Monhollan v. Rice

Opinion of the Court by Chief Justice Rees — Affirming. The appellant, Tom Monhollan, and the appellee, B. M. Bice, were opposing candidates for the ^Republican nomination for the office of constable of the fourth magisterial district of Whitley county at the primary election held on August 2, 1941. There were three candidates in the race, and the appellee received a plurality of 18 votes. Monhollan instituted a contest proceeding-in which he set up several grounds of contest, but all were abandoned except the attack on appellee’s preelection statement of expenses. The circuit court held that the pre-election statement of expenses filed by the appellee substantially complied with the requirements of the Corrupt Practice Act and dismissed the contestant’s-petition. Monhollan has appealed. Section 1565b-4, Kentucky Statutes, provides that any person who shall be a candidate at any primary election shall, on the fifteenth day before the date for making nomination, file with the officer with whom his nomination papers must be filed a statement in writing subscribed and sworn to by him which shall set forth in detail all sums of money, or other things of value, contributed, disbursed, expended or promised by him, and to the best of his knowledge and belief by any person in his behalf, wholly or in part, endeavoring to secure his nomination. The statute further provides that such statement shall set forth in detail each item of contribution or expenditure, and prescribes the form of oath to-be subscribed and filed with the statement. The appel *816 lee filed Ms expense account with the proper officer July-18, 1941, which reads in part: “Pre-Election Statement of Expenses: Of “R. M. Rice. “Candidate for office of Constable of the 4th Magisterial District of Whitley County, for nomination on the Republican ticket. “Amount contributed to me from all sources $- “Amount expended in my behalf by other persons or corporation ............... $- “Amount contributed, disbursed, expended or promised by me in support of or in connection with the nomination of election held on 2nd day of August, 1941 ... $ --- “Amount promised or paid by me to: “Tom Shelton, Whitley County Court Clerk, on June 10th, 1941, Notification and Declaration Pee ......................... $ 1.00 “Corbin Times on June 1, 1941, Political Advertisement ......................... $ 5.00 “Watkins Printing Company, July 1, 1941, Political Advertisement .............. $ 3.25 “George Jones, on July 1, 1941, Political Advertising ......................... $ 6.00 “Lyle L. Willis, July 1, 1941, Cards for Advertising ............................ $ 1.95 “Bob Gill, July 15, 1941, Political Advertisement ...............................-. $ 1.90 “Sandy Sears, July 16, 1941, use-of truck for speaking ............................ .50 “Total .................................. $19.00 “Dated at Corbin, Kentucky, this 18th day of July, 1941. “(Signed) R. M. Rice * # m “I, R. M. Rice, do solemnly swear that the statement herewith filed embraces all money spent *817 by me, or in my behalf with my knowledge or by any person for me; that I have neither directly nor indirectly arranged for or encouraged the spending of any money other than as shown in my said statement; and that I have not repaid any money so spent or claimed to have been spent; and that I will not do so; and that I have not violated any of the provisions of this act in letter or in spirit. “(Signed) R. M. Rice “Subscribed and sworn to before me this 18th day of July, 1941. “My commission expires April 25, 1944. “(Signed) Letha T. Sutton “Notary Public “State of Kentucky “County of Whitley.” The expense account is attacked on the following grounds: (1) It was filed one day too soon, or on the sixteenth day before the primary; (2) leaving blank amounts opposite the first three items in the account rendered it fatal; and (3) the officer administering the oath failed to state she swore R. M. Rice. We have held in a number of cases that the filing of a pre-election statement of expenses, as required by Section 1565b-4 of the Kentucky Statutes, is mandatory, but that the time for filing same is directory only ancl reasonable and substantial compliance as to time is all that is required. Best v. Sidebottom, 270 Ky. 423, 109 S. W. (2d) 826; Ridings v. Jones, 213 Ky. 810, 281 S. W. 999; Hoskins v. McGuire, 194 Ky. 785, 241 S. W. 55; Felts v. Edwards, 181 Ky. 287, 204 S. W. 145. In most, if not all, of the cases cited in which it was held that the time fixed by the statute for filing the pre-election statement of expenses is directory, the statement was filed less than fifteen days before the primary, but we think a statement filed only one day before the date fixed by the statute is likewise a substantial compliance with the act. In the present case, however, appellee’s statement of expenses was filed on the fifteenth day before the primary and not on the sixteenth day as claimed by appellant who insists that the day of election should be included in the number of days counted, but we think a proper construction of the statute requires that the day *818 before tbe election, should be treated as tbe first day to be counted. We find no merit in appellant’s contention that tbe blank lines opposite tbe first three items in tbe statement render the statement void. When tbe statement is read as a whole, including tbe affidavit, it is clear that tbe only expenses incurred by tbe appellee or expended in bis behalf by other persons were tbe items making a total of $19 and that the blank lines mean that no expenses or contributions falling within tbe first three items of tbe statement were incurred or received. In Duff v. Salyers, 220 Ky. 546, 295 S. W. 871, 872, tbe preelection statement of expenses of tbe contestee was attacked on tbe ground that it was not sufficient under tbe statute in that it did not set forth in detail all sums of money disbursed or contributed under tbe three items ■of which complaint is made in tbe present ease. In tbe Duff case these three items were wholly omitted. In bolding that tbe statement was sufficient, tbe court said: “While tbe statement does not contain all of this, all of it, in substance, is embraced in tbe affidavit following tbe form given in tbe statute, except tbe dates when tbe money was paid. This is a substantial compliance with tbe statute.” Tbe statement in tbe present case contains several items of expense and in each instance tbe amount is stated as well as tbe name of tbe person to whom it was paid, tbe purpose for which it was paid, and tbe date the ■expense was incurred. In tbe affidavit accompanying tbe statement tbe appellee stated that tbe expense account filed therewith, embraced all money spent by him or in bis behalf with bis knowledge or by any person for him. This constituted a substantial compliance with tbe statute. It is finally insisted by appellant that tbe jurat to tbe affidavit is faulty in that it fails to show that R. M. Rice was tbe person sworn. This contention is wholly without merit. Tbe statement was signed by R. M. Rice and tbe affidavit was signed by him. Immediately under bis signature to tbe affidavit this appears: ‘ ‘ Subscribed and sworn to before me this 18th day of July, 1941.” Tbe affidavit was subscribed by R. M. Rice, and tbe only reasonable inference deducible from tbe jurat is that it was sworn to by him. Tbe rule generally recognized is *819 that the jurat is no part of the affidavit unless made so by statute, and if it is defective or even omitted the fact that the affidavit was properly sworn to may be proven by other evidence as was done in the instant case. Young v. Wooden, 204 Ky. 694, 265 S. W. 24; Blackburn v. Commonwealth, 202 Ky. 751, 261 S. W. 277. The judgment is affirmed.