McKinney v. Barker

• Decision Date: 14 May 1918
• Citation: 203 S.W. 303,180 Ky. 526
• Parties: MCKINNEY v. BARKER.
• Court: Kentucky Court of Appeals

203 S.W. 303

180 Ky. 526

MCKINNEY v. BARKER.

Court of Appeals of Kentucky.

May 14, 1918

Appeal from Circuit Court, Fayette County.

Action by W. F. McKinney against John T. Barker. From judgment for defendant, plaintiff appeals. Reversed, with directions.

J Keene Daingerfield, of Lexington, for appellant.

S. S Gantis, of Lexington, for appellee.

THOMAS J.

At the regular November election, 1917, the appellant (plaintiff) and appellee (defendant) were rival candidates for the office of justice of the peace in the Seventh magisterial district in Fayette county, Ky.; the former being the regular Democratic nominee, and the latter being the Republican nominee, each of their names being legally on the ballot to be voted at the regular election and printed in the proper columns under their respective party devices. The plaintiff received at the election 290 votes, while the defendant received 308 votes.

After the canvassing board had tabulated the returns and ascertained the result, and within the time provided by law plaintiff filed this suit against the defendant, his opponent, alleging that he had filed on the 15th day before the election the pre-election statement of expenses required of candidates by section 4 of chapter 13, Acts 1916, commonly known as the Corrupt Practice Act, and he averred facts showing that the statement fully measured up to the requirements of that section, and that the defendant, his opponent, although receiving a majority of the votes, was not entitled to the certificate of election, or to the emoluments of the office, because he had wholly failed to file any pre-election statement, either on the 15th day preceding the election, or any other day prior thereto. He therefore asked the court to adjudge the election of the defendant void, and that he be declared elected, and that the canvassing board be directed to issue to him the certificate of election. He also averred that he had fully complied with the provisions of that act with reference to the filing of a postelection certificate or statement, and in all other respects. He based his right to the relief which he sought in the suit upon the provisions of section 11 of the act referred to, which is in these words:

"In any contest over the nomination or election of any officer mentioned in this act, it may be alleged in the pleadings that the provisions of this act have been violated by the candidate or by others in his behalf with his knowledge, and if it so appears upon the trial of said contest, then said nomination or election shall be declared void, and it is hereby provided that the candidate who has received the next highest number of votes and who has not violated the provisions of this act shall be declared nominated or elected unless it also appears that one of the parties to the contest received a plurality of the votes cast and did not violate the provisions of this act."

A demurrer filed to the petition was overruled, and in the answer filed thereto the defendant admitted the truth of the statement that he had failed to file any pre-election statement, but attempted to excuse his default because he said that up to the day of the election neither he nor any one else in his behalf had spent any sum whatever in his campaign, and that it was therefore unnecessary to file a statement. A demurrer filed to the answer was overruled, and plaintiff declining to plead further, his petition was dismissed, followed by a judgment that defendant was duly elected and entitled to the office, and the canvassing board was directed to issue to him a certificate of election. Complaining of that judgment, plaintiff prosecutes this appeal.

In the recent case of Sparkman v. Sayler, 180 Ky. 263, 202 S.W. 649, we held that the requirement of the act referred to that both pre-election and post-election statements be filed was mandatory, but that the requirement as to the specific time when they should be filed was directory, and that if the preelection statement was filed a sufficient time before the election to serve the purpose of the act it would be sufficient. Under the interpretation thus given, it is clearly manifest that the answer failed to allege a defense, since it is admitted therein that no pre-election statement whatever was filed, and it is not a sufficient excuse for a failure to file it that the candidate had spent no money in his campaign, because it is as necessary that such fact be divulged before the election as it is to make known sums that had been spent, if any, for legitimate purposes. The same reasoning would justify a failure to file the certificate when the candidate, although he had used campaign funds, had done so within the limitations and for the purposes prescribed by the statute; i. e., that he had not violated the statute, and the necessity for the statement was removed. The court therefore committed error in overruling the demurrer to the answer, and in adjudging the defendant elected and entitled to the office.

A more serious question is presented upon the contention of plaintiff that under the proviso in the latter part of section 11, supra, of the act he should be declared elected and entitled to the office. It will be noticed that in the section referred to it is first provided that if any candidate violates any of the provisions of the act (one of which is the filing of the pre-election statement) in a contest over the election, "said nomination or election shall be declared void," and this is followed by a proviso that the candidate who receives the next highest number of votes, and who has complied with the provisions of the act, shall be declared elected to the office if it is the general election, or nominated if it is a primary election. In this case we are not concerned about the effect of such a provision in a contest over a nomination at a primary election, for the one here involved is a general election to fill the office. So the question is: Did the Legislature exceed its power in providing that the one who received neither a majority nor a plurality of the votes should be declared elected and entitled to the office?

At the threshold it may be admitted that it was competent for the Legislature to enact the proviso, unless inhibited from doing so by some provision of the Constitution properly construed manifesting an intention on the part of the people in adopting that instrument to withhold such power. Our Constitution creates a number of offices, from Governor down, and in the sections creating them it is provided that they shall be chosen at an election by the people in which all qualified voters may participate. It is so provided with reference to the office of justice of the peace by section 99 of that instrument, wherein it is said, "There shall be elected in 1894 * * * in each justice's district one justice of the peace," etc., and throughout that instrument it is everywhere manifest that the qualified voters of the territory to be affected shall elect the officers charged with the administration of public affairs, and by the same process of election such voters shall have the right to determine whether certain questions, measures, or policies shall or not be adopted within the territory to be affected. Other parts of it contain provisions, or empower the Legislature to enact provisions, for the purpose of safeguarding the ballot and to insure the purity of elections and the elimination of fraud, so that the sovereign voice of the voter as expressed in the election shall be free, full, and fair, and that the result shall represent the combined will of those participating in the election in the manner provided by a government instituted for and by the people.

In section 6, being a part of the Bill of Rights, it is said, "All elections shall be free and equal." It then becomes necessary to inquire what the makers of the Constitution, as well as the people in adopting it, meant by the use of the word "election" as used therein, and what was meant by the adoption of section 6, supra. All the authorities agree that the legal definition of an election, as well as that which is usually and ordinarily understood by the term, is a choosing or a selection by those having a right to participate of those who shall fill the offices, or of the adoption or rejection of any public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 P. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. The definition given by Mr. Webster is:

"The act of choosing a person (or measure) to fill an office or employment, by any manifestation of preference."

In fact this definition of the term was thoroughly ingrafted into the law without dissent from any source at the time of the adoption of our Constitution, but we need go no further than that instrument itself for a definition of the word, for in section 147 therein it is said:

"The word 'elections' in this section includes the decision of questions submitted to the voters, as well as the choice of officers by them."

It is true that by the language quoted the term was made to include the decision of questions by the voters, as well as the selection of officers, but it is therein said that when applied to the selection of officers it is a choosing by the people of the persons who shall fill the office. This same definition of the word "election" is approved in the cases of Speed & Worthington v. Crawford, 3 Metc. 207, and Police Commissioners v. City of Louisville, 3 Bush, 597, wherein it is said that:

"The term 'election' in its constitutional sense and meaning, is used to designate a

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