Potter v. Campbell

• Decision Date: 18 November 1913
• Citation: 160 S.W. 763,155 Ky. 784
• Parties: POTTER v. CAMPBELL et al.
• Court: Kentucky Court of Appeals

160 S.W. 763

155 Ky. 784

POTTER v. CAMPBELL et al.

Court of Appeals of Kentucky.

November 18, 1913

Suit by George W. Potter against M. F. Campbell and others. On motion by defendants to dissolve and modify an injunction. Motion denied.

CARROLL J.

This case comes before me on a motion to modify or dissolve a mandatory injunction issued by the Honorable M. M. Redwine judge of the Thirty-Second judicial district. The facts upon which the mandatory injunction was granted by Judge Redwine are these: At the November election, 1913, George W. Potter was the Democratic candidate for the office of superintendent of common schools of Pike County, and M. F. Campbell was the Republican candidate for this office; there being no other candidates for this office. The certificates of the election officers according to the averments of the petition showed that Potter had received 3,902 votes and Campbell 3,760 votes, thus giving Potter a majority on the face of the returns made by the election officers of 142 votes.

Hi Pauley is and was the sheriff of Pike county, and J. D. Meade was and is the duly appointed and qualified member of the board of election commissioners of Pike county for the Republican party. On and prior to November 7th, J. R Johnson, Jr., was the regularly appointed and qualified Democratic member of the board of election commissioners for that county, but on November 8th Johnson, who was unable on November 7th, on account of illness, to perform the duties of the office, resigned, and on the same day S. M. Cecil was duly appointed to fill the vacancy occasioned by the resignation of Johnson and thereupon qualified and became the Democratic member of the board of election commissioners. J. A. Scott was and is the circuit court clerk of Pike county.

On November 7th, the day appointed by law for the election commissioners to meet and canvass the returns, there was present, when the commissioners met, Pauley, the sheriff, and Meade, the Republican member of the board; Johnson, the Democratic member, being absent on account of illness. Before the board of commissioners took any action toward canvassing the returns, Pauley, the sheriff, conceiving that he was disqualified to act as a member of the board, left the room in which the commissioners had assembled, and thereupon J. A Scott, circuit court clerk of Pike County, supposing that he had authority to act in the place of the Pauley, took the place of Pauley as a member of the board. The board as thus organized consisted of Scott and Meade. This board, after canvassing the returns of the election officers in the manner they believed they had the right to canvass them, found that Campbell had received 3,503 votes and Potter 3,499 votes, and thereupon Scott and Meade signed, issued, and delivered to Campbell a certificate showing his election to the office of county superintendent.

On November 11th this suit in equity was brought by Potter against Campbell, Pauley, Scott, Meade, and Cecil. The petition, after setting out in a general way the facts heretofore stated, averred that on the face of the returns by the election officers Potter had received a majority of 142 votes and was therefore entitled to have issued to him by the board of election commissioners a certificate showing his election to the office; that Pauley, as sheriff, was not disqualified from acting as election commissioner, and Scott, the circuit clerk, had no right or authority to act as a member of the board: that, when the certificate of election was issued to Campbell, the board of election commissioners was composed of Pauley, Meade, and Cecil; that this board, or any two of them, had never canvassed the election returns or issued a certificate of election to either of the candidates for the office of county superintendent; that the certificate of election issued to Campbell was only signed by one member of the board of election commissioners, to wit, Meade. The petition further asked a mandatory injunction against Pauley, Meade, and Cecil, compelling them to meet together in the county clerk's office of Pike County and canvass and certify the votes for the office of county superintendent of schools in the race between Campbell and Potter and award a certificate of election to the candidate having the highest number of votes as shown on the face of the returns as made by the election officers. It was further asked that Scott, as circuit clerk, be restrained from acting with or taking any part in the proceedings of the board.

It further appears from the answer and affidavits filed with the record that Pauley, the sheriff, declined to act as a member of the board of election commissioners because he believed he was disqualified, for the reason that two persons who had been and were his deputies were candidates for the office of sheriff of Pike County at the November election, 1913, and that the circuit clerk believed it to be his duty to act in the place of the sheriff when the sheriff was disqualified.

It further appears from the affidavits that the returns as certified to by the election officers showed that Potter had received a majority of 142 votes, but Scott and Meade, exercising the duties of election commissioners, came to the conclusion, from the facts and evidence at their disposal, that the election officers in several precincts had erroneously and improperly counted twice for Potter and Campbell the votes of the women who had voted for each of them. This mistake, as these persons acting as election commissioners believed, arose in this way: At several precincts a number of women voted for Potter and a number also voted for Campbell; the votes of the women being cast on separate ballots made out for the office of county superintendent alone. But the election officers, in making out their general certificate of the number of votes cast, added to the votes of Potter and Campbell cast by men the votes cast for each of them by women and found and certified the total vote cast for each to be the number of votes cast for each by both men and women, and after doing this they further certified that Potter and Campbell had each received by the number of votes cast for each by the women. Thus the certificate of the election officers showed that Potter and Campbell at these precincts had received more votes than they actually did receive.

It may here be observed that we do not mean to say that this character of mistake was made by the election officers or that any mistake of any kind was made by them in certifying the number of votes received by Potter and Campbell. We merely mention this matter for the purpose of explaining the position of Scott and Meade, who, in canvassing the returns for this office, deducted from the votes received by Potter and Campbell, as certified to in the general certificate signed by the officers of the election, the votes of the women that it was certified each of them had received. By this process of canvassing the returns showed, as Scott and Meade claimed, that Campbell received the majority of the votes.

Upon these facts Judge Redwine granted the mandatory injunction applied for and directed "Hi Pauley, sheriff, and J. D. Meade and S. M. Cecil, members of the board of election commissioners for Pike County, to meet together in the county court clerk's office of Pikeville and count, canvass, and certify the returns in the race between the plaintiff, Potter, and the defendant, Campbell, for superintendent of common schools of Pike county at the election held November 4, 1913, and to issue and award a certificate of election to the candidate in said race having the highest number of votes on the face of the returns as certified to by the precinct officers of the election, in accordance with the prayer of the petition. It is further ordered that said board be and is hereby ordered and enjoined and restrained from making any changes in the face of the return as certified to them by the precinct officers of said election. It is further ordered that J. A. Scott, circuit court clerk of Pike county, Ky. be and is hereby enjoined and restrained from meeting, or attempting to meet, or acting, or attempting to act, as a member thereof or interfering with Hi Pauley, sheriff, acting as a member of said board."

Four questions are presented for decision: First, was a mandatory injunction the proper remedy, or should Potter have proceeded by a mandamus? Second, who composed the board of election commissioners, and what will disqualify the regular commissioners from acting, and, if one of them is disqualified, who shall take his place? Third, the discretion and powers of election commissioners in canvassing returns. Fourth, was the order issued by Judge Redwine too broad?

In cases like this, is a mandatory injunction the proper remedy or should relief be sought by a mandamus? There is no doubt that members of the board of election commissioners, who are ministerial officers, may be compelled by a mandamus to assemble and discharge the duties required of them by law. Civil Code, § 477; Anderson v. Likens, 104 Ky. 699 ...