Scholl v. Bell

• Decision Date: 22 May 1907
• Citation: 102 S.W. 248,125 Ky. 750
• Parties: SCHOLL v. BELL. PETER v. WILSON.
• Court: Kentucky Court of Appeals

102 S.W. 248

125 Ky. 750

SCHOLL v. BELL.

PETER v. WILSON.

Court of Appeals of Kentucky.

May 22, 1907

Appeal from Circuit Court, Jefferson County, Chancery Branch, First and Second Divisions.

"To be officially reported."

Actions by Charles L. Scholl against Henry A. Bell and by Arthur Peter against Charles A. Wilson. From a decree in favor of defendants in each case, plaintiffs appeal. Reversed and remanded.

Helm &amp Helm, Helm Bruce, Wm. Marshall Bullitt, Van Norman, Alex G Barret, Percy N. Booth, Lafon Allen, Huston Quin, J. B McCormick, and Pratt Dale, for appellants.

A. J. Carroll, W. M. Smith, W. W. Davies, Norton L. Goldsmith, J. C. Dodd, Herman Morris, and John L. Dodd, for appellees.

LASSING J.

These cases involve the validity of the county and city elections held in Louisville and Jefferson county on the 7th day of November, 1905. The entire Democratic ticket was returned as elected, by the final count, by majorities ranging from 3,373 to 5,280 votes. In this election the Democrats were opposed by what was known as the "Fusion Ticket." The Fusion candidates were selected at a Republican convention in which the "City Club" took a prominent part. Some of the candidates so selected had theretofore affiliated with the Democrats, and some were old line Republicans. They all ran under the Republican device. Following the issuance of the certificates of election to the apparently successful candidates, each of the defeated candidates filed a suit contesting his opponent's right to the office. In these suits the grounds for contest relied upon are set out at length, and the petition, when read in connection with the exhibits filed therewith, shows in the contestants a right to the offices claimed by them. The prayer is in the alternative; that is, that the contestants be declared duly elected, or, in the event this cannot be done, that the election be declared null and void, because the irregularities and frauds practiced were so great that it is impossible to determine who was elected.

It may not be inappropriate at the outset to say that, following the November election, 1903, there were charges freely made that wholesale frauds had been committed in many precincts in the city; that in some places the ballots were stolen and no election held at all, while in others the polling places had been secretly and illegally removed, and the voters in these precincts deprived of the right to vote, while in still others such acts of violence had been committed that the voters were driven from the polls and prevented from taking part in the election; that following this election many criminal prosecutions were set on foot, but none of them resulted in the punishment of those charged with violating the law. For the alleged purpose of correcting these evils, there was formed what was known as the "City Club," a nonpartisan organization, though its membership was largely Republican. This organization, early in the fall of 1905, notified the people, through the newspapers of Louisville, as to how the ballot had been debauched in 1903, and called upon all good citizens, regardless of politics, to join in a movement to secure a fair election. The campaign of 1905 was remarkable for the bitterness and intensity of feeling which was aroused by the charges and countercharges of fraud and corrupt practices. The first real trouble developed upon registration day. The Fusion candidates charged that a great number of repeaters had been brought into the city for the purpose of being registered and later voted, and to prevent these from registering the Fusion party was very active. Their activity brought on many clashes between their challengers and the Democratic workers, and in some instances the members of the police force took a hand in the controversy in aid of the Democrats. In spite of all effort, there were, as shown by the record, a great many illegal registrations. Voters were registered in many instances over the protest of the challengers. The climax to the excitement connected with registration day was reached when a Republican worker, a young man of high character and standing in the city, was beaten up by a policeman, and other Republican workers, who had cameras for the purpose of taking snapshot pictures of men who were believed to be repeaters imported into the city for the purpose of being registered and voted, were driven by the police from the streets. These troubles on registration day intensified the state of feeling. The Fusion leaders complained to, and called upon, the city authorities to discipline the policeman for the unwarranted assault which he made upon an unoffending citizen, and to discipline others for permitting irresponsible characters to assault reputable citizens and escape. The policeman who had been guilty of this assault was acquitted in the city court, while the man whom he had beaten up was convicted.

The Republican and Fusion speakers denounced in unmeasured terms the conduct of the police on registration day, and condemned the action of the court in punishing the citizens who had dared to assert their rights, and in freeing the policemen who had clearly done wrong. These stump speeches aroused in the police a feeling of resentment against the Fusion party, and to the state of feeling thus brought about counsel for appellees say may be attributed the unauthorized acts of violence committed by some of the members of the police force on election day. The Fusionists caused the registration of the entire city to be published in a daily paper in Louisville, giving the street address of each voter, and again, through the press, called upon the citizens to examine the registration as published, and report any improper or illegal registration. A great many illegal registrations were shown, and the county judge, on proof heard, ordered the names of 366 persons to be stricken from the registration as having been illegally registered. He refused to strike the names of 670 other persons from the list because they had not been served with proper notice. Proof taken since the election shows that, in addition to those stricken from the list, 773 other persons not entitled to vote were permitted to do so, bringing the total of illegal registrations, which are shown to have been made prior to this election, up to 1,829.

Upon the conduct of the election throughout the city an immense amount of testimony has been taken; but the storm center of this contest is confined to 24 precincts, in 16 of which there is practically no dispute at all as to the facts, and not much contrariety as to the facts concerning the other 8. In precinct 13 of the Ninth Ward, 25 of the Tenth Ward, and 45 of the Eleventh Ward no election whatever was held. The ballots were delivered to the Democratic clerk for each precinct, and he failed to produce them on the morning of election day. In consequence of such failure on his part, no election was held. The registration in these three precincts was as follows:

Precinct 13 of the Ninth Ward ..... 225

Precinct 25 of the Tenth Ward ..... 271

Precinct 45 of the Eleventh Ward .. 278

----

774

On the morning of election day the county clerk, Semonin, was informed by the Fusionists that the ballots in four precincts had been lost or stolen. He took steps to have them reprinted. He did thus supply one of the precincts, and the election in this precinct was regularly held, and of this there was no complaint. He was proceeding to have the other three precincts supplied in like manner, when he was informed by counsel for the Fusionists that he had no right to thus supply the ballots. The matter was then referred to Semonin's attorney, who had a conference with the attorney for the Fusionists, the result of which was that they concurred in the advice which the latter had given Semonin, and he therefore did not supply the ballots for the other three precincts. In this he was not to blame, as he acted upon the advice of counsel; but, to prevent similar confusion in the future, we deem it proper to add that the people of a district are not to be disfranchised because the ballots are lost or stolen, if they may still be supplied by the county clerk in time to hold the election.

In precinct 38 of the Third Ward, known as the "Bergman Street" precinct, the election proceeded regularly until about the time for the polls to close, when the voting place was raided by a band of armed men, the box containing the ballots carried off to the saloon of a prominent Democratic worker, and the ballots were never seen thereafter. At the time of this raid the stub book, which was all that was left showed that 187 votes had been cast.

In the following nine precincts, to wit, precinct 27 of the Sixth Ward, and precincts 18, 24, 26, 28, 32, 34, 37, and 38 of the Twelfth Ward, the regular polling place was changed, and no election held at the place which had been designated by John W. Green, acting sheriff or elisor, as the place at which the election should be held. In 8 of these precincts there was no pretense whatever made to comply with the requirements of the law as to adjourning from one voting place to another; and while a notice was prepared and directed to be posted notifying the public that the polls had been changed, in the remaining or ninth place this notice was never posted. In these removed precincts the stub books disclose the startling fact that the registered voters voted alphabetically, beginning with those whose names commenced with the letter A, and voting in regular order down to Z, or vice versa, all of the A's being voted before any B's were permitted to vote, and all of the B's before any C's, etc.; and this same character of voting is shown by the stub book to have been indulged...