Sparks v. Boggs

• Decision Date: 25 March 1960
• Citation: 339 S.W.2d 480
• Parties: E. T. SPARKS et al., Appellants, v. Dr. Eli BOGGS et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 480

339 S.W.2d 480

E. T. SPARKS et al., Appellants, v. Dr. Eli BOGGS et al., Appellees.

Court of Appeals of Kentucky.

March 25, 1960.

Rehearing Denied Nov. 23, 1960.

S. M. Ward, Hazard, for appellants.

W. E. Faulkner, D. G. Boleyn, Hazard, for appellees.

STEWART, Judge.

This is an appeal from a judgment of the Perry Circuit Court holding, albeit reluctantly on the part of the trial judge, that appellees in their race for the offices of city commissioner did not violate the Corrupt Practices Act (KRS Chapter 123) by promising certain things hereinafter specified.

Hazard, located in Perry County, is a third-class city operated under the city manager form of government. The three appellants, E. T. Sparks, Finis Marable, and George Feltner, and the four appellees, Dr. Eli Boggs, Fred Combs, R. W. Gibson and Curt Feltner, were all candidates at the regular November 3, 1959, election for the above offices. Four could be elected and the four appellees were the winners.

Appellants and one Robert Ken Terry, who was also an unsuccessful candidate for the office of city commissioner, filed on November 16, 1959, a petition in the Perry Circuit Court alleging that appellees had violated the Corrupt Practices Act and asking that the election of each of appellees be declared void and that they be adjudged as not entitled to qualify for or hold the offices to which they were elected. Terry afterwards withdraw from this action.

Appellees had formed themselves into a slate, denominating it 'The Good Government Ticket.' They had handbills printed and distributed, titled 'Honest Platform,' whereby they made seven pledges to the electorate. 'Promise No. 2' is the one which is the basis of this litigation, and by its terms they agreed (and we quote the exact statement they publicized for the consumption of the voters):

'To serve for the minimum salary of $1.00 per year and to vote for the total savings of $2,000.00 per year to be distributed as follows:

'(a) $500.00 per year, religious education program.

'(b) $500.00 per year, retarded children program.

'(c) $500.00 per year, for the purpose of beautifying the approaches to the City of Hazard.

'(d) $500.00 per year, for Little League baseball program.

(These programs are available to all citizens of Hazard, regardless of race, creed or color.)'

Under KRS 89.480(2), in respect to a third-class city, '* * * each commissioner shall receive an annual salary of not more that $500.' However, subsection (3) of that statute provides that the board of commissioners may reduce the annual salary of such an officer 'to an amount of not less than one dollar.' It is admitted the yearly salary of city commissioner of Hazard was at the time fixed at $500.

Appellants argue that appellees held themselves out as undertaking, if elected city commissioners, to render their services in such a capacity gratuitously. To back up this assertion, they call attention to the fact that, since they had promised to expend for the purposes enumerated in their 'Promise No. 2' the total sum of $2,000 each year, it is clear their intention was not to receive even the one dollar their salary possibly could have been set at under KRS 89.480(3). They contend that such an offer made to the voters by appellees, namely, to work without salary, has been held to be against the public policy of this state and within the purview of the statutes enacted to prevent corrupt practices in elections.

The question of whether a successful candidate has violated the Corrupt Practices Act cannot be determined in a suit brought by taxpayers and electors, Dietz v. Zimmer, 231 Ky. 546, 21 S.W.2d 999, but can be decided only in an election contest brought by a defeated candidate. See KRS 122.010; Judd v. Polk, 267 Ky. 408, 102 S.W.2d 325, and Young v. Jefferson County Election Commission, 304 Ky. 81, 200 S.W.2d 111.

The present petition was filed by three of the four defeated candidates. In it, however, they do not claim the offices at stake for themselves, but ask only that the election of appellees be declared void and that the latter be adjudged unqualified to hold office because of their alleged violation of the Corrupt Practices Act. In Greene v. Cawood, 230 Ky. 823, 20 S.W.2d 984, this Court ruled in effect that an election contest was in the nature of an inquiry into the purity of an election. However, in the case of Kluemper v. Zimmer, 240 Ky. 225, 41 S.W.2d 1111, hereinafter discussed in some detail, it was established that, although not claiming to have been elected himself, a defeated candidate may contest the election of his opponent on the ground that he has violated the Corrupt Practices Act.

Appellees maintain the petition is defective because appellants did not aver that the conduct complained of influenced any voters to cast their ballots for any of appellees or that the election was in any way tainted by their action in circulating the promise in controversy. However, in construing KRS 122.010 (then Ky.Stat., Sec. 1565b-11) this Court stated in Bingham v. Smith, 210 Ky. 256, 275 S.W. 811-812: 'Under this section the election of the successful candidate may be declared void for a violation of the provisions of the act, and it is not necessary to allege that the result of the election was affected by such violation.' In Dyche v. Scoville, 270 Ky. 196, 109 S.W.2d 581, 584, it was said on this point: 'We are not unmindful of the fact that we have held, in effect, that the bribery of one vote by a candidate, * * * constitutes such a violation of the Corrupt Practices Act as might deprive the candidate of his nomination, if such bribery was satisfactorily shown.'

It appearing, therefore, that this is a 'contest', brought by the proper parties and that the petition sufficiently sets forth a good cause of action, we may now consider the alleged violation of the Corrupt Practices Act. Although no specific section of that Act is relied upon, an examination of KRS Chapter 123 indicates KRS 123.040 is the provision purported to have been violated. It reads:

'No candidate for nomination or election to any state, county, city or district office shall expend, pay, promise, loan or become pecuniarily liable in any way for money or other thing of value, either directly or indirectly, to any person in consideration of the vote or financial or moral support of that person. No such candidate shall promise, agree or make a contract with any person to vote for or support any particular individual, thing or measure, in consideration for the vote or the financial or moral support of that person in any election, primary or nominating convention, and no person shall demand that any candidate make such a promise, agreement or contract.'

The trial court, in its opinion, held that this lawsuit must follow and be governed by the law laid down in Owsley v. Hill, 210 Ky. 285, 275 S.W. 797, although as already noted the trial judge...