Taylor v. Weir

• Decision Date: 02 October 1913
• Citation: 159 S.W. 646,155 Ky. 72
• Parties: TAYLOR v. WEIR. d
• Court: Kentucky Court of Appeals

159 S.W. 646

155 Ky. 72

TAYLOR v. WEIR. d

Court of Appeals of Kentucky.

October 2, 1913

Appeal from Circuit Court, Daviess County.

Primary election contest by E. P. Taylor against James Weir. From a judgment in favor of the latter, the former appeals. Affirmed.

W. E. Aud, W. S. Morrison, Geo. W. Jolly, and L. P. Tanner, all of Owensboro, for appellant.

Miller Sandidge & Malin, and Clarence M. Finn, all of Owensboro, for appellee.

CARROLL J.

The appellant, Taylor, and the appellee, Weir, were contending Democratic candidates for the office of county clerk of Daviess county at the primary election held on August 2 1913. At this election it appeared from the canvass of the returns made by the election commissioners that Weir received a majority of the votes, and accordingly on August 8th the certificate of election was issued by the commissioners to Weir.

On August 11th Taylor had executed on Weir a notice of contest warning Weir to answer on August 15, 1913, in which he stated, as his grounds of contest: That the officers of election in various named precincts had certified that Taylor received less votes than he did, and that Weir had received more votes than he did. That a large number of illegal votes were cast for Weir at each voting precinct in the county. That as many as 700 persons were permitted to vote at the election who were not entitled to vote, and that at certain precincts, which were named, the officers of election refused to permit persons who were entitled to vote to vote for Taylor. That fraud was practiced by Weir and persons acting for him in the publication and circulation on the day before the election of a false and scandalous circular, containing the affidavit of one Mosely, which affidavit and circular influenced a large number of voters to vote against Taylor and for Weir who, except for this, would have voted for Taylor. That bribery was practiced on the part of Weir "in the payment of money for votes and by the promises made to numerous voters in said county by you and your supporters and agents, that J. T. Griffith, collector of internal revenue for the Second district of Kentucky would use his influence to secure the appointment of said voters to positions of profit in the revenue service of the United States under the said J. T. Griffith and to other governmental positions on the condition that the said voters voted for and supported you in said election for said nomination, and which influenced more than 100 legal voters to cast their said votes for you and against me for said nomination at said primary election."

In the response to a rule to make the allegations of his notice more specific, Taylor set out the names of a number of illegal voters who voted in the primary, and also said: "The contestant says, in response to so much of said ruling as requires the contestant to state the name or names of persons bribed by contestee by the payment of money or otherwise for their votes in said election, that he is at present unable to state the names of any of such persons; but he says on information and belief that a large number of the votes cast for contestee in said election were induced to do so by bribery of the contestee and his agents, and that this is true in each of the 41 voting precincts in Daviess county."

On August 15th, the day specified in the notice, Weir filed his answer, in which, after controverting in detail the notice as well as the response to the rule, he set up as grounds of counter contest: That the election officers in one precinct by mistake returned a less number of votes for him than he received. That in another precinct the officers wrongfully refused to count for him the votes of certain named persons. That in other precincts, naming them, a large number of Republicans and other persons not entitled to vote, naming them, were permitted to and did vote for Taylor.

On August 18th, Weir filed a reply, traversing in detail all the averments of the counter notice of contest set up by Taylor.

On August 28th, and after more than 10 days had elapsed from the date of the service of the notice upon Weir, Taylor tendered an amended or supplemental notice of contest, in which he set out that on July 20, 1913, Weir entered into a written contract with Guy Aull, a citizen and resident of Knottsville precinct, which contract provided in substance that Aull should exert himself to secure as many votes for Weir as he could, and that Weir, if elected, should employ Aull as a deputy at $75 per month, and it was averred in this notice that, influenced by the terms of this contract, Aull procured more than 50 persons to vote for Weir who, except for this contract and Aull's exertion, would have voted for Taylor. But the court refused to permit this additional ground of contest to be filed.

After the evidence relied on by the respective parties had been taken, the case was submitted, and all the ballot boxes were opened in the presence of the court, the litigants, and their attorneys, and the ballots recounted. On a recount of the ballots, the votes cast for each of the parties were found to be substantially the same as that reported by the election officers, and the court, after considering the evidence found that Weir had received 2,675 votes and Taylor 2,632 votes, and thereupon adjudged that Weir had received the nomination, and directed that his name be placed on the ballot as the candidate of the Democratic party for the office of county...