit judge in the 26th judicial district, which is composed of Harlan County. The county election commissioners certified that Howard won the nomination by 47 votes. Hogg thereupon instituted a recount proceeding, under KRS 122.060, in the Harlan Circuit Court.
The recount was commenced, and the ballots from 31 precincts were recounted without any change in the results. The ballots for Hiram Precinct were then brought in to be recounted. In this precinct, on the original count, Howard had received 77 votes and Hogg had received 3. When the ballot box was opened, Hogg objected to the counting of the ballots in the box on the ground that they were not legal ballots, and he offered parol evidence to show that the name of the judge of the election appearing on the back of each ballot had not been written by the judge in person, but that the clerk of the election had signed the judge's name. This evidence was admitted over Howard's objection Howard, apparently relying on Stevens v. Coleman, 311 Ky. 313, 224 S.W.2d 149, then introduced parol evidence to show that the clerk signed the judge's name with the consent and in the presence of the judge. Hogg then offered evidence, which again was admitted over Howard's objection, to show that neither the clerk nor either of the judges of election had been legally appointed or designated, that none of the election officers had taken the oath required by statute, and that the sheriff of election further was not qualified because he could not read nor write.
At this stage of the proceeding the parties stipulated that they would accept the original count in the remaining precincts, and pitched the case on Hiram Precinct alone. Obviously, if the votes in Hiram Precinct were not counted, Hogg would win; otherwise Howard would remain the victor.
The trial judge, without written opinion setting forth his reasons, determined that the ballots in Hiram Precinct should be counted, and entered judgment directing that Howard be issued the certificate of nomination. From this judgment Hogg has appealed.
The Court is faced squarely in this case with the question of the extent to which, in an election recount proceeding, parol evidence is admissible concerning the legality of the ballots. An analysis of the prior decisions of the Court on this question indicates some elements of inconsistency, thus suggesting the desirability of a thorough reexamination of the question.
In Wright v. Crase, 273 Ky. 76, 115 S.W.2d 318, 321, in discussing a contention that parol evidence should have been admitted, in a recount proceeding, to show that the judge's name was signed on the back of the ballots by an unauthorized person, the Court said: 'It may be doubted, but not now decided, that this contention is one not properly raised under the recount statute, but should be subject to a contest, * * *.'
Prior to the Wright case, in Campbell v. Little, 251 Ky. 812, 66 S.W.2d 67, it had been held that ballots having a peculiar ink mark on the margin were entitled to be counted, in a recount case, where the testimony of the election officers showed that the mark was made inadvertently when a rubber stamp was used to stamp the voter's address on the stub. However, the question of whether such testimony was admissible in a recount case was not discussed, the Court seeming to have assumed that the testimony was admissible.
Subsequent to the Wright case, in Brandenburg v. Hurst, 289 Ky. 155, 158 S.W.2d 420, it was assumed, again without discussion, that parol evidence could be admitted in a recount case to show that the name of the judge of election appearing on the back of the ballots was not signed by the judge in person, but by one of the other election officers.
In Adams v. Helton, 295 Ky. 326, 174 S.W.2d 406, which was decided a little over a year after the Brandenburg case, a recount proceeding was joined with a contest proceeding, and in connection with the recount phase of the proceeding the lower court held that the ballots could be considered only on their face and that no explanatory evidence could be introduced, but that this ruling would not prejudice the right of the parties to introduce evidence, in the contest phase of the proceeding, as to irregularities affecting the ballots. On the appeal, this Court did not question the correctness of the ruling of the lower court in barring oral testimony in the recount proceeding.
Finally, in Berndt v. Fitzpatrick, 300 Ky. 484, 189 S.W.2d 678, 679, this Court expressly held that oral testimony was admissible in a recount proceeding to show that the name appearing on the back of the ballots in the line designated for the clerk's signature actually was the name of the judge of election, and that the judge inadvertently had signed on the wrong line. In so holding, the Court said that parol testimony or extrinsic evidence may be heard, in a recount proceeding, 'for the purpose of determining whether there is a legal ballot to count.' The Court further said that the trial judge in a recount proceeding is not limited to the mere ministerial duty of counting the ballots, but has judicial discretion to hear evidence to determine whether or not the ballot is legal.
In Allen v. Sturgill, 311 Ky. 17, 223 S.W.2d 164, the contention was made by counsel that the Berndt case was authority for admitting evidence, in a recount case, as to illegal voting and ballot-box stuffing. The Court rejected this contention, saying:
The most recent case involving the question under consideration is Stevens v....
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