Lucas v. Avis

• Decision Date: 13 October 1905
• Citation: 89 S.W. 1
• Parties: LUCAS v. AVIS et al.
• Court: Kentucky Court of Appeals

89 S.W. 1

LUCAS v. AVIS et al.

Court of Appeals of Kentucky.

October 13, 1905

Appeal from Circuit Court, Franklin County.

"Not to be officially reported."

Action by M. B. Lucas against Paul Avis and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

G. H Briggs, for appellant.

Wm Cromwell and W. C. Marshall, for appellees.

HOBSON C.J.

M. B Lucas was a candidate for the Democratic nomination for jailer of Franklin county at a primary election in November 1904. J. W. Bridges received the certificate of nomination upon the count of the votes by the county committee, and thereupon Lucas gave notice of contest. When the contest came up for trial the committee declined to examine the ballots, and on February 25, 1905, he filed this action against the committee in the Franklin circuit court to obtain a mandatory injunction compelling them to examine the ballots cast in the election and compare them with the certificate of the election officers. The circuit court dismissed his petition, and he appeals.

In the recent case of Taylor v. Democratic County Committee, 87 S.W. 786, 27 Ky. Law Rep. 1064, this court, defining the duties of the committee and the extent to which they could be controlled by the courts, said: "The governing authority of the party, under the statute, is given the authority to hear and determine the contest. The committee may also determine the form and manner of the proceedings in the case. It is its duty to receive legal evidence and to give it such weight as in their judgment faithfully and honestly exercised, it is entitled to. The court can require the committee to act, and, when they act, the law requires of them that they shall faithfully and honestly discharge their duties. In acting they are discharging official duties, and should discharge them according to law. While they may be compelled by the court to act, the court cannot, by mandamus or mandatory injunction, control their discretion. This they must exercise under their oath of office and according to their honest judgment." While it is not so averred in the petition, we think it may be fairly inferred from the averments of the petition that the committee decided the contest against Lucas, and that the purpose of this action is to have the court to require the committee to meet again and count the ballots. The court may require the committee to act, but it cannot direct it as to how it shall decide when it acts. As to what evidence it shall receive, the committee in its discretion is by the statute the sole judge. The...