Rose v. Turner

• Decision Date: 21 December 1945
• Citation: 301 Ky. 272,191 S.W.2d 397
• Parties: ROSE v. TURNER et al.
• Court: Kentucky Court of Appeals

191 S.W.2d 397

301 Ky. 272

ROSE v. TURNER et al.

Court of Appeals of Kentucky

December 21, 1945

Proceeding on the application of Green Rose against Lester Turner and others for an injunction requiring the County Election Commissioners to reassemble and cancel the certificate of election for city councilman issued to defendant Clarence Hensley and to count certain ballots. Motion to count ballots overruled, otherwise injunction granted by Circuit Court, and defendants filed motion for dissolution of injunction.

Motion overruled.

Kash C Williams and G. C. Allen, both of Jackson, for plaintiff.

Grannis Bach and A. H. Patton, both of Jackson, for defendants.

LATIMER Justice.

This cause is before me on the defendants' motion to dissolve an order of injunction entered by the Breathitt Circuit Court.

At the regular November election, 1945, six members were to be elected to the council in the City of Jackson, a fourth class city. Of the twelve candidates running, five received distinct majorities. The plaintiff, Green Rose, and Lester Turner tied for the sixth, each having received 286 votes. The Election Commissioners determined by lot that Clarence Hensley had been elected and issued to him a certificate of election.

The plaintiff, Green Rose, thereupon filed this action against the members of Breathitt County Election Board in the Breathitt Circuit Court, wherein he alleged that the defendant Commissioners had refused to count certain ballots which had been cast for him; had wrongfully and unlawfully determined by lot that the defendant, Clarence Hensley, had been elected as councilman; that such action on the part of the Commissioners was without authority and void, and asked the court to require the Commissioners to reassemble and cancel the certificate of election issued to Clarence Hensley, and to count certain ballots which he described in his petition and to certify to the City Council the actual number of votes cast and tabulated for him.

An amended petition was filed making Clarence Hensley a party defendant.

Application was made for injunction in accordance with the prayer of the petition. Upon a hearing, the court being of the belief, and rightly so, that it was without jurisdiction to determine the question presented by that portion of the petition asking for a recount because it was in the nature of a contest overruled the motion to require the Commissioners to count the ballots as described in the petition. See Cole v Ridings, 271 Ky. 158, 111 S.W.2d 605, and cases cited therein.

The court granted the relief asked for as to the cancellation of the certificate of election issued to Hensley, and in its order stated:

'* * * the Court is of the opinion and so adjudges that the election commissioners had no right or authority to determine that the said Clarence Hensley was elected a member of the City Council at said election, and that the certificate of election to him was, and is wholly void.

'The defendants, Lester Turner, Grover C. Anderson and George W. Little, are hereby ordered and directed to re-assemble and to certify to the City Council, the number of votes received at said election by the plaintiff, Green Rose, and the defendant, Clarence Hensley and to cancel the certificate issued to Clarence Hensley. To which ruling of the Court, the defendant objects and excepts, and on their motion they are given twenty days in which to make application to a Judge of the Court of Appeals for an order directing the Circuit Court or Judge to dissolve or modify this order of injunction.'

Whereupon, the defendants addressed their motion to this court asking for the dissolution of the injunction.

This action involves the construction of Sections 86.220 subsection (4), and 118.400, KRS. Section 118.400 provides: 'The county board of election commissioners shall issue certificates of election where the successful candidate was voted for by a county or by a district less than one county. The board shall forward the certificate to the elected candidate, unless he has failed to comply with KRS 123.060, 123.070 or 123.080. If the board finds that two or more candidates have...