Widick v. Ralston

Opinion op the Court by Judge Dawson Affirming. A local option election was held in Bell County on May 26, 1945. The final returns showed that prohibition carried by 186 votes. On June 4, 1945, Fred Silban eh demanded a recount by the Board of Election Commissioners, and such recount reduced the majority in favor of prohibition to 153 votes. On June 23, 1945, J. K. Ralston instituted this contest proceeding on the ground that in certain named precincts votes in favor of prohibition were cast by persons' who had no right to vote where they did, or had no right to vote at all. The nominal defendants in the action were the sheriff and the members of the Board of Election Commissioners. These defendants filed a formal answer to the petition and within the proper time the appellants intervened in the action filing various motions, a general demurrer, and later an answer and counter contest. After the 30 day contest period had expired plaintiff offered three amended petitions. The intervenors likewise offered amendments to their answer and counter contest. These intervenors represented the cause of prohibition and the real controversy is, of course, between plaintiff below and the intervening petitioners. After the issues were made up much proof was taken, and upon submission the lower court found that a sufficient number of illegal votes had been cast in favor of prohibition to establish that prohibition had been repudiated by a majority of 44 votes. The intervenors appeal, and as grounds for reversal urge that: 1. The petition was fatally defective and the demurrer should have been sustained. 2. Plaintiff had no right to amend the original petition after the contest period. 3. The contest is barred by the recount proceedings instituted by 'Silhanek. *377 á. The court erred in considering in contest the names of certain voters who were not named in the petition but were listed in the intervenors counter contest proceeding. 5. It was error to refuse to permit the intervenors to withdraw the names of certain voters from the court’s consideration. 6. The judgment of the court as to the illegality of various votes in favor of prohibition was generally erroneous on the theory that the evidence, as a whole, establishes such fraud and collusion as to authorize the court to ignore the actual testimony of the various persons whose votes were challenged, and the evidence fails to support the findings of fact made by the chancellor. 7. The challenges of a number of votes in the counter contest proceeding were sustained by the evidence, although the lower court found to the contrary. The appellee was granted a cross-appeal and is complaining that: 1. The' lower court was in error in refusing to permit him to file ah amendment to his original petition listing additional illegal voters. 2. There was intimidation in one of the precincts of such nature as to void the election in that precinct. 3. The court erred in refusing to take into consideration two votes in favor of prohibition which he claims to have successfully challenged. These various complaints will be considered in the order named: 1, 2. Appellants’ complaints one and two may. be considered together. Plaintiff’s original petition is paragraphed as to precincts and in each of such paragraphs it is alleged in substance that certain voters cast illegal votes, or voted illegally, in favor of prohibition. In each such paragraph a list of the alleged ineligible voters is given, but .there was no allegation as to the reason for the ineligibility of the voter or the illegality of the votes. In each instance these allegations are followed by a general allegation that in the particular precinct mentioned in the paragraph there were numerous other illegal votes *378 cast and that an amendment would later be filed furnishing the names of such illegal voters. After the contest period had expired plaintiff below offered an amendment which stated with particularity the reason for the illegality of each vote challenged in the original petition. In keeping with the statement in the original petition, an amendment, also offered after the contest period, attempted to add the names of additional illegal voters for prohibition. As stated above, it is appellants’ contention that the original petition stated no cause of action and that its defects may not be cured by an amendment offered after the contest period. The procedure in a local option election contest is the same as that provided by KRS 122.070 for general elections. (See KRS 242.120, and Adams v. Helton, 296 Ky. 9, 175 S. W. 2d 1012.) The pertinent part of KRS 122.070 provides: “The petition shall be filed and process issued within thirty days after the day of election; it shall state the grounds of the contest relied on, and no other grounds shall afterwards be relied upon.” The original petition was undoubtedly defective, and standing alone would be demurrable. In Hogg v. Caudill, 254 Ky. 409, 71 S. W. 2d 1020, 1021, an election contest case, it appeared that various votes had been cast after 4 o’clock. The contestant failed to name the voters who voted after 4 o’clock and state for whom they voted. In considering the sufficiency of the pleading and evidence the court said: “It has been uniformly held by this court, except in Banks v. Sergent, 104 Ky. 843, 48 S. W. 149, 20 Ky. Law Rep. 1024, and in Caudill v. Stidham, 246 Ky. 174, 54 S. W. 2d 654, that in a contest where the ground was the casting of ineligible votes the pleader must name in his pleading the persons whose votes he questions and the ground upon which he bases his objection as well as the facts which rendered them ineligible and sustain his allegations by competent evidence. Thurman v. Alvey, 192 Ky. 341, 233 S. W. 749, and cases cited; Rice v. Jones, 250 Ky. 385, 63 S. W. 2d 474; Combs v. Brock, 240 Ky. 269, 42 S. W. 2d 323; Humbert v. Heyburn, 240 Ky. 405, 42 S. W. 2d 538. In so far as Banks v. Sergent, and Caudill v. Stidham, supra, are in conflict with the principles announced in this opinion, they are overruled.” *379 We again affirm the principles so set forth. However, the real question is the right of the plaintiff below to correct the defects in the petition by an amendment offered after the 30 day period provided by KRS 122.070. Although the intervenors promptly filed a demurrer to the original petition, no action was taken thereon until the entry of the judgment, at which time the demurrer was overruled on the theory that the amendment had cured the defects. In considering the allegations of the original petition we can not escape the conclusion that a ground of contest was alleged in each of the precincts mentioned, this ground being the illegality of the votes. It is true that the reasons for the illegality of the votes were not stated, but we have concluded that this defect could be, and was, cured by the amendment. Under the express provisions of KRS 122.070 no new or additional grounds of contest may be set up after the expiration of the time allowed therefor. However, we have uniformly held that after the expiration of such time a ground of contest defectively stated within the time may be perfected by amendment. See Wilson v. Hines, 99 Ky. 221, 35 S. W. 627, 37 S. W. 148, 18 Ky. Law Rep. 233; Phillips v. Ratliff, 134 Ky. 704, 121 S. W. 460; Butler v. Roberson, 158 Ky. 101, 164 S. W. 340; Burke v. Greer, 197 Ky. 555, 247 S. W. 715. In the case of Johnson v. Little, 176 Ky. 505, 196 S. W. 156, 157, Ann. Cas. 1918A, 70, the answer, by way of counter contest, challenged certain votes cast by persons who could neither read nor write, but it was not alleged in the answer that these votes were cast by females. (Under- the Statute then in existence this was necessary.) This disqualifying fact was afterwards ■alleged in an amended answer tendered after the time fixed for the filing of a counter contest. Holding that the amendment was properly filed this court said: “If the matter set up in the amended answer complained of here were an additional ground of counter contest, it having been filed more than 20 days after the service of the summons, the doctrine of those cases would apply, but the fault in the contention is that the amendment contained no additional ground of counter contest, but only perfected a ground which had been alleged in time, but defectively. In the original answer the persons whose votes were questioned were named, but by inadvertence *380 of the pleader the fact which rendered those votes illegal (they being females) was omitted. The amendment did not seek to incorporate therein, or to question, other votes besides those mentioned in the original answer, and therefore contained no additional ground in support of defendant’s contention.” We see no distinction between the omissions there and here, and under this rule the lower court properly permitted the corrective amendment to be filed.' 3. Silhanek’s petition for recount alleges that through mistake the ballots had been miscounted. The prayer of his petition is limited to the demand for a recount, except the usual request for all proper and general relief. There is a clear distinction between an action brought for a recount and a contest proceeding. Wurts v. Newsome, 253 Ky. 38, 68 S. W. 2d 448. The applicable statutes authorize both types of action and permit a contest to be joined with a demand for a recount. Under such circumstances a later contest action can not be entertained, the determination of the joint recount and contest proceeding being res adjudicata. But where, as here, a demand for only a recount of the votes is made and obtained, a subsequent contest proceeding is not barred, provided the contest proceeding is instituted within the specified time. See Kincaid v. Hurst, 287 Ky. 824, 155 S. W. 2d 225, and Berndt v. Fitzpatrick, 300 Ky. 484, 189 S. W. 2d 678. Consequently the Silhanek recount proceeding constitutes no bar to the present contest of the election. 4 and 5 will be considered and determined together. It appears that after the counter contest proceeding was instituted the plaintiff below took the depositions of some of the voters who were challenged by the intervenors and established by their testimony that they had voted illegally for prohibition. These particular voters were not included in the lists set up in the plaintiff’s original petition, and one question for determination is whether the contestant may take advantage of his opponent’s challenge of these votes. In an amendment tendered after the lower court had the record in this case for consideration, the intervenors attempted to withdraw from the contest the names of all the voters whom they challenged but who testified to facts showing their illegal votes were *381 cast in favor of prohibition, and a further question for determination is whether this amendment was offered too late. Formerly this court held that a party to an election contest proceeding must both plead and prove facts to show that illegal votes were cast for his opponent. See Francis v. Sturgill, 163 Ky. 650, 174 S. W. 753. However, in the case, of Drennan v. Roberts, 234 Ky. 574, 28 S. W. 2d 735, the court departed from that rule and held that a contestee may take advantage of any ground of contest asserted by the contestant without filing counter contest proceedings. This last opinion was attacked in Hodges v. Murray, 240 Ky. 127, 41 S. W. 2d 923, but was approved and followed Avithout dissent. It therefore appears that it is well settled that either party to an election contest proceeding may take advantage of the contest grounds asserted by his opponent. In Hodges v. Murray, supra, there is dictum to the effect that any disadvantage or injustice resulting by reason of this rule may be overcome by a withdrawal, before submission, of the charge that the votes involved Avere illegal, but that question is not presented in this case. In the case under consideration the withdrawal amendment offered by the intervenors Avas offered long after all proof had been taken, and apparently after the case had been orally argued, partially briefed, and at a time when the court had possession of the record for consideration. Although there is no formal order of submission in the record (apparently one was never entered) a statement in the appellants ’ third brief filed in the circuit court indicates that such amendment was offered at or about the time that brief was filed. We are accordingly justified in saying that this amendment, seeking to with-, draw the names of certain illegal voters from the court’s consideration, was offered after the case was finally submitted to the lower court for determination. Under the rule, as herein set out, this amendment was offered too late for filing, and the lower court properly rejected it. 6. It is vigorously argued by appellants that the circumstances proven in this case indicate that many of the voters who testified that they voted for prohibition illegally are so affiliated Avith the opponents of prohibition that the court Avould be justified in disregarding their own testimony. We have carefully examined the evidence but are unable to agree Avith this contention. It *382 may be admitted that in some instances it was established that the voter who was challenged was either an employee or otherwise connected with an operator of some roadhouse or liquor dispensary, and in at least one instance a voter admitted that she worked for and was paid by the “wets” on election day, although she testified that she voted “dry” in accordance with her convictions and rendered her services solely for the money she earned. It is unnecessary to prolong this opinion by a further discussion of this line of evidence. It is sufficient to say that the court has determined that the testimony of the witnesses as to how they voted is sufficient to sustain the finding of the chancellor, the circumstantial evidence being insufficient to raise more than a doubt as to the correctness of the finding of the lower court. See Cornett-Lewis Coal Co. v. Eversole, 301 Ky. 70, 190 S. W. 2d 873; Stewart v. Mitchell’s Admr’x., 301 Ky. 123, 190 S. W. 2d 660; Cook v. Hagan, 301 Ky. 346, 192 S. W. 2d 97. The lower court entered its findings of fact and from them its conclusions of law which have been of material assistance to us in considering this case. In such findings the various individual votes which are challenged are set up under different classifications and in considering the' evidence in connection with each voter challenged we have followed the same order as the chancellor followed in the findings. It would serve no purpose even to briefly outline the evidence as to the legality or illegality of each individual voter. Instead we shall take up each group indicating only the names of the -voters when we disagree with the trial court. Group 1. The trial court found that 76 persons voted in favor of prohibition at a time when each was domiciled in a precinct other than that in which he or she voted. See Stice v. Parsley, 217 Ky. 653, 290 S. W. 471; Morgan v. Walker, 289 Ky. 92, 158 S. W. 2d 5, and KRS 117.010. The evidence sustains the findings except as to the following persons: 1. Verlin Thompson 2. Blanche Thompson 3. Herbert Lee Cardwell 4. Woodrow Laws (5. (6. Fred Bolton (The lower court considered this voter twice and deducted 2 votes from the drys. *383 Since we disagree, 2 votes must be deducted from the wet majority.) 7. Christine King 8. Mary Sizemore Thus, eight votes must be deducted from the wet majority of 44. Group 2. The court found that 40 persons voted in favor of prohibition and that each of them lacked the domiciliary qualifications of residence either in the state for one year, the county for six months, or the precinct for sixty days. Section 145, Kentucky Constitution. Penny v. McRoberts, 163 Ky. 313, 173 S. W. 786; Branham v. Branham, 276 Ky. 767, 125 S. W. 2d 225. We agree with the court’s findings in this respect except as to Sam Gilbert and John E. Irvin. The consideration of these two votes was deferred until all the evidence had been examined, at which time it was determined that it was unnecessary to pass upon their qualifications. Group 3. The trial court held that 31 votes for prohibition should not be counted because the voters did not live in Kentucky or Bell County at the time of the election. We agree except as to one vote — Cecil Smith. The consideration of the legality of the vote of Cora Young was passed until all evidence was considered, at which time it was found to be unnecessary to pass upon her qualifications. One vote should be deducted from the wets on this account. Group 4. The lower court found that 15 minors voted in favor of prohibition and therefore deducted that number of votes from the drys. Kentucky Constitution, Section 145. Stice v. Parsley, supra. The evidence supports the finding of the chancellor in each instance. Group 5. The lower court invalidated 23 votes because the voters exposed their ballots after voting so as to destroy their secrecy. A voluntary or intentional exposure of a voted ballot by the voter violates the requisite secrecy of such ballot, and if it can be shown how such vote was east it will be eliminated. Stice v. Parsley, supra; Marilla v. Ratterman, 209 Ky. 409, 273 S. W. 69. The testimony of an election officer is competent to show how exposed ballots were voted. Clark v. Robinson, 159 Ky. 25, 33, 166 S. W. 801; Johnson v. Caddell, 251 Ky. 14, 64 S. W. 2d 441. Two election officers testified as to *384 the circumstances under which various voters either voluntarily or intentionally exposed their ballots. One of them kept a list of such voters and submitted that list with his deposition. The trial court did not eliminate all the persons named in that list but we find that the evidence amply supports the elimination of the 23 votes which were invalidated. Group 6. For various reasons the court found that 25 persons voted illegally in favor of prohibition. These persons were not named in the plaintiff’s petition. All of them were challenged by the appellant in the counter contest. Under our rule, heretofore referred to, the court properly considered the contest of these votes, notwithstanding the appellee’s attempt to withdraw the names from consideration. We concur in the chancellor’s finding as to the elimination of all these votes except those of: 1. Gray Mathis 2. Edgar Jennings 3. William Williams 4. Mrs. William Williams (Jeanette Williams) 5. Dayton Parker Appellee claims that there are actually 27 voters in this class, but John and Mattie Miner were considered and eliminated elsewhere. (See Group 5.) Thus, an additional 5 votes must be deducted from the wet majority. Group 7. The court found that 7 voters were not registered in the precinct in which they voted. An examination of the evidence forces us to the conclusion that the judgment of the chancellor in this respect is correct. At this point we take up some miscellaneous contentions of appellants: (a) It is contended that the lower court erroneously permitted appellee to file his third amended petition after the contest period had expired for the purpose of correcting a mistake in the original petition as tp the names of the precincts in which these persons had'* voted. We agree with the trial court that this amendment could be filed for the purpose of correcting these mistakes. See Phillips v. Ratliff, 134 Ky. 704, 121 S. W. 460. (b) The lower court eliminated the dry votes of Joe Jackson and James Williams. These voters were challenged in the original petition but were specifically with *385 drawn by the first amended petition. The names were not included in the counter contest- suit. Therefore, the court should not have considered these 2 votes and was in error in eliminating them. Accordingly the wet majority will be reduced by these 2 votes. (c) Willie B. Ewing was included in the original petition. In the first amendment appellee withdrew all names listed in subparagraph 8 of paragraph 8 of the original petition (which included the name of Willie B. Ewing) except those specifically listed under subsection b. of such amended petition, which list does not include the name of this voter. Therefore, an additional vote must be deducted from the wet majority on this account. 7.The lower court sustained appellants’ counter contest as to 20 of the votes challenged. On appeal it is insisted that there were other ineligible voters who voted against prohibition. We agree with this contention as to: 1. Shelby Asher 2. George Shelton 3. Martha Smith 4. Robert Shorter 5. Tilman Jones 6. James P. Miller 7. Mary Satterfield 8. Ester Satterfield 9. Willie May Satterfield 10. Margaret Young 11. Harrison Brooks (Brock) 12. Oscar Loop 13. Walter Dalton 14. Leonard Carson 15. James G. Norvell 16. Roscoe Smith Thus, 16 additional votes should be deducted from the wet majority. Taking into consideration the elimination of these 16 votes against prohibition and the addition of 17 which the chancellor deducted from the drys, we find that a total of 33 votes should be deducted from the majority of 44 by which the chancellor determined that prohibi *386 tion had been repudiated. At this point there is a majority against prohibition°of 11 votes. In considering the votes which appellants claim to have successfully challenged, we passed, for various reasons, the determination of the legality of the votes of: 1. Lee Arthur Brown 2. Rosa Brown 3. J. R. Howard, Jr. In considering the chancellor’s findings as to the elimination of various votes in favor of prohibition we likewise deferred consideration of 3 votes. After an examination of all the evidence and the contentions in respect to each individual voter whose eligibility was challenged, we find that the 6 votes which were not passed upon will not affect the determination of this litigation, and it is therefore unnecessary to take these votes into consideration. Appellants also insist that the results of two precincts should be disregarded in the tabulation of the votes. We have examined the testimony relied on to support such contention but find it is insufficient to overturn the finding of the chancellor. As pointed out in the forepart of this opinion, appellee raises three questions on his cross-appeal: 1. In support of this contention appellee relies solely on Adams v. Helton, 296 Ky. 9, 175 S. W. 2d 1012, which may be clearly distinguished from the case under consideration. There the court permitted the contestant to supply the names of alleged illegal voters by an amendment to the original petition, which was offered within the contest period. It is well settled that within the contest period a petition may be amended by setting up new or additional grounds of contest, and the opinion in the case referred to merely concurs in that well-established rule, and points out that after the expiration of the contest period the petition may be amended only for the purpose of perfecting a ground of contest which was imperfectly set up originally. We thoroughly agree and have followed this rule in disposing of one of the points under consideration in this ease¡ On the other hand, we have said that an amendment listing additional names of illegal voters may *387 not be considered as an attempt to perfect imperfect allegations of the original grounds relied upon. An amendment listing additional names of alleged illegal voters sets* up additional grounds of contest, and' this may not be done after the contest period has expired. See Clark v. Robinson, 159 Ky. 25, 166 S. W. 801; Combs v. Brock, 240 Ky. 269, 42 S. W. 2d 323; Humbert v. Heyburn, 240 Ky. 405, 42 S. W. 2d 538; Dance v. Anderson, 288 Ky. 431, 156 H W. 2d 463; Jackson v. Bolt, 292 Ky. 503, 166 S. W. 2d 831. Since the subject amendment was offered after the 30 day contest period provided for by KRS 122.070, the trial court properly rejected it. 2. In view of the conclusion reached herein it will not be necessary to dispose of appellee’s second contention that there was such intimidation in Junction Precinct as to authorize the court to disregard the result of the votes cast therein. 3. Finally, appellee insists that he successfully challenged two votes for prohibition which the trial court refused to deduct from the proponents of prohibition. We agree with this contention. The evidence of the two voters in question shows clearly that each was under 21 years of age and voted for prohibition. Each would have been 21 years of age at the time of the general election in November 1945. Therefore, each was entitled to register and vote, not only in the 1945 general election, but in the August 1945 Primary election. Since the local option election held in May 1945, is a general election and the two voters at that time were under 21 years of age, they were not entitled to participate therein. Adding these 2 votes to the majority of 11 in favor of the opponents of prohibition, we finally conclude that under the evidence shown by the record in this case prohibition was repudiated in Bell County by a majority of not more than 13, and not less than 7 votes. The judgment is accordingly affirmed.