Varney v. Justice

• Citation: 86 Ky. 596,6 S.W. 457
• Parties: VARNEY v. JUSTICE.
• Decision Date: 24 January 1888
• Court: Court of Appeals of Kentucky

6 S.W. 457

86 Ky. 596

VARNEY v. JUSTICE.

Court of Appeals of Kentucky.

January 24, 1888

Appeal from circuit court, Pike county.

Connelly & Cline, for appellant.

A. J Auxier, J. M. York, and J. L. Ferguson, for appellee.

BENNETT J.

At the August election, 1886, the appellant and appellee were opposing candidates for the office of jailer of Pike county Kentucky. It is agreed that the officers of the election for precinct No. 6 in said county were legally appointed and duly qualified to hold and conduct the election in said precinct that they met at 6 o'clock in the morning of the day designated by the constitution of the state for the purpose of holding said election, and immediately entered upon the discharge of their duties; that they held the election without intermission from 6 o'clock in the morning until 7 o'clock in the evening; that at the hour of 7 o'clock, a considerable number of the legal voters of the precinct who had been at the polls nearly all day wishing to vote, had not voted, because the officers of the election could not record their votes between the hours above named; that the officers of the election, in order to accommodate these voters, kept the polls open from 7 o'clock in the evening until 9 or 10 o'clock that night, during which time they received and recorded the names of 25 voters of the precinct, all of whom voted for the appellant. These 25 votes were counted for the appellant, by the aid of which he was declared elected to the office of jailer; but for the aid of these votes, the appellee was elected to the office of jailer. In a word, at the hour of 7 o'clock in the evening the appellee had received a majority of the legal votes cast in the county for the office of jailer. The appellee contested the appellant's right to the office upon the ground that these 25 votes cast for the appellant after 7 o'clock in the evening were illegal votes and should not have been received or counted, because they were cast without the hours prescribed by the constitution of the state. The circuit court sustained the appellee's contention, and awarded the certificate of election to him. From that judgment the appellant has appealed to this court.

This court has held, time and again, (and recently in the case of Anderson v. Winfree, 4 S.W. 351 from Christian county,) that where the election has been held within the hours fixed by the constitution of the state, and at the place designated by law, mere irregularities in appointing the officers of the election, or mere irregularities in the proceedings of the officers of the election, will not vitiate the poll; nor will such irregularities be permitted to disfranchise, for the time being, a legal voter voting at such an election, unless such irregularities affect the real merits of the case. This court has announced the foregoing doctrine upon the ground that the appointment of the officers of the election, and the manner of their conducting it, are regulated by statute; and, in order that the legal voter may be protected, and not disfranchised for the time being, by mere irregularities in the appointment of the election officers, or mere irregularities in the proceedings of the election officers, the statute authorizing their appointment and prescribing the manner in which they shall conduct the election must be...