Howes v. Perry

• Decision Date: 17 November 1891
• Parties: Howes v. Perry
• Court: Kentucky Court of Appeals

17 S.W. 575

92 Ky. 260

Howes v. Perry

Court of Appeals of Kentucky.

November 17, 1891

Appeal from circuit court, Johnson county.

"Not to be officially reported.

Action by E. F. Howes against L. C. Perry to recover the office of county clerk. Judgment for defendant. Plaintiff appeals. Affirmed.

Lewis J.

It appears from the petition of appellant, a general demurrer to which was sustained, that on the first Monday in August 1890, he and S. T. Bayse were opposing candidates for election by the qualified voters of Johnson county to the office of county court clerk; that said Bayse died about 3 o'clock P. M. on the day of election, leaving the appellant the only candidate or person to be thereafter voted for; but that nevertheless the board of officers empowered and required by law to examine the poll-books, and give certificates of election, refused to give the appellant such certificate; and that afterwards the judge of the Johnson county court wrongfully declared the office of county court clerk vacant, and appointed appellee to fill such vacancy. As to the regularity of appellee's appointment and qualification for the office in question, we need not inquire, because, to recover, which is the object of this action, it was incumbent upon appellant to show his title to it. He alleges that he received 498 votes, but at the same time admits that there were cast and recorded on the poll-books for S. T. Bayse, the opposing candidate, a greater number of votes than for himself, which fact, in our opinion is decisive against his right to the office. It is a principle of free elections by the people, firmly fixed and understood, that no person is or can be regarded duly elected to an office unless, when only two persons are voted for, he receives a majority of the votes cast for them, or receives a plurality in case there are more than two voted for. Any other rule would be subversive of the fundamental idea of elections by the people under our form of government, which is that only that person shall be entitled to hold an elective office who appears from the record of votes cast to have been the choice of a majority or plurality of those voting in such election. There is no means of ascertaining whether S. T. Bayse had at the time of his death received more votes than the whole number given to appellant; nor is it necessary to inquire, for it is admitted by appellant he was not the choice of a majority...