Whitney v. Skinner

• Decision Date: 19 May 1922
• Citation: 241 S.W. 350,194 Ky. 804
• Parties: WHITNEY v. SKINNER.
• Court: Kentucky Court of Appeals

241 S.W. 350

194 Ky. 804

WHITNEY v. SKINNER.

Court of Appeals of Kentucky.

May 19, 1922

Appeal from Circuit Court, Christian County.

Election contest by J. T. Whitney against T. G. Skinner. From a judgment declaring neither party elected, contestants appeal. Affirmed.

O. H Anderson and J. T. Whitney, both of Hopkinsville, for appellant.

J. C Duffy, James Breathitt, Jr., and T. G. Skinner, all of Hopkinsville, for appellee.

HURT C.J.

This action involved the question of whether the appellant or appellee, or either, was elected to the office of city prosecuting attorney of the city of Hopkinsville at the regular November election, 1921, for the ensuing term of four years. The circuit court decided that neither was elected and as a result that the office was vacant. The appellee conceded the judgment of the court to have been correct, but the appellant, being dissatisfied with the decision, has appealed.

Hopkinsville is a city of the third class, and more than one year previous to the election in 1921 had adopted the commission form of government, and had organized under the provisions of the act which controls that form of government in a city of the third class, and had for some time been proceeding under that organization. The act referred to is embraced by section 3480b1 to section 3480b29, inclusive, Ky. Stats., 1922 Ed. Ten days before the November election in 1921 the appellee filed a petition of 20-odd voters nominating him for the office with the clerk of the county court, and that official caused his name to be printed upon the ballots to be used in the city election as a candidate for the office, and provided also on the ballot a blank line under the designation of the office with a square opposite, as in ballots used in the general elections. At the election 1,385 electors stamped a cross mark in the square opposite to the printed name of appellee, and 76 electors wrote the name of appellant in the blank line upon the ballots under the designation of the office of city prosecuting attorney, and stamped a cross mark in the square opposite to the written name. The election commissioners certified the election of appellee, over the protest of appellant, and the latter then brought this action contesting the election of appellee. Appellant alleged that he, only, had received any legal votes for the office; that the name of appellee was illegally upon the ballots as a candidate, because he had not been nominated in the primary provided for by section 3480b6 on the third Saturday before the day of the regular election, and that his nomination by petitioners only 10 days before the election did not authorize his name to be printed upon the ballots, and hence the votes cast for him were void, according to the principle announced in Parrish v. Powers, 127 Ky. 164, 105 S.W. 391, 32 Ky. Law Rep. 125, Edwards v. Loy, 113 Ky. 746, 68 S.W. 1091, 24 Ky. Law Rep. 545, and King v. McMahan, 179 Ky. 536, 200 S.W. 956. While he invoked the provisions of section 3480b6, Ky. Stats., which provides that under the commission form of government no one shall be elected to an office without first having been nominated at the primary held for that purpose, as a reason for the invalidity of the votes cast for appellant he insisted that its provisions did not apply to him, as he was not a candidate or applicant for the office, within the meaning of that statute. He further insisted that, if it should be held that section 3480b6, supra, did not apply to the candidacy of appellee, and that he was entitled to have his name printed upon the ballots, as provided by section 1453, Ky. Stats., that the petition for that purpose, and as contemplated in the latter statute, was not filed as much as 45 days before the election, as provided by section 1456, Ky. Stats., and hence it was unlawful to place his name upon the ballots.

These contentions seem to be sound. In Wood v. Deatherage, 185 Ky. 418, 215 S.W. 198, it was held that the amendment of 1918 requiring a petition to be filed with the clerk of the county court 45 days before the election did not apply to candidates for municipal offices, and a filing of 15 days prior to the election was sufficient to entitle the name to be placed upon the ballots, but in this instance the petition of appellee was filed with the clerk only 10 days before the election, and hence the votes counted for him were void. The section of the statute that requires a petition, under section 1453, supra, to be filed with the clerk of the county court 15 days before the election is mandatory, and, unless such is done, the printing of the name of the applicant upon the ballots is unauthorized. Justice v. Justice, 184 Ky. 130, 211 S.W. 419; Brodie v. Hook, 135 Ky. 87, 121 S.W. 979; Daniel v. Blankenship, 177 Ky. 726, 198 S.W. 48; King v. McMahan, 179 Ky. 536, 200 S.W. 956.

Where the commission form of government has been organized in a town of the third class, the clerk of the county court has no authority to have printed on the ballots to be used in the city election any names except those certified to him by the election officers as having been nominated in the primary, wherein candidates may be nominated for the offices on the third Saturday preceding the general election. Hence, under that statute the clerk would be entirely without authority to print the name of any one upon the ballots not nominated at the primary, and the placing of it on the ballots was illegal and unlawful.

The appellee, while conceding that he was not legally elected, and that the votes apparently cast for him could not be lawfully counted for him, contends that, the appellant not having been nominated at the primary held for the nomination of candidates in the city, under the commission form of government, and his name never having been certified to the county clerk as having been nominated, the clerk was not authorized to put his name upon the ballots, and that no one was authorized so to do, and hence that any votes cast for the appellant by the elector writing his name upon the ballot and stamping his choice in a square opposite his name was illegal and unauthorized, and therefore such a vote was void, and relies for support of his contentions on the provisions of section 3480b6, supra, and Herman v. Lampe, 175 Ky. 109, 194 S.W. 122.

One who by a contested election seeks to have himself adjudged elected to an office must show his own election to the office. The fact that his adversary was not elected will not dispense with the necessity of proving his own election to make a recovery, and, although he is not able to prove his own election, he may show that his adversary was not elected. Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753. The question thus to be decided is whether the 76 votes which the appellant received at the election are sufficient to entitle him to recover the office. If these votes were illegal, they could not be counted for him, and hence he would be in the same condition as the appellee, who had 1,385 illegal votes counted for him.

The Legislature is authorized to prescribe the qualifications of municipal officers, and an individual must possess the prescribed qualifications to be eligible to hold the office, that is he must possess the statutory qualifications, and eligibility, as relating to statutory or constitutional qualifications, is not a subject strictly for determination in a contest as to who has been elected to office under section 1596a12, Ky. Stats. Wilson v. Tye, 122 Ky. 508, 92 S.W. 295, 29 Ky. Law Rep. 71; Nichols v. Pennington (Ky.) 118 S.W. 382; Adams v. Roberts, 119 Ky. 364, 83 S.W. 1035, 26 Ky. Law Rep. 1271; Francis v. Sturgill, supra.

In the latter case a distinction was, however, drawn between the eligibility required to entitle one to hold an office and the eligibility to entitle one to be voted for or be a candidate for the office. If one has not the constitutional or statutory qualifications to hold an office, such fact would shed no light upon the question whether or not he has been elected, and, if such person is inducted into the office, his right to hold it may be inquired into, as provided by title 10, c. 13, Civil Code. If, however, a person has the statutory or...