Nunnelly v. Doty
Decision Date | 23 October 1925 |
Citation | 210 Ky. 642,276 S.W. 152 |
Parties | NUNNELLY v. DOTY. |
Court | Kentucky Court of Appeals |
Rehearing Denied with Modification Oct. 30, 1925.
Appeal from Circuit Court, Warren County.
Primary election contest by H. K. Doty against Coleman D. Nunnelly. From an award of a certificate to contestant, contestee appeals. Reversed and remanded.
Thomas Thomas & Logan, of Bowling Green, for appellant.
Denhardt & Huntsman, of Bowling Green, and Gardner K. Byers, of Louisville, for appellee.
Appellant and appellee were opposing candidates for the Democratic nomination for justice of the peace in Bristow magisterial district of Warren county in the primary election held last August. Appellee received on the face of the returns 307 votes, and appellant 309. Appellee filed notice of contest. The circuit court awarded the certificate to Doty. Nunnelly appeals.
The grounds of contest rest upon illegal votes cast on both sides. One of the grounds is that persons who were not Democrats were allowed to vote. Section 1550--19, Ky. St after providing certain qualifications, provides as follows:
"He shall, in addition to said qualifications, be a member of the party for whose nominees he intends to cast his vote, and shall have affiliated with said party and supported its nominees and no person shall be deemed to have affiliated with the party in whose primary he seem (seeks) to cast his vote, if he voted against the nominee or nominees of such party at the last general election."
A person offering to vote in a party primary is not qualified if he voted against the nominee or nominees of the party at the last general election. To be qualified he must have supported his party ticket, and must have affiliated in good faith with the party. He is not qualified if he voted for one of the party's nominees and against others at the last election. Commonwealth v. Carson, 171 Ky. 288, 188 S.W. 372. An infant cannot vote. The following votes should not be counted: For Nunnelly: David Bratton, Mrs. Matt Bratton, Willie Harlow, Earl Canter. For Doty: E. W. Harlan, Mrs. Nick White, Jim Ward, Mrs. S. Cook, W. A. Gott, Mrs. W. A. Gott, Tandy McGinnis, Mrs. Tandy McGinnis, Henry Wilson, Mrs. Henry Wilson, Tom Slaughter, Lillian Almond, James Elkins, W. L. Gray, H. B. Gray, Roy Carrier, Robert Farley, Clay Watts.
A voter must be a resident of the precinct. If the precinct line runs through his house he may, at his option, vote in either precinct, unless excluded by the order of the court fixing the line, but when he once exercises his option this is final. He must vote in the precinct in which the house in which he lives stands, although the majority of his farm may be in another precinct. There is great contradiction of evidence as to residence of many of the voters who are questioned. The lines of the precinct appear never to have been run out. The line between Warren county and Edmonson county, if ever run, was run many years ago, and the survey has been lost.
Under such circumstances no little weight must be attached to the fact that for a long time a person has voted in a certain precinct without objection; that he has paid taxes there; and that his children have been enrolled in school for a long time. Under such circumstances the proof should be clear and definite as to the location of the line to disfranchise the voter. A voter who in good faith has resided in a precinct does not lose his residence there by temporary absence for business purposes. But he does lose it by moving from the precinct without intention to return. If he intends to...
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Del Rio Independent School District of Val Verde County v. Aldrete
...570 (1905), and Smith v. Combs, 310 Ky. 755, 221 S.W.2d 672, Ky.Ct. of App., are cited in support of this rule. See also Nunnelly v. Doty, 240 Ky. 642, 276 S.W. 152, Ky.Ct. of App; Stice v. Parsley, 217 Ky. 716, 290 S.W. 471, Ky.Ct. of In Harrison v. Jay, 153 Tex. 460, 271 S.W.2d 388 (1954)......
- Nunnelly v. Doty