Mason v. Byrley

• Decision Date: 22 September 1904
• Parties: MASON et al. v. BYRLEY et al.
• Court: Kentucky Court of Appeals

84 S.W. 767

MASON et al. v. BYRLEY et al.

Court of Appeals of Kentucky.

September 22, 1904

W. H Holt, for plaintiffs.

W. R Ramsey and M. H. Rhorer for defendants.

SETTLE J.

At a primary election held in the Eleventh Congressional District for the purpose of nominating a Republican candidate for Congress, to be voted for at the November election, 1904, W G. Hunter and D. C. Edwards were rival candidates for the nomination; and each of them claims to have received a majority of the votes cast at the primary, and consequently entitled to be declared the nominee. It appears, however that at a meeting held at Middlesboro August 17, 1904, attended by the defendants, eight of whom are chairmen, respectively, of the county Republican committees of that number of counties of the Eleventh Congressional District, and three of whom were proxies, respectively, for the chairmen of the Republican committees of three other counties of that district, a canvass was made or attempted to be made by them of the returns from each of the 19 counties of the district, as the result of which it was decided that the defendant W. G. Hunter had received a majority of the votes cast at the primary election, and he was thereupon awarded a certificate declaring him the nominee. The injunction, the dissolution of which is now sought by the defendants, was issued by the circuit judge at the instance of D. C. Edwards and other plaintiffs. By it the members of the Republican district committee of the Eleventh Congressional District, including such of the defendants as are members of that committee, are commanded to meet at Somerset, Pulaski county, September 21, 1904, and canvass the votes as returned from each of the counties, for the purpose of ascertaining which of the contending candidates is entitled to the nomination, and to issue to the successful party a certificate declaring him the nominee.

The petition, as amended, charges error in the count as made by the defendants at Middlesboro, denies their authority to act, and charges fraud upon their part in reaching the result declared by them. It is not proper for the case to be decided at this juncture upon its merits. We can only determine whether the facts appearing upon the face of the record authorized the granting of the mandatory injunction. It could have been granted in this case upon but one ground, viz., that the committee which canvassed the votes at Middlesboro were not legally constituted, and were consequently without authority to act in the premises. Fraud or irregularity in conducting an election, certifying the returns, or in the manner of canvassing the vote, ascertaining or certifying the result, cannot be made the subject of inquiry in an action for mandamus or mandatory injunction against the officers, committee, or party authorities charged by law with the duty of merely canvassing the vote and ascertaining and declaring the result. Such matters can be inquired into, but it must be done by contesting the election as provided by the statute under which all primary elections that are held in this state must be conducted (Ky. St. 1903, § 1563). Henry v. Secrest, 71 S.W. 892, 24 Ky. Law Rep. 1505; Steele v. Meade, 98 Ky. 614, 33 S.W. 944; Stine v. Berry, 96 Ky. 63, 27 S.W. 809; Anderson v. Likens, 47 S.W. 867, 20 Ky. Law Rep. 1001; Booe v. Kenner, 49 S.W. 330, 20 Ky. Law Rep. 1343.

Likewise, where a canvass of the returns has been made, and the result of the election or primary declared by the officers or committee charged by law with the performance of that duty, no power exists in such officers or committee to make a recount, nor can a chancellor compel them to do so, however erroneous or fraudulent the result. In such a case the wronged candidate must resort to a contest before the proper tribunal for the enforcement of his right to the nomination or office in question. McCreary on Elections, § 267. But if, as contended by plaintiffs, the committee which met at Middlesboro was not legally constituted, it was without power to act. Therefore there has been no canvass of the votes and no ascertainment of the result of the primary election in the Eleventh Congressional District. It becomes necessary, therefore, to determine whether the committee was legally constituted. The Legislature of this state enacted a statute providing for and regulating the holding by political parties of primary elections for nominating party candidates for office. In Brown v. Republican Executive Committee, etc., 68 S.W. 622, 23 Ky. Law Rep. 2421, it was held that a primary election not conducted as prescribed by the statute is unlawful. In Young, etc., v. Beckham, 72 S.W. 1092, 24 Ky. Law Rep. 2135, it was said, in construing the statute, supra: "When section 1565, Ky. St. 1903, says that the article shall apply to all elections held for the purpose of nominating candidates for state, county, district, or municipal offices, it must have meant that the committee or governing authority of the party can ascertain and certify the result of the primary held to nominate candidates for such offices to the Secretary of State, because it is provided in section 1553 that the committee or governing authority of the party may order a primary election. In addition to that, section 1563 provides that the committee or governing authority in the county or district are empowered to count the votes. *** If the committee or governing authority can call and hold a primary election, the same authority can certify to the Secretary of State the names of the parties who are entitled to be placed upon the official ballot. *** The committee should follow strictly the provisions of the statute regulating the holding of the primary election. Unless this is done, the risk is taken that they may not be able to have those who are declared to be the nominees placed upon the ballot at the regular election."

The governing authority in the Eleventh Congressional District is the district committee, made up of the chairmen of the several Republican committees of the counties composing that district. The primary election which is the subject of investigation in this case was called by the district committee as thus constituted. It was therefore the duty of the same committee, following the holding of the election, to meet, canvass the returns made of the votes cast in the primary, ascertain the result, and declare as the nominee of the Republican party the person who received the highest number of votes therein. The presence at the meeting of a majority of the district committee was necessary to constitute a quorum. It appears that there were but eight members of the committee present at the Middlesboro meeting. Three other persons, holding the proxies of that number of absent members of the district committee, were also present at the meeting, and acted with the eight members of the committee mentioned, in the work of canvassing the votes returned from the several counties, and in ascertaining the result and in declaring the defendant Hunter the nominee. If the three persons thus acting with the eight member of the district committee were legally empowered by the written proxies received by them of three absent members of the committee to perform any and all duties that...