Norton v. Letton

• Decision Date: 19 November 1937
• Citation: 271 Ky. 353,111 S.W.2d 1053
• Parties: NORTON et al. v. LETTON et al.
• Court: Kentucky Court of Appeals

111 S.W.2d 1053

271 Ky. 353

NORTON et al. v. LETTON et al.

Court of Appeals of Kentucky

November 19, 1937

Rehearing Denied Jan. 28, 1938.

Appeal from Circuit Court, Nicholas County.

Contest proceeding by R. L. Norton and others against H. T. Letton and others, as election commissioners of Nicholas County attacking validity of a local option election. From a judgment dismissing the petition, the plaintiffs appeal.

Judgment reversed, with directions to set aside election.

BAIRD J., dissenting.

Richard P. Dietzman, of Louisville, William Conley, of Carlisle, and O. R. Bright, of Flemingsburg, for appellants.

B. S Grannis, of Flemingsburg, for appellees.

THOMAS Justice.

The judge of the Nicholas county court, pursuant to the provisions of section 2554c-2 et seq. of Baldwin's 1936 Revision of Carroll's Kentucky Statutes, called a local option election to be held throughout the county of Nicholas on May 8, 1937, which was done, and the measure carried by a large majority. Within the time provided by law--and on May 31, 1937--the three appellants and plaintiffs below filed this contest proceeding, pursuant to the provisions of section 2554c-13 of the same statutes, against the election commissioners of the county, and in their petition they attacked the validity of the election on numerous grounds. A demurrer filed by defendants to each of them was sustained, except as to the one charging failure of the sheriff to advertise the election as directed by statute. To that ruling defendants excepted. An answer and other pleadings completed the issues, and upon final submission the court dismissed the petition, complaining of which plaintiffs prosecute this appeal. One of the grounds of contest, to which the court sustained a demurrer, was that in the city of Carlisle (one of the fifth class) there is an independent graded school, and that two board members for that school were elected by the people at an election duly held on Saturday, May 1, 1937, just seven days before the holding of the local option election, and that under the provisions of subsection (b) of section 2554c-4 of the Statutes supra, the local option election could not be held within thirty days--either before or following--the election of trustees or board members for the Carlisle independent graded school.

Learned counsel for plaintiffs have abandoned in this court all other grounds of contest stated in the petition--except the one just mentioned--as is evidenced by this beginning statement in their brief: "The sole question which the appellants desire to present on this appeal is whether or not the holding of a Local Option election in Nicholas County seven days after an election in the Graded School District of the City of Carlisle, a City of the Fifth Class, and the county seat of Nicholas county, for the purpose of electing the School Board of that City, was validly held or not, in view of section 2554c-4, Subsection (b), governing Local Option Election." To the determination of that question this opinion will be exclusively devoted.

The relied on subsection (b) of section 2554c-4, supra, says: ß7FThe election [local option] shall not be held on the same day that a primary or general election is held in the territory or any part thereof, nor within thirty days next preceding or following a regular political election." (Our italics.) Without extended argument we will say that we interpret that provision as forbidding the holding of a local option election on the same day that a regular political election is held in the territory covered by the local option election, or any part of that territory, nor can it (local option election) be held in such territory within thirty days of any such regular political election or within any part of it. With that interpretation settled we will proceed with the performance of the task that the sole submitted question imposes upon us--it being the ascertainment of what was meant by the Legislature in employing the phrase "a regular political election," as embraced in the statute.

It is conceded by all parties that the word "election," as employed in the statute, means only the appointed occasions at which a choice is made by the legal voters within the territory covered by the election, and not to a choice made by a representative body, either legislative or administrative in character, and partaking of the nature of an appointment. Such elections by the qualified voters, as is expressly stated in section 147 of our Constitution, "includes the decision of questions submitted to the voters, as well as the choice of officers by them." Elections by the people are now divided into "Primary" elections and "General" elections--the first of which is exclusively party affairs and confined to the naming of party candidates to be voted for at the next or succeeding general election for such officers. The purpose to be accomplished by the holding of a primary election goes no farther than that. The very phrase "primary election" appears to have been adopted for convenience in order to distinguish it from a regular election at which officers are chosen with governmental duties to perform. A more appropriate designation of the processes of choosing party candidates, perhaps, would have been "primary selection" instead of "primary election," for such is its nature and purpose. However, the Legislature, as we have seen, in providing for a local option election, prescribed that it should not be held on the same day for the holding of either such primary or general election within the same territory, or within any part of that territory; nor within thirty days of the holding of either a primary or general election, either in the entire territory or in only a part of it.

Elections participated in by the people are furthermore divided into "general" and "special" elections. The one (general election) is for the purpose of selecting "an officer after the expiration of the full term of the former officer," while the other (special election) may be one to fill a vacancy on a day other than the prescribed regular election day and before the arrival of the time of the general election for a full term, or to vote upon a measure that may be submitted to the people under provisions of law--but upon no fixed day--and in which cases the election is always required to be advertised and prescribed notices given for its holding. See the definition given in 15 Cyc. on page 279, which is but a restatement of the definitions as made by all courts and text writers. The text in 9 R.C.L. 978, § 3, clearly points out the same distinction between a general and special election, saying in part: "Any election which is not regularly held for the election of officers or for some other purpose which shall come before the citizens at regular fixed intervals is a special election"; whilst general elections are those held upon fixed dates for the choosing of officers for regular periods of time and at which the voters may exercise their choice by casting their ballots. On page 991 in section 13 of the same volume the text in dealing with the question as to when notice of an election is necessary says: "As to general elections it has been well established that the fixing of the time for the election either by law or by the Constitution is in itself notice which all electors must heed. *** Where, however, the time for holding an election is not prescribed by law, but is fixed by the officer vested with authority to call it, the voter cannot be expected to have or to take notice thereof unless notice is given or a proclamation issued." See, also, 20 C.J. 56, § 3. Further text citations are unnecessary and a reference to the annotated notes under the various applicable sections of our statutes and Constitution will demonstrate that we have approved in many opinions the interpretations and definitions contained in the texts cited.

In this case the election--upon the same day of which or within thirty days thereof a local option election is forbidden by the statute--was one for the election of officers, i. e members of the independent graded school district board embraced by the city of Carlisle, which is one of the fifth class. We have held in numerous cases that such positions (i. e., trustees of a school district or members of a school board) are not only officers, but are state officers. They administer and function in the administration of one of the most cherished governmental functions, to wit, the education of the youth of the land. Under the provisions of section 155 of our Constitution the election at which they are chosen, as well as elections appertaining to other school matters, are not embraced by sections 145 to and including section 154 of that instrument. On the contrary, that section (155) expressly provides that "said elections [school trustees and other school elections] shall be regulated by the general assembly, except as otherwise provided in this Constitution." Consequently we held in the case of Clark v. Board of Trustees of Dawson Springs Graded School District, 164 Ky. 210, 175 S.W. 359, and many others following as well as preceding it, that a graded school election might be held on a day other than the regular November election day for the holding of all other regular elections by section 148 of the Constitution, which is the first Tuesday after the first Monday in November of the year in which the election is to be held. Therefore, under the Constitution the Legislature is at liberty to fix the time for the regular or "general" election of school trustees on a day other than the first Tuesday after the first Monday in November. By section 4399-27 of our Statutes, supra (it being a part of chapter 65, article 5, of the Acts of ...