Stabile v. Osborne

• Decision Date: 18 February 1949
• Citation: 309 Ky. 427,217 S.W.2d 980
• Parties: STABILE v. OSBORNE.
• Court: Kentucky Court of Appeals

217 S.W.2d 980

309 Ky. 427

STABILE v. OSBORNE.

Court of Appeals of Kentucky

February 18, 1949

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division; W. Scott Miller, Judge.

Proceeding by Dr. Vincent Stabile against Dr. Paul Osborne to determine contestee's right to hold the office of Coroner of Jefferson County following an election. From the judgment petitioner appeals.

Judgment affirmed.

Lawrence S. Grauman and Leon J. Shaikun, both of Louisville, for appellant.

Harris W. Coleman, Thomas S. Dawson, Henry L. Brooks, and S. J Stallings, all of Louisville, for appellee.

STANLEY Commissioner.

An election was held last November to fill an unexpired term in the office of Coroner of Jefferson County. The tabulation of the voting machines gave Dr. Vincent Stabile, Democrat, a majority of 31 over Dr. Paul Osborne, Republican. The totals were 67,739 and 67,708, respectively. When the count of the ballots of absentee voters had been added, the result was a majority of 119 for Dr. Osborne, and the certificate of election was issued to him. Dr. Stabile challenges the legal right to count any of these ballots. A demurrer to his petition as amended was sustained and his petition of contest dismissed.

The petition charges specifically the failure of the County Clerk and the Board of Election Commissioners to perform in the manner prescribed any of the duties imposed upon them by KRS 126.270(1, 3) relating to the handling and counting of absentee voters' ballots. On this appeal the argument is confined to the failure of both the County Clerk and a member of the Board of Election Commissioners to write their respective names on each ballot and of the Commissioners to detach the secondary stub from any of them before they were placed in the box. It is further charged that every ballot was exposed to the view of the officers and their clerical aids with the secondary stub attached, thereby revealing for whom every absentee had voted. The contestant prayed that all of these ballots be disregarded and that he be declared elected.

The original petition stated there were 529 absentee votes of which 189 had been added to the machine votes of the contestant and 340 to those of the contestee. After the expiration of the time for filing a contest or setting up new grounds, an amended petition was filed to conform to the proof. This stated the total absentee ballots to be 546 of which the contestant received 198 and the contestee 348. We need not decide the point raised by the contestee that it was error to file the amendment because it set up additional grounds of contest, since the result of the election would be the same whether the additional ballots be considered or not. Neither need we pass upon the point raised by the appellee that the petition was fatally defective because it omitted to name the voters whose ballots were challenged.

The statute covering absentee voting, KRS 126.270(1), prescribes that preparatory to counting the ballots the county clerk shall remove each ballot from the inner envelope so as not to expose how it was voted and that 'The clerk shall write his name on the back of the ballot and then hand it to one of the members of the board of election commissioners, who shall write his name on the back of the ballot, detach the secondary stub, and then place the ballot in a regular ballot box which has been provided for the purpose.'

The petition charges, as we have said, that neither officer signed any ballot. The appellant relies upon the line of cases which holds that a ballot not signed by a judge of the election cannot be counted. The general election statute KRS 118.280, prescribes that the clerk and a judge of the election shall each sign his name on the ballot at the place designated before handing it to the voter. But it further declares 'No ballot not so signed in the handwriting by one of the judges shall be counted by the canvassing board.' The courts, of course, give effect to the mandatory provision. Campbell v. Little, 251 Ky 812, 66 S.W.2d 67; Berndt v. Fitzpatrick, 300 Ky. 484, 189 S.W.2d 678. Since there is no such mandatory provision with respect to the signature of the clerk of the election, it has always been held that a ballot is not vitiated by the failure of the clerk to sign it. Courts are loath to disfranchise a voter who is wholly innocent of wrongdoing, particularly where the irregularity of an election officer is but the failure to comply with directory provisions of the statute or to follow formal steps prescribed to obtain what is of greater importance, namely, a fair election and an honest count. This has been the consistent ruling of the court. Hogg v. Caudill, 254 Ky. 409, 71 S.W.2d 1020. It is the policy of the law to prevent as far as possible the disfranchisement of electors who have cast their ballots in good faith. While the regulations and procedure prescribed in the absentee voting law should be followed by the officers, a substantial compliance is sufficient if the proper ends are reached. McArtor v. State, 196 Ind. 460, 148 N.E. 477; Talbott v. Thompson, 350 Ill. 86, 182 N.E. 784. The absentee voters statute does not declare any consequence of noncompliance with the provision as to the signing of the ballots by either of the officers except a criminal penalty. KRS 126.990. We conclude, therefore, that the failure of the officers to sign their respective names on the ballots did not invalidate them and that the petition setting forth that as a ground of contest was demurrable.

The question as to the exposure of the ballots is more serious. The secrecy of the ballot is of paramount importance. It is prescribed by Section 147 of the Constitution, which makes it the imperative duty of the legislature to enact enforcement laws. Under that requirement it was held in State Board of Election Commissioners v. Coleman, 235 Ky. 24, 29 S.W.2d 619, that a provision in a statute that a ballot should be counted although the voter had failed to detach the stub on which his name was written was unconstitutional. Since the original enactment in 1930 of what is now KRS 118.290 placing the responsibility on the voter to detach the secondary stub from his ballot in the presence of the officers of election and to deposit it in the box, we have held that his intentional omission to do so nullifies his ballot and that it should be rejected. Raymer v. Willis, 240 Ky. 634, 42 S.W.2d 918; Adams v. Letcher County, 299 Ky. 171, 184 S.W.2d 801. It is because he voluntarily disclosed how he voted. Wildick v. Ralston, 303 Ky. 373, 197 S.W.2d 261, 198 S.W.2d 56. But where a voter involuntarily or unintentionally exposes his ballot, it may be counted. Muncy v. Duff, 194 Ky. 303, 239 S.W. 49; Bentley v. Wright, 303 Ky. 618, 197 S.W.2d 420. In the present case the voters were free from fault. The allegation is that the election officers disregarded the rules laid down in the statute for preserving the secrecy of the ballot. But the statute does not say that this dereliction of duty shall result in disfranchisement of innocent voters. Apparently the requirement as to signatures is only to identify or authenticate the ballots for future consideration. The statute does not suggest any legislative intent of placing the power in these election officers to destroy the voter's right of suffrage. It should be added that nowhere is there any suggestion that the omission on the part of these officers was with any wrongful intention.

The appellant relies upon Nall v. Tinsley, 107 Ky. 441, 54 S.W. 187, 21 Ky. Law Rep. 1167; Smith v. Jones, 221 Ky. 546, 299 S.W. 170, and upon the rulings in State Board of Election Commissioners v. Coleman, supra; also upon a part of Raymer v. Willis, supra, and Adams v. Letcher County, supra.

Nall v Tinsley deals with a local option election. It was rendered not long after the Australian ballot system was inaugurated and discusses its purposes and objects. The purpose of secrecy is to permit an independent expression of the people, free from the evils of improper influences and intimidation. It was held that the use of ballots not of the thickness prescribed by the statute, but so thin as to...