Lilly v. O'Brien

• Citation: 224 Ky. 474
• Parties: Lilly v. O'Brien.
• Decision Date: 06 March 1928
• Court: United States State Supreme Court (Kentucky)

Page 474

224 Ky. 474

Lilly v. O'Brien.

Court of Appeals of Kentucky.

Decided March 6, 1928.

1. Judges. — Affidavit merely stating belief that judge will not afford litigant a fair and impartial trial, without stating disqualifying facts, is insufficient, under Ky. Stats., sec. 968, to oust judge of right and duty to preside in trial.

2. Statutes. — When a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statutes as if plainly written in it originally.

3. Judges. — Affidavit in election contest, stating that plaintiff believed judge entertained hostile opinion, without stating material disqualifying facts, held insufficient, under Ky. Stats., sec. 968, to require judge to vacate bench.

4. Elections. — Final action of board of canvassers for election, as contemplated by Ky. Stats., sec. 1596a-12, relating to contest of election of state officers, is the issuance of certificates of election by such board after filing of expense account, as required by sections 1565b-5, 1565b-7.

5. Elections. — Under Ky. Stats., sec. 1596a-12. relating to contest of election of state officers, made applicable to city of Lexington by section 3172, a contest of election of mayor for the city of Lexington filed before final action of board of canvassers in issuing certificate of election after expense account was filed, pursuant to sections 1565b-5, 1565b-7, held not within jurisdiction of court.

6. Elections. — Courts do not have jurisdiction of election contests, except in so far as it is conferred by statute.

7. Limitation of Actions. — Limitations prescribed by statute, to bar remedies, must be pleaded, and may be waived by party entitled to invoke them.

8. Elections. — Limitation prescribed by Ky. Stats., sec. 1596a-12, relative to election contest cannot be waived and need not be pleaded, only right existing by virtue of statute, and scope and effect must be determined therefrom.

9. Elections. — Premature bringing of election contest held not to have been cured by subsequent amendment filed after cause of action had accrued, since an amendment to petition relates back to original petition, and, if original action was filed prematurely, it must be dismissed, carrying amendments with it.

10. Elections. — Under Civil Code of Practice, sec. 92, subsec. 4, defendant in election contest did not waive right to object to jurisdiction of court or prematurity of action by a general appearance and filing of various motions, since lack of jurisdiction of subject-matter of action may not be waived.

11. Judges. — Affidavit of prejudice in election contest, failing to state materially disqualifying facts, and containing allegation relative to law partner of special judge having been promised office by defendant, based entirely on rumor, held insufficient, under Ky. Stats., sec. 968.

12. Elections. — Election contest of mayor's office in city of second class operating under Ky. Stats., sec. 3235c-1 et seq., held not within limitation of 30 days, under section 3172, when contest involves any state or district office comprising more than one county; mayor being included in general clause "any other officer," to contest whose election action must be brought within 10 days after final action by board of canvassers.

Appeal from Fayette Circuit Court.

GRANT E. LILLY for appellant.

HUNT, NORTHCUTT & BUSH, D.C. HUNTER, W.H. TOWNSEND and R.L. COLBERT for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

Lexington is a city of the second class operating under the commission form of government. Section 3235c-1 et seq., Kentucy Statutes. Grant E. Lilly and James J. O'Brien were nominated for mayor of the city at the primary election held on the third Saturday before the day for the regular election (section 3235c-6, Kentucky Statutes), and were voted for at the election on November 8, 1927. The canvass of the returns of the election was completed on November 12, 1927, and it was found that O'Brien was elected to the office by a majority of 935 votes. The result was certified in triplicate, but the certificates of election were left in the form book until November 18, 1927, when O'Brien filed his expense account, as required by the Corrupt Practices Act (sections 1565b-5, 1565b-6, 1565b-7), whereupon the certificates in proper form were delivered as directed by the Statutes (sections 1596a-5, 1596a-7). A contest was filed by Lilly against O'Brien on November 12, 1927, under section 1596a-12, Kentucky Statutes. The regular judge declined to preside in the case, and Hon. Pelham Johnston was duly designated, commissioned, and qualified as special judge of the Fayette circuit court to try it. The plaintiff filed a motion and affidavit to disqualify the special judge, and he declined to retire from the bench. Judgment was rendered, dismissing the contest for lack of jurisdiction of the subject-matter, from which judgment the first appeal is prosecuted.

A second contest filed by Lilly on December 17, 1927, traveled the same course, and met a like fate, and the second appeal is from the judgment in that case. The two appeals have been argued together, and will be disposed of in a single opinion.

The question presented by the two appeals is whether the special judge designated to try the cases erred (1) in refusing to vacate the bench upon the affidavit of the plaintiff, (2) in dismissing the first contest for lack of jurisdiction of the subject-matter thereof, because the same was filed in advance of the final action of the county board of election commissioners, and (3) in dismissing the second contest because it was filed more than 10 days after the final action of the said board.

It is provided by statute that, if either party shall file with the clerk of the court his affidavit that the trial judge will not afford him a fair and impartial trial, the judge shall not preside in the case. Section 968, Kentucky Statutes.

The reasons set forth in appellant's first affidavit are, in substance, that the special judge is a law partner of Hogan Yancey, mayor of Lexington; that for some 18 months plaintiff had been attorney for and president of the Gas Consumers' League, organized to secure a reasonable price for gas furnished in the city; that thereby hostile feeling had been engendered between plaintiff and the city officials; that the newspapers had published accounts of the differences and debates, which were sometimes acrimonious; that the special judge was familiar with the facts stated and sided with Yancey; that Yancey was a partisan of O'Brien and a friend and supporter; that the special judge was a friend and supporter of O'Brien in the election; that plaintiff believed he had discussed the case with Yancey and entertained an opinion hostile to plaintiff; that plaintiff believed it would be impossible for the special judge to divest himself of his preconceived ideas of the case formed during and before the election; and that the ideas of the special judge "must be prejudicial and unfriendly to plaintiff because of his intimate association with Yancey, and his friendship for O'Brien."

It is quite impossible to spell out of this affidavit any material facts that could be construed as disqualifying the special judge to try the issues arising in a contest over the election of mayor. Indeed, the appellant does not insist, as clearly he could not, that the affidavit meets the requirements of the statute as construed by the decisions of this court, but the argument is advanced that the statute is mandatory and does not require a litigant to state any reasons for his belief that he cannot obtain a fair trial, but only his conclusion that the judge will not afford him a fair and impartial trial. The argument is fallacious. Such a construction of the statute would be impracticable and would lead to absurd results. If any litigant could remove a judge simply by filing an affidavit of his belief, no case could ever be brought to trial except by consent.

This particular section of the Statutes has been construed by this court in a long line of decisions and the construction thereof has become firmly imbedded in our jurisprudence. It is now too late to argue that a simple affidavit, without supplying disqualifying facts, can oust a judge of his right and duty to preside in the trial of a case.

In the German Insurance Co. v. Landram, 88 Ky. 433, 11 S.W. 367, 592, 10 Ky. Law Rep. 1039, the court said:

"The fact or facts upon which the belief that the judge will not give the litigant a fair trial should and must be stated in the affidavit, and they must be of such a character as shall prevent the judge from properly presiding in the case. We do not mean to say the statement of the ground for belief must establish, if true, that the judge is a corrupt official, but we do mean to adjudge that such causes, and those of a like character, as have been noticed, are not sufficient, and there must be some fact stated, such as personal hostility of such a character, if that ground is relied on, as would prevent an official of personal integrity from presiding in the case; and of the sufficiency of the affidavit that the trial judge must determine, and the question, if improperly decided, can be raised in this court, as in other cases, if an appeal is taken."

In White v. Jouett, 147 Ky. 197, 144 S.W. 55, the court reviewed the authorities up to that time and concluded that the affidavit there involved was insufficient because the charges must be so direct and certain that the affiant may be subject to criminal action if the charges should be false. The law has been so often and so recently announced and applied by this court that we deem it unnecessary to do more than cite a few of the cases. Stamp v. Commonwealth, 195 Ky. 404, 243 S.W. 27; Eastridge v. Commonwealth, 195 Ky. 126, 241 S.W. 807; Chreste v. Commonwealth, 178 Ky. 311, 198 S.W. 929; Browning v. Lovett, 94...