Major v. Barker

• Decision Date: 28 April 1896
• Citation: 99 Ky. 305
• Parties: Major v. Barker.
• Court: Kentucky Court of Appeals

99 Ky. 305

Major v. Barker.

Court of Appeals of Kentucky.

April 28, 1896.

APPEAL FROM CHRISTIAN CIRCUIT COURT.

J. I. LANDES AND HARRY FERGUSON FOR APPELLANT.

C. H. BUSH AND JOE. McCARROLL FOR APPELLEE.

JUDGE Du RELLE DELIVERED THE OPINION OF THE COURT.

The parties to this appeal were candidates at the November election 1894, for the office of justice of the peace for the Longview district of Christian county. Upon the face of the returns the Board of Canvassers found that appellee Barker received 443 votes, and appellant Major 371 votes, showing a majority of 72 in favor of Barker. Appellant duly gave notice of contest of the election, setting forth three principal grounds of contest, and appellee gave a counter notice, in which he relied upon certain irregularities which he claimed to have produced results favorable to appellant. The county board decided the contest in favor of appellee, and its decision was affirmed by the circuit court.

Appellant's grounds of contest were based upon alleged irregularities occurring at the Gordonfield precinct (No. 10), which was one of five precincts included in the district, and were as follows:

1st. The officers of election permitted the ballots of four voters to be stamped openly on the table of the clerk of election without requiring them to state under oath any disability which prevented them from marking their own ballots, and all of these ballots were so marked as to be counted and were counted for appellee.

2d. The clerk of that precinct accompanied eighteen voters into the voting booths and stamped or assisted those voters in stamping their ballots so that they should be counted for appellee.

3d. The officers at that precinct fraudulently counted forty-eight ballots for appellee which had been cast for appellant.

On the other hand the appellee, in his counter notice, relies on the fact that at the Longview precinct, which gave a majority for the appellant, a part of the officers absented themselves during part of the election hours, and that during the absence of the clerk one of the judges of the election acted in his place, and signed the clerk's name upon the back of the ballots.

There were some other grounds of contest urged by appellant, but they are immaterial except in so far as they tend to support the charge of fraud at the Gordonfield precinct.

Upon the first ground stated we are of opinion that the court should have sustained the contention of appellant and excluded from the count the ballots which were marked openly by the clerk of the election, without the statement under oath of disability required by the statute (section 1475 Kentucky Statutes). In our view the statute imperatively requires that the voter shall declare his disability on oath before his ballot can be marked for him by the clerk, and to permit the officers to assume, either from the voter's appearance or from their own alleged personal knowledge, that he is so disabled as to be unable to mark his own ballot, would be to open a door for wholesale evasion of the requirement of secrecy in the ballot. This rule may result in hardship to the individual voter in cases where the officers are neglectful of their duty in requiring the oath of disability to be made, but the requirement that the voter shall take the oath before his ballot can be marked and deposited in order that he may be punished if he make a false declaration...