Hopkins v. Swift

• Decision Date: 09 October 1896
• Parties: Hopkins, &c. v. Swift, &c.
• Court: Kentucky Court of Appeals

100 Ky. 14

Hopkins, &c. v. Swift, &c.

Court of Appeals of Kentucky.

October 9, 1896.

APPEAL FROM CALLOWAY CIRCUIT COURT.

W. B. KEYS AND THOS. P. COOK FOR APPELLANTS.

L. C. LINN, JR., FOR APPELLEES.

JUDGE LANDES DELIVERED THE OPINION OF THE COURT:

On the first Saturday in June, 1895, an election was held in White Common School District No. 34, of the county of Calloway, for the purpose of choosing a trustee for the common school of the district for the term fixed by law.

It appears that due notice of the election had been given; that it was held at the district school house, and that it was held and conducted in all respects as prescribed by the statute. (Kentucky Statutes, section 4434.)

The appellant, Elias Hopkins, and William Lee, residents of the district and duly qualified, were the only candidates for the office, and at the close of the polls it was ascertained by the judges of the election that twenty-five votes were cast for the appellant and twenty-three for the said William Lee, and, the appellant having received a majority of the votes cast, the judges of the election, as required by the statute, issued and gave him a certificate of election, and reported to the county superintendent, in writing, within the time required by the statute, the fact that the appellant was elected.

After receiving the certificate, and in due time, the appellant, Hopkins, qualified by taking the oaths required by law before a justice of the peace of the county, and forwarded to the county superintendent a certificate of his qualification, signed by the justice.

A few days after the election complaint was made to the county superintendent by the appellee, J. H. Swift, who was the chairman of the trustees for the said district, that the appellant, Hopkins, was not lawfully elected, and, at his instance, the county superintendent undertook to investigate the case and to ascertain whether or not the appellant, Hopkins, was properly elected, and entitled to the office.

It is to be observed that William Lee, who was the competitor of Hopkins for the office at the election, made no complaint, and did not propose to contest the election, and did not authorize anyone to contest it for him, and that there was no written notice of contest. Besides, it does not appear from the record that the appellant, Hopkins, was, either in person or by attorney, a party or that he consented to this investigation, although he was present a part of the time during which it was in progress.

But a great many witnesses were examined before the county superintendent, and their testimony related mainly to the vote of one W. L. Clayton, which was cast at the election, recorded on the poll book, and counted for the appellant, Hopkins; and this was the basis of the complaint, it being claimed that Clayton's vote ought to have been recorded and counted for Lee instead of for Hopkins. The testimony was in substance that when Clayton offered to vote his name was entered in the poll book by direction of the judges, and, when asked by the judges for whom he wished to vote, his answer was that he would vote for appellant, Hopkins, and his vote was accordingly so recorded by the clerk; that he at once left the table where the officers of the election were taking the votes, but remained in the room a few feet from the table, and that two other voters presented themselves, and their votes were given and recorded; that after the lapse of several minutes Clayton went up to the table on which the poll book was lying, and, pointing to the poll book which showed that his vote was recorded for Hopkins, said to the judges that he wanted it changed from Hopkins to Lee, as he intended to vote, and had in fact voted, for the latter and not for the former, and requested the judges to change it, but that the judges refused to change it or permit it to be changed.

Several of the witnesses stated, and the proof seems conclusive, that when asked for whom he would vote, Clayton answered: "Hopkins is a poor man, and I am a poor man, and I will vote for Hopkins."

At the conclusion of the examination of the witnesses the county superintendent decided that the vote of Clayton ought to have been changed by the officers of the election, as requested by him, and that if the change had been made there would have been a tie vote between Hopkins and Lee, and, assuming that there was a vacancy in the office, proceeded at once to appoint and qualify the appellee, T. P. Tarry, to fill the vacancy.

The decision of the county superintendent was made on the 6th day of June, 1895. On the 8th day of July following, in pursuance of a call of appellee, Swift, as the chairman of the board of trustees, a meeting of the trustees was held at the district schoolhouse for the purpose of employing a teacher for the district school for the school year. That meeting was attended by appellants, Hopkins and T. P. Jones, one of the trustees, and appellees, Swift and Tarry, the latter claiming to be a trustee by virtue of the appointment made by the county superintendent to fill the vacancy supposed to exist as above stated.

At that meeting appellants, Jones and Hopkins, being a majority of the trustees, if Hopkins was lawfully in office, by written contract employed appellant, Ellen Keys, to teach the school for five months, and appellees, Swift and Tarry, who constituted a majority of the trustees, if Tarry was lawfully appointed and in office, by a similar contract employed appellee, M. T. Morris, as the teacher. This being the situation of affairs, the appellants commenced this action in the Calloway Circuit Court, in which they asserted the right of appellant, Hopkins to the office of trustee, and the right of appellant, Ellen Keys, under her aforesaid contract, to teach the district school, which rights, they alleged were being invaded and intruded upon, and of which they were being deprived by the appellees, and praying that the appellees be enjoined and restrained from interfering with them in the exercise of the rights claimed by them in the premises.

Motion was made on notice by the appellants for a temporary injunction, issue was joined upon the answer, denying the rights claimed,...