Schnabel v. Sutton

• Decision Date: 16 February 1926
• Citation: 213 Ky. 116
• Parties: Schnabel v. Sutton, et al.
• Court: United States State Supreme Court — District of Kentucky

213 Ky. 116

Schnabel v. Sutton, et al.

Court of Appeals of Kentucky.

Decided February 16, 1926.

1. Elections — Requirement for Filing Certificate of Nomination Held Mandatory. — Ky. Stats., section 1456, requiring certificates of nomination to be filed by nominee with clerk, is mandatory, but clerk is not required to make record of filing; fact that he receives certificate being sufficient.

2. Elections — Nominee, Presenting Certificate to Clerk, Held to Comply with Statute. — Where nominee presented certificate of nomination for filing, pursuant to Ky. Stats., section 1456, and clerk declined to accept it, saying ballots could be printed from names in records of election commissioners which were in his possession held, nominee had complied with statute, and therefore sections 1464 and 1550-5, relative to vacancies among nominees, did not apply.

3. Mandamus — Writ Lies to Compel Printing of Name on Ballots but does Not Lie while Defendant is Doing Thing Sought. — Where clerk fails to print name of nominee on ballots, mandamus would compel him to do so, and, as ancillary thereto, require proper filing of certificate of nomination; but mandamus would not lie while clerk was doing thing sought.

4. Elections — Law Requiring Filing Certificates of Nomination should be Liberally Construed. — While Ky. Stats., section 1456, is mandatory as to time in which nominee may file certificate, it should be liberally construed as to manner of filing, as it would be manifestly unjust to deprive political party of legal nominee by trivial error in filing certificate.

Appeal from Henderson Circuit Court.

YEAMAN, PENTECOST & YEAMAN for appellant.

HENSON & TAYLOR for appellees.

OPINION OF THE COURT BY JUDGE McCANDLESS

Affirming.

At the August, 1925, primary election, Alma M. Schnabel was nominated and certified as the Republican candidate for the office of county court clerk of Henderson county. At the same election Griffin Sutton was nominated and certified as the Democratic candidate for that office. Both names appeared on the official ballot at the November election. The returns as canvassed by the canvassing board of that county showed that Miss Schnabel received 4,688 votes and Sutton 5,380, whereupon Miss Schnabel filed this proceeding, contesting Sutton's election on the sole ground that his name was illegally printed on the official ballot as a candidate for the office named; that all the votes cast for him were illegal and void, and that thereby she had received a majority of the legal votes, had been duly elected and was entitled to the office. The circuit court dismissed her contest and she has appealed.

As the evidence corresponds closely to the pleadings it is unnecessary to set out the former in this opinion. The facts are these: It appears that it has been the practice in Henderson county for the election commissioners to issue triplicate certificates of nomination, one of which is detached and delivered to the nominee and the others remain in their record book, which is left in the county clerk's office when the board is not in session. It has also been the custom and practice of the county clerk to make out the list of candidates for the printer, to be placed upon the official ballot without the successful nominees filing their certificates as required by law, there having been but four such certificates filed properly within the past four years.

On the first of September, 1925, appellee Sutton and Charles Duncan, Democratic candidate for jailer, went to the clerk's office for the purpose of filing their certificates of nomination. Harry Jones, the regular deputy county court clerk, was in charge of the office, and they presented their certificates and requested him to file them, laying the certificates down on the desk counter between them and him. As to what occurred Mr. Jones testifies that he (Jones) said: "I don't see any use of you filing these certificates of nomination; we will have two duplicates of that in this office. Some of them in the office have never been torn out and I don't think it will be necessary for you to file them, and they said, `Well, what must we do with them?' I says, `I suppose they gave them to you to keep. We can make the records from the two duplicates that we have in the office. . . .' One of them said, `I will put mine in my pocket,' and the other said, `I will frame mine.'" He further states that he picked up Duncan's certificate and also saw Sutton's certificate lying with the writing up, on the counter within his reach. It appears that he endorsed Duncan's certificate as filed, though he says that he does not remember doing this and must have done it mechanically, as some weeks afterward he learned that he had endorsed it "filed;" both candidates picked up their certificates and left the office.

On the 15th of September, Miss Schnabel presented her certificate for filing and he had a similar conversation with her, but she requested him to keep it as she feared losing it, and he endorsed it "filed" and placed it in a file case labeled for that purpose, although only one other candidate to be voted for at that election made a similar filing.

Mr. Cottingham, the clerk, testifies that he and Mr. Jones made out the list of names of candidates for the printer to place upon the official ballot; he had opposed Mr. Sutton in the primary and knew that Sutton had been nominated and acted on this assumption; he knew nothing as to what transpired between Jones and Sutton. The evidence of Sutton and Duncan corroborates Jones, Sutton adding that Jones told him that it was not customary for the candidates to file their nomination certificates...