Ledford v. Hubbard

• Decision Date: 25 March 1927
• Parties: Ledford v. Hubbard.
• Court: United States State Supreme Court — District of Kentucky

219 Ky. 9

Ledford v. Hubbard.

Court of Appeals of Kentucky.

Decided December 10, 1926.

Rehearing Denied with Modification March 25, 1927.

1. Elections. — Nominee for sheriff, if failing to properly file certificate of nomination within time required by Ky. Stats., section 1456, held validly nominated by certificate of chairman of Republican county committee acting under section 1464.

2. Elections. — Ky. Stats., section 1453, contemplates that signature on nominating petition be either personal signature or one made by another in presence of person whose name was signed.

3. Signatures. — Where person's name is signed for him, at his direction and in his presence by another, signature becomes his own and is sufficient to give same validity to instrument as though written by himself.

4. Elections. — In election contest, burden is on party claiming nomination under petition to show due execution of such petition.

5. Elections. — One who sought to get his name on ballot by complying with Ky. Stats., section 1453, originally had burden to show compliance with such statute, since one claiming compliance with statute must prove that he did so.

6. Evidence. — Defendant who makes affirmative defense has burden with respect thereto.

7. Elections. — In election contest where evidence showed that signatures on nominating petition were not written by signers themselves, person claiming nomination under such petition had burden to show that they were written for signers in their presence and by their direction.

8. Evidence. — Where party who has not general burden of proof possesses positive and complete knowledge concerning existence of facts which party having burden is called on to negative, or where for any reason evidence to prove facts is chiefly within his control, he has burden to produce evidence.

9. Signatures. — Signature consists both of act of writing party's name and intention of thereby finally authenticating instrument.

10. Elections. — Where voter's signature to nominating petition was written by himself, such fact raises presumption that he intended to authenticate instrument, and it is unnecessary to offer proof of such intention.

11. Elections. — Where party's name is not written on nominating petition by party himself, proof must be adduced to show that it was his intention to authenticate instrument.

12. Elections. — There is presumption that each signature upon nominating petition was written there by alleged voter himself.

13. Signatures. — To make valid the signature of party's name by another under parol authority, he must know what is being done through operation of some of his senses, and not through trust or confidence in party doing writing.

14. Elections. — Signatures on nominating petition for sheriff, not made by alleged voters themselves nor in their presence, will be stricken.

15. Elections. — Where name of voter appears in two places on nominating petition, one will be stricken.

16. Elections. — Signature of person living outside county will be stricken from nominating petition for sheriff.

17. Elections. — Wife's name written on nominating petition for Sheriff by husband without her knowledge will be stricken.

18. Elections. — Where there is no proof to show when or where name was written on nominating petition for sheriff and name was not written by voter personally, it will be stricken.

19. Elections. — Signature on nominating petition for sheriff, not written by voter himself nor in his presence or at his direction, will be stricken.

20. Elections. — Evidence held insufficient to show that signature on nominating petition for sheriff was written in presence and by authority of voter, where husband went into house, obtained consent, and returned and reported to person who wrote signature.

21. Elections. — Signature of person who was unable to read or write found on nominating petition for sheriff will be stricken, where it was not shown that name was written in presence and by authority of such person.

22. Elections. — Evidence held insufficient to show that name of voter was signed to nominating petition for sheriff in his presence and at his request, in view of his positive denial.

23. Elections. — Signature will be stricken from nominating petition for sheriff, where all the evidence shows there is no such person.

24. Elections. — Clerk held without authority to put on ballot name of candidate for sheriff whose nominating petition contained less than 100 valid signatures due to disregard of Ky. Stats., section 1453.

25. Elections. — Votes for one whose name was placed on ballot, notwithstanding insufficient number of signatures on nominating petition, cannot be counted, and candidate who had majority without counting such votes was elected, unless he violated Corrupt Practice Act (Ky. Stats., section 1565b-1 et seq.) or there was such fraud that court was unable to say who received majority of legal votes.

Appeal from Clay Circuit Court.

JOHN M. QUINN for appellant.

ROY W. HOUSE and WILLIAM LEWIS for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellee, Millard Hubbard, was found by the election commissioners of Clay county to have been elected sheriff at the election held November 3, 1925. Ledford, who was the regular Republican nominee, contested Hubbard's election. Burchell, who was the regular Democratic nominee, also contested Hubbard's election, and contested the right of Ledford to participate in that election, or to maintain his contest against Hubbard. He made the election commissioners of Clay county parties to his contest, and they are appellees here. The two cases were tried together. The trial court found in favor of Hubbard, and from that finding Ledford has prosecuted this appeal, and has brought up 17 volumes of record. Hubbard has also prosecuted an appeal from that judgment, and has brought up 11 volumes of record made in his case. At the primary election of August 1, 1925, there were 6 different candidates for the Republican nomination for the office of sheriff of Clay county. More than 100 candidates were seeking nominations at that primary. This primary election followed a very heated campaign. Ledford received the certificate of nomination. There seems to have been but little interest taken in the Democratic campaign, and Burchell received the certificate as nominee of the Democratic party for that office.

Following this primary, there was much dissatisfaction and talk of an independent ticket. Those disgruntled at first contemplated the nomination of T.C. McDaniels as an independent candidate for sheriff. A petition for McDaniels was prepared, but before it was filed his friends became aware of the fact that, as he had been a candidate in the August primary, he could not be a candidate upon an independent ticket at the November election. Their attention was called to this on the 15th of September. The next morning, September 16, a petition was prepared and circulated by this same element, requesting the clerk of the Clay county court to print upon the ballot for the November election the name of Millard Hubbard as an independent candidate for the office of sheriff. The petition was prepared and signed in great haste. It is claimed by Ledford, the regular Republican nominee, and Burchell, the regular Democratic nominee, that this petition was defective and insufficient, because it did not state the age of Hubbard, how long he had been a resident of Clay county, failed to designate any emblem, and did not contain the picture of any emblem under which it was proposed that his name should be placed on the ballot; that it was not signed by 100 legal voters of Clay county; that a page of signatures to the McDaniels petition was taken from that petition and inserted in the Hubbard petition; that the Hubbard petition, after it was filed, was then withdrawn, and further signatures thereto procured; and there were other defects alleged, but this is enough for our purpose.

Besides questioning the right of Hubbard to have his name placed on the ballot, Ledford filed other grounds of contest, so numerous that we shall not undertake to detail them, further than to say that the petition and exhibits make up 135 pages of the record. The answer and counterclaim filed by Hubbard is just about as voluminous there being over 100 pages of it, alleging a little bit of everything; but the chief thing relied on is that Ledford failed to file his nomination certificate within the time required by section 1456 of the statutes. Thus at the very threshold of this case we find Ledford and Hubbard struggling, each endeavoring to maintain his own position on the ballot and to thrust off his adversary. The facts about that appear to be that after the August primary, the election commissioners made duplicate certificates of nomination; that one certificate was mailed to each of the successful candidates, and the duplicate thereof was delivered to George S. Jones, clerk of the Clay county court, with directions to indorse them "filed," and that Jones agreed to do so. Ledford was in the county clerk's office shortly thereafter, and asked the clerk if there was anything else he had to do, and the clerk told him "no." except to file his expense account before the final election. About the 20th of September, the rumor was started that all the Republican candidates who were nominated at the August primary, except one, had failed to file their certificates of nomination, and had lost their rights to have their names printed on the official ballot. It is agreed that on October 3, 1925, the executive committee of the Republican party held a meeting in Manchester, that a quorum was present, and at that meeting that executive committee indorsed and nominated the Republican nominees of the August primary. Ledford took his certificate from the Republican executive committee to the county clerk, and asked him to file it, and have his name...