Thompson v. Stone

• Decision Date: 26 March 1915
• Citation: 174 S.W. 763,164 Ky. 18
• Parties: THOMPSON v. STONE.
• Court: Kentucky Court of Appeals

174 S.W. 763

164 Ky. 18

THOMPSON v. STONE.

Court of Appeals of Kentucky.

March 26, 1915

Appeal from Circuit Court, Lawrence County.

Election contest by James H. Thompson against R. A. Stone. Judgment for defendant, and plaintiff appeals. Affirmed.

R. C McClure, Fred M. Vinson, and Cain & Thompson, all of Louisa and C. B. Wheeler, of Ashland, for appellant.

Hazelrigg & Hazelrigg, of Frankfort, Proctor K. Malin, of Ashland, and H. C. Sullivan and W. D. O'Neal, Jr., both of Louisa, for appellee.

NUNN J.

The parties to this appeal were rival candidates for the office of sheriff in Lawrence county at the November, 1913 election. Thompson was the Republican nominee and Stone the Democrat. The commissioners counted and compared the election returns and found that Stone had received 17 more votes than Thompson, and thereupon awarded Stone a certificate of election. Thompson contests and charges fraud and mistake on the part of the election officers in counting the ballots that in each precinct there were 25 illegal votes counted and cast against him; that in each precinct the votes of 25 persons were counted against him, which were cast openly or in the presence of the election officers, without the voter being required to make oath as to disability; that in each precinct 25 voters were bribed to vote against him by the use of money or whisky; that in Lower Louisa precinct the polls were kept open after 4 o'clock, and 25 votes were received after that hour, and all of them voted against Thompson. The voters were not named in any case. The contestant prayed that the ballots in each precinct in the county be recounted, and that the vote in Lower Louisa precinct be disregarded, and that the votes of all persons not legally entitled to vote, and those voting openly be deducted from the total number counted for Stone. Stone moved to require Thompson to make his petition more specific and give the names of the illegal voters and those who voted openly and without oath as to disability, as well as the names of any persons who voted in Lower Louisa precinct after 4 o'clock. Demurrer was also filed to every paragraph of the petition, and then, without waiving his motion and demurrer, Stone answered with a traverse, setting up countercharges against Thompson, but making them no more specific than the grounds set up in the petition. Thompson demurred to the answer, and, without waiving his demurrer, filed reply in which issue was joined on all the affirmative allegations of the answer. The court overruled all demurrers and all motions to make the pleadings more specific.

The contestant offered no proof as to fraud or mistake of the election officers, and no attempt was made to substantiate the allegation with reference to bribery. A mass of proof was taken by each party affecting more than 100 persons who voted in the election. The right of some to vote at all was contested, and in other cases the propriety of counting their vote was contested because they were permitted to vote without taking an oath as to physical disability. A separate case is practiced, if not pleaded, as to each of the 100 voters, but we find it unnecessary to burden this opinion with a detailed discussion of each case. While many instances are shown of irregular and illegal voting, but it is sufficient to say that after a careful consideration of the proof, we find approximately an equal number of such cases on each side. If the votes of persons so affected be deducted, the result is not changed.

Thompson tries to escape this conclusion by saying that the pleadings of Stone do not warrant any deductions from the Thompson vote--that is, the answer of Stone does not give the names of any voting for Thompson where they had no right to vote or voted illegally. But, as we have already stated, Thompson's petition is open to the same criticism, and to apply the rule to him would leave the contest just where he began it. The court should have sustained the objections made to both the petition and answer. Lunsford v. Culton, 23 S.W. 946, 15 Ky. Law Rep. 504; Tunks v. Vincent, 106 Ky. 829, 51 S.W. 622, 21 Ky. Law Rep. 475; Weller v. Meunninghoff, 155 Ky. 77, 159 S.W. 632; Horton v. Botts, 158 Ky. 11, 164 S.W. 352; Clark v. Robinson, 159 Ky. 25, 166 S.W. 801; Francis v. Sturgill, 174 S.W. 753, this day decided. While proof was heard on these questions without objection from either party, it is clear that contestant's case was not made out or sustained by either pleadings or proof.

As to Lower Louisa precinct, there is a sharp conflict in the testimony as to whether the polls were kept open after 4 o'clock. The officers were 20 minutes late in opening the polls on the morning of the election, and there is testimony to the effect that they agreed to and did keep the polls open 20 minutes after closing time. Accepting contestant's proof as establishing this fact, then it appears that 13 votes were cast at that precinct, one of whom was an officer of the election, after 4 o'clock. Of these 6 were cast for Stone and 3 for Thompson. There is no proof to show for whom the other 4 voted. It is not contended that the election officers at this precinct acted corruptly in this or any other respect. The result of the election is not changed by deducting the votes above named, and, under the circumstances, it would be an unwarrantable infringement upon the rights of the voters if this court should reject all the other votes cast in the precinct because of this irregularity.

The main question in the case, and, as we conceive, the excuse for the contest, is the right of the contestant to have the boxes opened and the ballots recounted. It seems that when the election officers brought in the returns and delivered...