Lay v. Rose
| Decision Date | 23 October 1917 |
| Citation | 177 Ky. 303 |
| Parties | Lay v. Rose. |
| Court | Kentucky Court of Appeals |
Appeal from Whitley Circuit Court.
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H. H. OWENS, HENRY C. GILLIS, BEN GOLDEN and ELI H. BROWN for appellant.
H. C. CLAY, W. R. HENRY, A. T. SILER and R. L. POPE for appellee.
At the August, 1917, primary election W. R. Lay, R. S. Rose and J. C. Bird were candidates for nomination for the office of circuit judge in the 34th judicial district, composed of the counties of Whitley, Knox and McCreary, and Lay, who was defeated on the face of the election returns, contested the nomination of Rose, who, as between himself and Lay, received a majority of the votes.
It may here be stated as a conceded fact that at this election R. S. Rose received a plurality of the votes cast as shown by the returns of the election officers and as shown by the ballots, which were counted by order of the court that heard this contested election case, and it was the judgment of the court on the whole case that Rose, having received a plurality of the votes, was the nominee of the Republican party for the office of circuit judge, and this fact was ordered to be certified to the Secretary of State. From the judgment Lay has prosecuted this appeal.
For reasons that will be later set out, it will only be necessary on this appeal to consider questions relating to the practice in contested election cases and questions involving the jurisdiction of the circuit court to hear and determine this class of cases.
The primary election was held on August 4, 1917, and it is provided in subsection 26 of section 1550 of the Kentucky Statutes that in primary elections for district offices like the one here in question the returns of the election officers shall be made to the Secretary of State; and that
Pursuant to this statute two, and a majority of the State Board of Election Commissioners, met in their office at the State Capitol, on August 18th, the day specified in the statute when they should assemble, and made the following order on their official record book:
The verity of this record is attested by T. W. Pennington, secretary, and R. W. Keenon, chairman, of the board.
It will be observed from this order that the board adjourned to August 22nd, but it appears from their records that they did not meet on that day, but did on August 24th, when the following order was made on their official record book:
The verity of this record is attested by T. W. Pennington, secretary, and R. W. Keenon, chairman, of the board.
It appears from the order made on August 18th that the board on that day canvassed the returns and ascertained and determined from them that R. S. Rose received "the highest number of votes for the Republican nomination for circuit judge in the 34th judicial district," but that on account of the objection of W. R. Lay, a contending candidate for the office, the certificate was not then issued to Rose. It is further made clear by the order of August 24th that the reason why the certificate was not issued to Rose on August 18th was because Rose had not at that time filed the post-election statement of his expenses required by section six of the corrupt practice act, which act also provides that no board authorized to issue certificates of nomination shall issue the same until the statement of expenses shall have been made and filed as required. We make with confidence the assertion that the certificate was not issued to Rose on August 18th solely because he had not then filed his expense statement, because the order of August 24th recites that
At this point it is convenient to notice that on the hearing in this court the verity of the order entered by the Board of Election Commissioners on August 18th was sought to be impeached by affidavits tendered for the first time in this court, showing that the Board of Election Commissioners did not assemble on August 18th or make or enter the order their records show they did make and enter on that date; that they did not on that day canvass the returns or ascertain or determine that Rose had received a majority of the votes; that no meeting of the Board of Election Commissioners was held until August 24th, on which day the returns were canvassed, and from these returns it was on that day ascertained and determined that Rose had received, as shown by the official returns, a plurality of the votes, and thereupon the certificate of nomination was issued to him.
But we are not at liberty on the hearing of this case to consider at all the sufficiency of these impeaching affidavits or allow them any weight for the purpose intended, however much we might be disposed to do so. The record made by the election commissioners and certified to as correct by the secretary and chairman of that board cannot be overthrown in this way. It is too well settled to need citation of authority that the Court of Appeals, except in cases where it is specifically provided, is not a court of original jurisdiction. It must decide cases like this upon the record as it is made up in the lower court, and the record so made up in the lower court cannot be added to or supplemented by papers or documents of any kind that are tendered and offered to be filed for the first time in this court.
If Lay had desired to attack the verity of the record made by the election commissioners on August 18th, he should and could have done so in the lower court, as a certified copy of this record was filed in the lower court by Rose, who relied on it as showing that the notices of contest came too late and that the circuit court had no jurisdiction of the contest. But having failed in the lower court to challenge the correctness of the record, it is too late to draw it in question by affidavits offered to be filed on the hearing of the case in this court.
Having this view of the matter, the only question before us on this issue is, does the record of the Board of Election Commissioners, made and entered on August 18th, show that on that date it was ascertained and determined by the board that Rose had received a plurality or the highest number of votes cast at the August election in the race for circuit judge?
It is earnestly insisted that the order of August 18th does not, with sufficient definiteness to make it binding, show that the board did on that day canvass the returns and ascertain and determine that Rose had received the highest number of votes, and this being so, we should look alone to the order made by the board on August 24th as fixing the time when it was ascertained and determined by the board that Rose had received the highest number of votes and was entitled to the certificate, which was then issued.
Under the circumstances of this case we would readily adopt this view if the orders of the board made on August 18th and August 24th could reasonably and fairly be construed to mean that the board did not canvass the returns or determine who was entitled to the certificate until August 24th, but we do not think these orders are fairly or indeed at all susceptible of being so construed. On the contrary, we think that the order of August 18th shows plainly that on that day the board did canvass the returns and ascertain and determine that Rose had received the highest number of votes.
If Rose had on August 18th filed his statement of election expenses, there can be no doubt that on this record the Board of Election Commissioners could have been compelled by mandamus to issue to Rose a certificate of nomination, as it shows the essential fact that on the election returns Rose had received a majority of the votes. This is all that the Board of Election Commissioners are required or authorized to find. Their duties begin and end with canvassing the...
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Damron v. Johnson
...of nomination fixes the time from which the five days allowed for filing a contest begin to run: Ward v. Howard, 177 Ky. 38; Lay v. Rose, 177 Ky. 303. It was to supply this omission that appellant offered to file the amendment refused by the court and whether or not the court erred in refus......