Judd v. Polk

• Decision Date: 23 February 1937
• Citation: 267 Ky. 408
• Parties: Judd v. Polk et al.
• Court: United States State Supreme Court — District of Kentucky

267 Ky. 408

Judd v. Polk et al.

Court of Appeals of Kentucky.

Decided February 23, 1937.

1. Elections. — County clerk held bound to cause candidates' names to be placed on ballots and to cause ballots to be printed, bound, and prepared for distribution, and both clerk and his surety are liable to candidate deprived of office by clerk's failure to place candidate's name on ballot, provided certificate of nomination has been timely filed (Ky. Stats., secs. 1453, 1465).

2. Elections. — Violation of Corrupt Practices Act held not to render nomination or election void ipso facto, but only in event of contest by defeated candidate (Ky. Stats., sec. 1565b-11).

3. Elections. — Defeated candidate in regular election may not contest on ground that opponent violated Corrupt Practices Act in obtaining nomination (Ky. Stats., sec. 1565b-1 et seq.; sec. 1565b-11).

4. Elections. — In action by unopposed candidate for office of county surveyor for failure to place plaintiff's name on ballot at general election, county clerk held not entitled to defend on ground that plaintiff failed to file expense statements, either as to primary or general election; violation of Corrupt practice Act being available only in contest by defeated candidate (Ky. Stats., secs. 1453, 1465, 1565b-7, 1565b-9, 1565b-11).

5. Elections. — County clerk with whom certificate of nomination has been timely filed cannot refuse to cause nominee's name to be placed on ballot, except in obedience to judicial invalidation of nomination or certificate, notwithstanding failure to file expense statements pursuant to Corrupt Practices Act (Ky. Stats., secs. 1453, 1465, 1565b-7, 1565b-11).

6. Elections. — Where name of unopposed candidate for county surveyor was not placed on ballot at general election, he was not a candidate, and there was no election (Ky. Stats., secs. 1453, 1465).

7. Elections. — In action by unopposed candidate for office of county surveyor for failure to place plaintiff's name on ballot at general election, county clerk, whose omission rendered filing of expense statements unnecessary and futile, held not entitled to invoke Corrupt Practices Act providing that until filing of such statements no person may qualify as elective officer or receive certificate of nomination, and that no officer may receive any salary (Ky. Stats., secs. 1453, 1465, 1565b-9, 1565b-11).

8. Elections. — In action by unopposed candidate for county surveyor against county clerk and his surety for clerk's failure to place plaintiff's name on ballot at general election, plaintiff's failure to file certificate of competency before entering on duties of his office held not available as defense (Ky. Stats., secs. 1453, 1465).

Appeal from McCracken Circuit Court.

L.B. ALEXANDER for appellant.

WHEELER & SHELBOURNE for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

Plaintiff, D.W. Judd, brought this action against John W. Polk, former county clerk of McCracken county, and his surety, to recover $2,400 damages for his failure to place Judd's name on the ballot to be used at the November election, 1933, as the Democratic candidate for county surveyor. According to the petition and amended petition, Polk was the duly elected, qualified, and acting county clerk of McCracken county during the year 1933, and had executed bond with the Fidelity & Casualty Company of New York as surety, conditioned for the faithful performance of the duties of the office. At the August primary, 1933, plaintiff was a candidate for the office of county surveyor in McCracken county in the Democratic primary, and no other person having filed for that office, there was issued to him a certificate of nomination which he filed with Polk as county clerk in the time required by law. It was the duty of Polk as county clerk to cause plaintiff's name to be printed on the ballot as the Democratic candidate for surveyor of McCracken county at the November election, 1933, but the said Polk, without the knowledge or consent of plaintiff Judd, failed and refused to have his name printed on the ballot. There were no other nominees of any other party for the office of surveyor, and no other person's name was written on the ballot as a candidate for that office. Had his name been placed on the ballot as required by law, plaintiff would have been duly elected county surveyor for a period of four years. When he went to vote at said November election, he discovered that his name was not on the ballot, and was assured by said Polk that it was not necessary as there were no other...