State Board of Election Com'rs v. Coleman

• Decision Date: 20 June 1930
• Citation: 29 S.W.2d 619,235 Ky. 24
• Parties: STATE BOARD OF ELECTION COM'RS et al. v. COLEMAN et al.
• Court: Kentucky Court of Appeals

29 S.W.2d 619

235 Ky. 24

STATE BOARD OF ELECTION COM'RS et al. v. COLEMAN et al.

Court of Appeals of Kentucky

June 20, 1930

Appeal from Circuit Court, Franklin County.

Suit by J. W. Harvey against the State Board of Election Commissioners and by C. T. Coleman against J. B. Nash, County Clerk of Franklin County. The two suits were consolidated and, from the judgment, defendants in the consolidated action appeal.

Judgment affirmed in part, and in part reversed, with directions.

J. W Cammack, Atty. Gen., Jas. M. Gilbert, Asst. Atty. Gen Marion Rider, of Frankfort, and John E. Shepard, of Covington, for appellants.

Mann & Vincent, of Ashland, and L. M. Morancy, of Versailles, for appellees.

THOMAS C.J.

At its 1930 session the General Assembly enacted Senate Bill No. 414 (chapter 49). It contained no emergency clause, and under section 55 of our Constitution it did not take effect until 90 days after the adjournment of that body, which was on March 20, 1930, and the effective date of the act would be June 18, 1930. The title of the act, which will hereinafter be referred to as the new act, as well as its body, attempted to repeal and re-enact sections 1468, 1472, 1481, 1482, and 1483, of the 1922 and 1930 editions of Carroll's Kentucky Statutes, and to create and enact an independent section, designated therein as section 1483a, all of which pertained to the holding and conducting of both primary and general elections in this commonwealth. The newly enacted section 1468 prescribed that county court clerks should provide the ballot boxes for their respective counties, the expenses so incurred to be paid by the fiscal court of the county, instead of their provision by the sheriff as was prescribed by the old section 1468. The new section also provided for a differently constructed ballot box with additional locks and means of safety whereby the ballots as cast could be preserved until they were counted and certificates made of the election in the manner provided for by the amended and re-enacted section 1482 in the new act.

Section 2 of the new act, and which was the amended section 1472 of the old act, made a change in the method of handling and depositing the ballots by the voters in the ballot box after he had stamped his ballot, and requiring that the box should be located in plain view of the officers of the election but not nearer to them than fifteen feet (which was the same distance prescribed for the location of the voting booths), and that the voter, after stamping his ballot and folding it, should tear from it the secondary stub and himself deposit it in the ballot box in view of the officers, and which was in lieu of the officer depositing the ballot and tearing off the secondary stub as contained in the old section 1472 before it was so amended.

Section 3 of the new act only prescribed for the appointment of challengers and inspectors by the executive committees of political parties having candidates to be voted for; while section 4 of the new act, amending and re-enacting the old section 1482 of our Statutes, prescribed an entirely new method of counting the ballots and certifying the result of the election. Under the old section, the count was made by the officers of the election at the close of the polls with certain prescribed duties of such officers relating to the making of certificates, conveying the ballot boxes to the county court clerk, and others not necessary to mention. The section as amended by the new act prescribes, in substance, that the officers of the election at its close shall lock the vent lid to the box (which is a prescribed covering for the aperture through which the ballots are deposited in the box) and return that key to the county court clerk with the box, and also the prescribed sealed envelop for unused ballot stubs, etc., as provided for in the old section to be delivered to the county court clerk who under the statute has a key to one of the locks to the ballot box lid, while the county election commissioners of the two dominant political parties each have one of the other two keys. The election commissioners, under the new act, are required to meet the first week day after the election at 10 o'clock a. m., and proceed to unlock the boxes and count the ballots and make the certification thereof, according to the form prescribed in the new act. Certain inspectors, attorneys, friends, and guardsmen, so to speak, are also provided for by the new act in its section 5, and which is the amended and re-enacted section 1483.

Section 6 of the new act contains the entire newly enacted section 1483a, and it says. "It is hereby made the duty of the state election commission to adopt and agree upon a uniform designed metal ballot box to be used in all the election precincts of this Commonwealth which shall conform to specifications set out in section 1468 herein. It shall be the duty of said state election commission to contract for the manufacture and construction of said boxes, including locks and keys therefor, and shall notify each county clerk of the adoption and specifications set out herein, giving him the price per box and the name and address of the contractor where said boxes may be secured, and it shall be the duty of each county clerk to procure said boxes from said contractor in sufficient number to accommodate all the precincts in his county. The county clerk shall be the custodian of said ballot boxes and shall exercise due diligence in caring for, and preserving said boxes, locks and keys."

The first of these consolidated equity actions was filed in the Franklin circuit court by appellee J. W. Harvey against the state board of election commissioners, as a citizen and taxpayer of the commonwealth and of Boyd county, Ky. and also as an unsuccessful bidder at the letting for the construction of the newly provided for ballot boxes, as prescribed in section 6 of the new act, and to be section 1483a of the Kentucky Statutes. Later the successful bidder at that letting was by amendment made a party defendant to that action, and it will hereinafter be referred to as the Harvey Case. Later the appellee C. T. Coleman a citizen and taxpayer and resident in both the commonwealth and Franklin county, filed an action against J. B. Nash, county court clerk of Franklin county, and the successful bidder at the letting above mentioned, and which action we will hereinafter refer to as the Coleman Case. They were later consolidated, followed by the rendition of the judgment in the Franklin circuit court that is questioned by this appeal.

The plaintiff in the Harvey Case sought to enjoin the state board of election commissioners, and the successful bidder at the letting of the bid for the construction of the ballot boxes, from carrying out that contract upon the two grounds that (a) plaintiff's bid was the cheaper of the two to the extent of some fifteen or twenty thousand dollars for the entire number of ballot boxes to be constructed thereunder, and that the election board abused its discretion in awarding the bid to the successful bidder; and (b) that the contract for the construction of the ballot boxes was invalid because made and executed before the new act took effect. There was no prayer for a mandatory order requiring the election board to accept plaintiff's bid. The plaintiff in the Coleman Case prayed that the entire new act be declared invalid, null, and void as violative of sections 6 and 147 of our Constitution providing for the secrecy of the ballot, and which is necessarily confined to section 2 of the new act and constituting the future section 1472 of the Kentucky Statutes relating to the method of voting and the depositing of the ballot in the ballot boxes by the voter; it being claimed that the provisions in that section for the voter to deposit his ballot in the ballot box at least 15 feet away from the election officers prevents the latter from detecting fraud, and also that the section is invalid and for which reason it invalidates the entire act because it is therein provided that, if the voters should fail to detach from his ballot the secondary stub before depositing it in the ballot box, it would not disqualify that ballot, but that it should be counted in the final certification of the result of the election. It was also claimed in the Coleman Case that the providing for the ballot boxes by the county court clerk would entail a useless expense on the county, not only because the entire act was invalid, but also because the Legislature had no right to provide for the creation of a debt against the counties for the purchase price of the newly arranged ballot boxes provided for by the new act, and perhaps for other reasons less meritorious.

In addition thereto, plaintiff in the Coleman Case sought to enjoin the county court clerk, if the new act was held constitutional, from purchasing more than one ballot box for each voting precinct in primary as well as in general elections, since it was contended that section 1550--17, prescribing a separate ballot box for each political party entitled to participate in a primary election, was impliedly repealed by the new act, it being contended that the new act prescribed for only one box for each separate precinct in the county to be used in both primary and general elections. It was also prayed that the county court clerk be enjoined from providing more than one set of three keys for the three locks to the lid of each ballot box, each key fitting the corresponding lock on each of the boxes; it being also alleged that the county court was threatening to purchase a set of three keys for each ballot box in the county.

Special and general demurrers were filed to the petition in each case, and, without waiving them,...