Young v. Jefferson County Election Commission

• Decision Date: 21 February 1947
• Parties: Young v. Jefferson County Election Commission et al.
• Court: United States State Supreme Court — District of Kentucky

304 Ky. 81

Young v. Jefferson County Election Commission et al.

Court of Appeals of Kentucky. Chancery Branch, First Division.

January 24, 1947.

As Modified on Rehearing February 21, 1947.

1. Elections. — Under section 125.200, declaring that general law applying to elections applies to those conducted by voting machine except as modified by statutes relating to voting machines, the omission from section 125.190, relating to checking and recanvass of returns of voting machines, of the requirement for posting a bond appearing in section 122.100, relating to recount of ballots, does not bring such bond requirement into operation but requires application of section 118.450, declaring that cost of all elections must be paid by county except as otherwise provided by law. KRS 118.370, 118.380, 118.450, 122.100, 123.070, 125.060, 125.150, 125.190, 125.200.

2. Elections. — In an election where voting machines are used, where a candidate within 96 hours after close of polls in writing requests county election commission to check and recanvass voting machines, county commission must do so immediately and make a proper return to county court clerk, which return becomes the official return unless adjudicated otherwise by a court of competent jurisdiction, and the cost of such procedure must be borne by county. KRS 118.450, 125.060, 125.190, 125.200.

3. Elections. — Candidate's failure to file a pre-election statement of contributions and expenditures did not forfeit her right to be voted for, and such failure could only be raised in an election contest by some other candidate. KRS 122.010, 123.070.

4. Elections. — The county election commission has no authority either to charge a candidate with, or adjudge him guilty of, violating the Corrupt Practices Act, or to inquire into a candidate's eligibility for office, although it must withhold delivery of a certificate of election until successful candidate has complied with law regarding the filing of expense statements required by Corrupt Practices Act. KRS 122.010, 122.100, 123.090.

5. Elections. — Unless a candidate has filed the statements required by Corrupt Practices Act, the county election commission must withhold a certificate of election until time for filing a contest of election shall have expired, and, if such time elapses and no contest has been filed, commission must then deliver certificate to successful candidate. KRS 122.010, 122.100, 123.090.

6. Mandamus. — In mandamus to compel county election board to check and recanvass voting machines, court had no authority, even on admission of plaintiff, to adjudge that her pre-election statement was not filed in time and that she forfeited her right to be regarded as a candidate. KRS 122.010, 122.100, 123.070, 125.060, 125.190.

7. Mandamus. — Court could not deny mandamus to compel county election board to check and recanvass voting machines on the petition of a candidate who admitted violation of Corrupt Practices Act by failing to file pre-election statement of contributions and expenses merely on the pre-supposition that if recanvass established candidate to be the victor, a rival candidate would maintain a contest. KRS 122.010, 122.100, 123.070, 125.060.

8. Mandamus. — Where petition in equitable suit for mandatory injunction was styled as a common-law action for mandamus and on defendant's motion all allegations in petition with respect to inadequacy of a remedy at law and irreparable injury were stricken, and all parties regarded action as one for mandamus against public officers to require them to perform a duty imposed by law, notwithstanding that case was tried in chancery, defendant could not claim that plaintiff should be denied relief because of existence of an adequate remedy at law.

9. Injunction; Mandamus. — Either mandamus or mandatory injunction will lie to compel public officers to perform duty imposed on them by law.

Appeal from Jefferson Circuit Court.

Charles W. Anderson, Benjamin F. Shobe and Harris W. Coleman for appellant.

Samuel Steinfeld for appellee.

Before Lawrence F. Speckman, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

Hortense Young was a candidate for one of the three offices of member of the Board of Education of Louisville at the 1946 election. Her name had been placed on the labels of the voting machines, which are used exclusively in Louisville. KRS 125.060. By the canvass and returns of precinct election officers (KRS 125.150) it was shown that four other candidates had severally received more votes than Mrs. Young. Within the 96 hours stipulated in KRS 125.190, Mrs. Young, in writing, requested the County Election Commission to check and recanvass the voting machines in all precincts. The Commission refused on the ground that the candidate had not secured the cost by a bond. Thereupon this action was filed against the members of the County Commission to require them to do so. They defended upon two grounds. One is the original reason, that no bond had been executed. The other is that the plaintiff had not filed a statement of contributions, expenditures, etc., before the day of election, as required by KRS 123.070, and by reason of that failure the plaintiff had ceased to be a candidate and was not entitled to have the check and recanvass which she requested. The plaintiff, by reply, admitted that she had not filed the pre-election statement prior to the election day, but alleged that she had filed it and a post-election statement on November 12th, seven days after the election. Upon demurrers to the two defenses and to the reply, the court adjudged the plaintiff not entitled to the relief sought.

Unlike the statute relating to the recount of ballots, KRS 122.100, the statute relating to checking and recanvassing returns of voting machines by the County Election Commissions does not say that the candidate who requests it shall execute a bond for the cost. KRS 125.190. The voting machine statute provides that the general law applying to all elections shall apply to those conducted with the use of machines, "Except as modified by this chapter." KRS 125.200. The question is whether the omission as to the payment or securing of the cost is a modification of KRS 122.100 requiring the posting of a bond for the recount of ballots, or whether the omission was intended to bring into this chapter the provision of the statutes that the cost of all elections shall be paid by the county, except as otherwise provided by law. KRS 118.450. It seems to us that where machines are used, when this stage is reached in the process and we consider the purpose of the recanvass, together with the factor of labor involved (both in character and amount), we must construe the statute as not requiring the execution of a bond or payment of the...