Skain v. Milward

• Decision Date: 21 April 1910
• Citation: 138 Ky. 200,127 S.W. 773
• Parties: SKAIN v. MILWARD.
• Court: Kentucky Court of Appeals

127 S.W. 773

138 Ky. 200

SKAIN v. MILWARD.

Court of Appeals of Kentucky.

April 21, 1910

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Election contests by W. R. Milward against John Skain, by Alan P Gilmour against Wallace Muir, by John L. Stephanski against John W. Masner, and by R. J. McMichael against John F. Doyle. From a judgment for contestants, contestees appeal. Reversed and remanded.

S. M Wilson, Geo. S. Shanklin, McQuown & Beckham, A. J. Carroll G. Allison Holland, and Geo. C. Webb, for appellants.

Shelby & Shelby, Falconer & Falconer, D. Gray Falconer, Butler T. Southgate, and Charles Kerr, for appellees.

HOBSON J.

At the election held on November 5, 1907, in the city of Lexington, appellant John Skain and appellee W. R. Milward, Sr., were candidates for mayor; appellant Wallace Muir and appellee A. P. Gilmour were candidates for city attorney; appellant John F. Doyle and appellee R. J. McMichael were candidates for city assessor, appellant John L. Stephanski and appellee John W. Masner were candidates for city jailer, as the nominees respectively of the Democratic and Republican parties. On the face of the returns Skain received a majority of 628 votes, Muir, 778, Doyle, 754, and Masner, 812. Their election was contested by their opponents. A large mass of evidence was taken. On the submission of the case to the circuit court it was not insisted that the contestants were elected to the offices for which they were candidates, but it was insisted that there had been such fraud, intimidation, bribery, or violence in the conduct of the election that neither contestant nor contestee could be adjudged to have been fairly elected. The circuit court sustained this contention, adjudging that there had been no election. The contestees appeal.

The allegations of the petition here are much the same as in Scholl v. Bell, 125 Ky. 750, 102 S.W. 248, 31 Ky. Law Rep. 335. In that case, as shown by the opinion, no election whatever was held in three precincts; in one 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 ballot box was carried off, and was never seen thereafter. In nine precincts no election was had at the place at which the election should be held. In eight of the 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 in the ninth a notice was prepared, but was never posted. In these removed precincts the registered voters were voted in alphabetical order from A to Z; the regular Republican officers of election being denied the right to anticipate, and the returns being so grossly false as to show the bungling manner adopted by the officers to defeat the will of the people. In another precinct the election proceeded regularly until the polls closed, when an inspector seized the ballots and threw them in the fire. In still another, while the ballots were being counted, a band of men rushed into the room, knocking the Republican sheriff down, overturning the stove, and scattering the ballots from the table to the floor. Before order was restored, another crowd gathered up the ballots and ballot box and carried them away. In another precinct, before the count was finished, the officers were driven from the room, and a clumsy forgery was substituted for their return. In still another precinct the Republican sheriff of election was arrested, the Republican challenger was denied access to the polls, the Republican judge was assaulted and dragged from the room, and fraudulent returns made. There were in all 24 precincts in which, from the causes mentioned, there were no valid returns. Nothing of that sort occurred in this case. At every precinct there were two Democratic officers and two Republican officers. They acted harmoniously; there being no difficulty in any precinct between the officers of election, and none of them being interrupted in the discharge of their duties. The challengers and inspectors of the respective parties acted without molestation, and there was no difficulty between them. After the polls were closed the ballots were all quietly counted, and the result duly certified. There is not in the record any intimation that the count was not regularly and properly made, or that it was incorrect in any respect. In the afternoon paper, which issued at 5 p.m. on the day of the election, the organ of the contestants, it was stated that the police and firemen were not displaying the activity they had usually shown in former elections, and that for the first time in years in elections in the city the sheriffs of election on duty at the various polling precincts were exercising their rightful authority, that apparently the election was one of the quietest and most orderly held in Lexington for years, and that the best citizens were at the polls to see that a square deal was had. The polls closed at 4 o'clock, but the article was prepared before the close of the polls, although the paper came out afterwards. The same paper contained an authorized statement by appellee Milward, in these words: "I am greatly pleased with the outlook, and if the orderly conditions prevail all day, and we get a fair count, we will win by a safe majority." The statements of this paper as to the quietness and orderliness of the election are confirmed by the testimony of the reporter, who went around to the different polls before writing the article, and by the testimony of a number of reporters or other persons who went around from poll to poll in like manner. The evidence on this subject is practically uncontradicted. It comes from the election officers, and from the men about the polls in every walk of life. At Asylum precinct, which is one of those now complained of, appellee Milward said everything was coming as fine as could be, and things were going off nicely; that he was glad to see it that way, and he hoped they would win, and there would be no trouble; at another precinct, now also complained of, the leading Republican said after the close of the polls he was very much pleased at the way things went on at the election; at another, that things were as fine as silk; and one of the witnesses summing up the matter says that the election officers ran the election as high-toned gentlemen manage things. The officers of election appear to have been men of character, and to have deserved this encomium. They all appear to have tried to do their duty faithfully and impartially. There is complaint by the friends of contestants as to some of the clerks, and by the friends of contestees as to some of the sheriffs, but the harmony which prevailed among the officers and the facts established by the proof show they were trying to do the best they could under the circumstances in which they were placed.

Section 1596A, subsec. 12, Ky. St., among other things provides: "In case it shall appear from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be adjudged to have been fairly elected, the circuit court, subject to revision by appeal, or the court of appeals finally may adjudge that there has been no election. In such event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify."

The things complained of are these: 1. In June, before the election, the judge of the Fayette county court made an order redistricting the city of Lexington, and dividing it into 23 precincts. As shown by the registration which was subsequently taken, in 16 of these precincts there were more than 350 registered voters, and in 4 of them there were more than 500. It is earnestly maintained that this action of the county judge, who was a Democrat, was a part of a conspiracy to prevent a fair and free election, and that it had this effect. The facts in regard to the reapportionment are these: The boundary of the city of Lexington had been extended by the annexation of territory lying around the city. The old boundary was a circle, having a diameter of about two miles; the territory annexed lay all around the city. The old boundary of the city had for years been divided into 20 precincts. At the last Presidential election there were polled in the city of 5,415 votes. Dividing this by 20 they made each precinct to contain on an average about 270 votes. The new territory was estimated to contain 800 votes, and so the county judge concluded that three additional precincts were all that were necessary. He so divided the city into 23 districts, and, after he had made his tentative division, submitted it to a number of people, before it became final. The statute regulating the size of precincts is as follows: "Each precinct shall contain as nearly as practicable, three hundred voters, based on the number of votes cast at the last election for Presidential electors; but no precinct shall contain more than three hundred and fifty voters. If at any election hereafter held more than three hundred and fifty votes shall be cast at any voting place, it shall be the duty of the sheriff of the election in such precinct to report the same to the county court, which shall at its next regular term, divide such precinct as equally as possible, so that the new precincts formed thereof shall each contain three hundred voters, as nearly as practicable."

It will be observed that the size of the precinct under the statute is made to depend, not on the number of voters in fact in the district, but on the votes cast at the last election for Presidential electors. The fact there were only 20 precincts in the...