Schaffield v. Hebel

• Decision Date: 18 January 1946
• Citation: 301 Ky. 358,192 S.W.2d 84
• Parties: SCHAFFIELD v. HEBEL et al.
• Court: Kentucky Court of Appeals

192 S.W.2d 84

301 Ky. 358

SCHAFFIELD v. HEBEL et al.

Court of Appeals of Kentucky

January 18, 1946

Appeal from Circuit Court, Campbell County; Ray L. Murphy, Judge.

Petition by Arthur E. Hebel and others against Frank E. Schaffield for a recount in a police judge election, wherein respondent made his response a contest. Contest dismissed, and Schaffield appeals.

Judgment affirmed. one has same force and effect as an act of other so far as it is for interests of the public or of third persons.

Walter J. Burke, of Newport, for appellant.

Daniel W. Davies and Thomas Hirschfeld, both of Newport, for appellees.

STANLEY Commissioner.

On the face of the returns of the November, 1945, election, Frank E Schaffield, Democrat, was elected Police Judge of Dayton over Arthur E. Hebel, Republican, by a majority of 11 votes. Hebel petitioned the court for a recount and Schaffield made his response a contest. The recount showed Hebel elected by a majority of one vote. The court dismissed Schaffield's contest, and he appeals.

It is now agreed that the court properly refused to count for either party five ballots which were not signed by one of the judges of the election. One ballot has a small cross mark almost invisible, in the block opposite Schaffield's name, and he claims it should be counted for him. Apparently the shadowy mark was not made with a stencil. The folding of the ballot did not cause it; nor does it appear to have been left after an attempted erasure. The ballot was clearly and properly voted with distinct, clear stencil marks in three other races and for six of eight candidates for councilmen. There may be several guesses as to how or why this indistinct mark appears on the ballot in the race for Police Judge, but we are very sure that the voter did not make it with any intention that it should be counted and, therefore, that the court properly disregarded it. Another ballot had been stamped for Schaffield and then vigorously erased in a smearing manner. The rubbed fiber of the paper shows the erasure. There was no attempt to vote in several other races, which would indicate that the voter had no purpose of voting in all the races. It is a well established rule that where a mark on a ballot reveals an effort to correct an error, or perhaps a change of mind, or evidences an intention not to vote, the ballot should not be counted. The two contested ballots, therefore, were properly not counted for either party. Wurts v. Newsome, 253 Ky 38, 68 S.W.2d 448.

We are of opinion, therefore, that the result of the recount was proper.

The principal point presents an apparently new question in election contests. In two precincts the ladies appointed to be sheriffs of the election by the County Election Commission acted as judges, and the two ladies named as judges acted as sheriffs. In another precinct a lady who had been appointed a judge was disqualified and did not serve. The election was held by the other three officers, two ladies and one man. The other lady named as a judge served both as judge and sheriff, and also assisted the clerk, while the man appointed as sheriff acted as the other judge. In all these precincts the three persons appointed as sheriffs but who served as judges signed their names on the ballot as judges. Hebel received 281 of the ballots so signed and Schaffield received 194. Schaffield contends that all of these ballots are invalid because not signed by the judges appointed by the County Election Commission; that the signatures of the sheriffs were nullities so far as giving validity to the ballots. If he should be sustained, then he would have a majority of 86 votes.

The swapping of offices in this manner is not to be approved or commended. The Board of Election Commissioners presumably exercised care and discretion in choosing and appointing persons to the respective election offices, having consideration for their special qualifications. KRS 116.080. The statute provides that if an officer so appointed does not appear for service his place shall be filled by the other election officer of the same political party or if none then present by the voters then assembled at the polls. KRS 116.130. Therefore, the swapping of positions is contrary to the statute, but ordinarily it is of little consequence. The law provides that there shall be a judge representing each of the two political parties, and the sheriffs in the whole county shall be evenly divided between the two parties so that in alternate precincts there is a Republican and a Democrat sheriff. Among his duties is that of acting as umpire when the judges disagree on a voter's right to cast his ballot. KRS 118.270. As a practical matter his office may be very important in this particular. Thus it appears in this instance that the result of the exchange was that in two of the precincts both acting judges were Democrats. There is no intimation of unfairness, however, or suggestion of a dispute of any kind having arisen or that the election was held other than proper and legal in every respect. It is a general principle, consistently observed, that an election will not be invalidated, wholly or partially, or voters be deprived of their right of suffrage by mere irregularities on the part of election officers, or by their failure to conform to a statutory provision which is not mandatory or of the essence, or for a non-compliance with a statute which does not expressly declare that such failure shall be a ground for throwing out an election, in whole or in part, unless such dereliction affects the fairness and equality of the election or the ascertainment of the true results. Cowan v. Prowse, 93 Ky. 156, 19 S.W. 407, 14 Ky.Law.R. 273; Raymer v. Willis, ...