Ledford v. Hubbard

CourtCourt of Appeals of Kentucky
Citation219 Ky. 9,292 S.W. 345
PartiesLEDFORD v. HUBBARD.
Decision Date10 December 1926

Rehearing Denied with Modification March 25, 1927.

Appeal from Circuit Court, Clay County.

Action by A. S. Ledford to contest the election of Millard Hubbard as Sheriff of Clay County. From a judgment in favor of Hubbard, Ledford appeals. Reversed and rendered.

Clay C.J., and Rees and Logan, JJ., dissenting.

John M Quinn, of Manchester, for appellant.

Roy W House, of Manchester, and William Lewis, of London, for appellee.

DRURY C.

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. This 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 petion 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 placed upon the ballot. The county clerk refused to receive this certificate, or to file it, and thereupon Ledford began a suit in the Clay circuit court, the result of which was that the clerk was compelled by that court to do so. As a further precaution, Ledford, on October 31, although his name was then printed on the ballot as the Republican nominee for sheriff, procured from the chairman of the Republican county committee a nomination as such candidate as permitted under section 1464 of the Statutes. So far as the attack upon Ledford's right to have his name on the ballot is concerned, that is settled by our opinion delivered on October 22, 1926, in the case of Baker v. Marcum, 216 Ky. 210, 287 S.W. 696, which was appealed from this county and involved practically the same questions. See, also, Schnabel v. Sutton, 213 Ky. 116, 280 S.W. 488.

We shall now consider Hubbard's right to have his name on the ballot. Hubbard contends that his nominating petition was signed by 134 legal voters. Ledford contends, and asks us to adjudge, there were only 122 names on it, and that of these very few really signed it. As to how many signatures there were to Hubbard's petition, there is sharp conflict on the testimony. Several reputable men testified that there were 134 names, while others equally reputable testified that there were only 122. This petition cannot be found; but we have before us an officially certified copy of the signatures to this petition, made by the county clerk at a time when it was a public record in his office, and that fixes the number at 122. It is claimed that one whole page of signatures to the McDaniels petition was taken from it and inserted in the Hubbard petition. Evidence shows that the fourth page in Hubbard's petition was of a different kind of paper from the rest of Hubbard's petition, of different length, and had pin holes in it, as though it had been in another parcel; that it was of the same kind of paper as the rest of the McDaniels petition; that it had a peculiar blurred line made by the typewriter without question made at the same time and by the same typewriter as that shown on the fifth page of the McDaniels petition, and had been folded in the same manner as McDaniels' petition, and unlike remainder of Hubbard's petition.

Ledford is also asking us to strike from Hubbard's nominating petition those names that were written upon the page claimed to have been taken from McDaniels' petition and inserted in Hubbard's petition.

It will not be necessary for us to strike the 12 names being signatures 123 to 134 inclusive, which are referred to in this record as the "added names," nor will it be necessary for us to strike the names alleged to have been taken from the McDaniels petition which are referred to in this record as the "McDaniels petitioners." We are persuaded from the proof that Ledford is probably correct in both of these contentions. Without doing either of these things, we find that Hubbard has not the requisite number of legal signatures to his petition. In the case of Morgan v. Revis, 215 Ky. 30, 284 S.W. 111, we said:

"The statute contemplated either a personal signature, or one made by another in the presence of the person whose name was signed."

It requires neither more nor less formality to make a signature to such a petition as this, than it does to make a signature to a deed, a contract, or a will. It has long been the settled rule in this and other jurisdictions that where a person's name is signed for him, at his direction, and in his presence, by another, the signature becomes his own, and is sufficient to give the same validity to an instrument as though written by the person himself. W. J. Fell Co. v. Elswick, 194 Ky. 641, 240 S.W. 373; Irvin v. Thompson, 7 Ky. (4 Bibb) 295; 36 Cyc. 451; 13 C.J. 307, § 130; 40 Cyc. 1103; Savage v. Bulger, 76 S.W. 361, 25 Ky. Law Rep. 763; Id., 77 S.W. 717, 25 Ky. Law Rep. 1269; Upchurch v. Upchurch, 55 Ky. (16 B. Mon.) 102; Middlesboro Waterworks v. Neal et al., 105 Ky. 586, 49 S.W. 428, 20 Ky. Law Rep. 1403; 27 C.J. 287, § 356. See, also, the more than fourscore of cases from England and states of this Union cited in the case of Pierce v. Dekle et al. (61 Fla. 390, 54 So. 389), reported in Ann. Cas. 1912D, 1355 and the notes following. This rule is based upon the familiar maxim, "qui facit per alium facit per se." ...

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