Major v. Barker

• Decision Date: 28 April 1896
• Citation: 99 Ky. 305,35 S.W. 543
• Parties: MAJOR v. BARKER.
• Court: Kentucky Court of Appeals

35 S.W. 543

99 Ky. 305

MAJOR v. BARKER.

Court of Appeals of Kentucky.

April 28, 1896

Appeal from circuit court, Christian county.

"Not to be officially reported."

Proceedings by Thomas H. Major to contest the election of Thomas M Barker to the office of justice of the peace, taken on appeal by a contestant from the decision of the county board to the circuit court. From a judgment in favor of the contestee, the contestant appeals. Affirmed.

Paynter J., dissenting.

J. I Landes and Harry Fergerson, for appellant.

Joe McCarroll and C. H. Bush, for appellee.

DU RELLE, J.

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: (1) 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. (2) The clerk at that precinct accompanied 18 voters into the voting booths, and stamped or assisted those voters in stamping their ballots, so that they should be counted for appellee. (3) The officers at that precinct fraudulently counted 48 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. St. Ky. § 1475. 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...