Witten v. Sternberg

CULLEN, Commissioner. At the recent regular November election the count of the votes for those nominated for the office of alderman of the second ward in Louisville showed the Democratic candidate, Dr. Carroll Witten, to be the winner, with 39,242 votes, over the Republican candidate, Frank A. Matthews, Jr., with 29,721 votes, and the American Party candidate, Tom Nolan, with 874 votes. C. J. Hyde, who had not been nominated for the office and whose name therefore was not carried on the voting machines, received 4,600 write-in votes. Two persons alleging themselves to be co-chairmen of the “Hyde for Alderman Committee” and a third person alleging herself to be a voter, taxpayer and citizen of Louisville brought suit in the Jefferson Circuit Court, against Witten, the county board of election commissioners, and the county court clerk, seeking an injunction against certification of Witten as the winner, and a declaration that the election for the office in question was void, on allegations that such irregularities occurred with respect to the provision of facilities for write-in votes, the adjustment of the voting machines, and the counting of write-in votes as to disfranchise a substantial number of voters and thus to violate the requirement of Section 6 of the Kentucky Constitution for free and equal elections and to make the purported election for the office in question no election at all. A restraining order was issued, which still remains in force pending a ruling by the circuit court on the defendants’ motion to dissolve it, and the plaintiffs’ motion for a temporary injunction. Subsequently the Republican candidate intervened, asking substantially the same relief as was sought by the original plaintiffs. [497] Simultaneously with the filing of their motion to dissolve the restraining order, the defendants moved to dismiss the action for lack of jurisdiction of the subject matter. After the Republican candidate intervened, the defendants renewed the motion to dismiss. The circuit court overruled the motion. The defendants thereupon instituted the instant original proceeding in this court, seeking an order prohibiting the circuit court from entertaining the action, by reason of lack of jurisdiction. Under Section 153 of the Kentucky Constitution the General Assembly is given power to provide “for the trial of contested elections.” As to elections for members of city legislative bodies the General Assembly has chosen to provide that the body shall determine the election of its members. The statute so providing for first-class cities (Louisville) is KRS 83.060. The statutes for the other classes of cities are, respectively, KRS 84.060, 85.070, 86.060, 87.-040, and 88.050. This type of statute has been held constitutional. Jackson v. Randolph, Ky., 311 S.W.2d 541. The general election contest statute, KRS 122.070, expressly excludes from its scope city offices “as to which there are other provisions made by law for determining contested elections,” having reference to the offices of city legislative bodies. Cf. Thieman v. Hancock, 296 Ky. 223, 176 S.W.2d 418. Under KRS 83.060, considered with KRS 122.070, it is plain that the board of aldermen of Louisville is the sole judge of the election of its members (where the offices of less than a majority of the board are in question, Scholl v. Bell, 125 Ky. 750, 102 S.W. 248), and contests of elections for such office are excluded from the jurisdiction of the courts. See Cole v. Ridings, 271 Ky. 158, 111 S.W.2d 605; Lyttle v. Wilson, 252 Ky. 392, 67 S.W.2d 498; Ratleff v. Tackett, 209 Ky. 588, 273 S.W. 441; Craft v. Davidson, 189 Ky. 378, 224 S.W. 1082; Jackson v. Randolph, Ky., 311 S.W.2d 541. The plaintiffs in the action below maintain, however, that their action is not one to contest the election, but rather is one to obtain a declaration that there was in fact no election for the office in question. They cite no authority for such a distinction, as respects an election for the office of member of a city legislative body, and we believe there is none. There plainly was enough of an election to produce a putative winner in Witten, and the objective of the action below was a determination that Witten was not the winner, for whatever reason. The mere fact that the plaintiffs do not seek the office for themselves or for the candidate they espouse, but ask only that the election be declared void, does not keep the proceeding from being in the category of an election contest, because a suit attacking an election, by a defeated candidate who did not receive a plurality of the legal votes, has always been considered a contest suit even though the only relief the plaintiff can obtain is to have the election declared void. School v. Bell, 125 Ky. 750, 102 S.W. 248; Francis v. Sturgill, 163 Ky. 650, 174 S.W. 753; McKinney v. Barker, 180 Ky. 526, 203 S.W. 303; Hardin v. Horn, 184 Ky. 548, 212 S.W. 573; Whitney v. Skinner, 194 Ky. 804, 241 S.W. 350; Greene v. Cawood, 230 Ky. 823, 20 S.W.2d 984; Kluemper v. Zimmer, 240 Ky. 225, 41 S.W.2d 1111; Hart v. Rose, 255 Ky. 576, 75 S.W.2d 43; Brandenberg v. Hurst, 290 Ky. 592, 162 S.W.2d 223. The plaintiffs below place reliance on Wilson v. Brown, 109 Ky. 229, 58 S.W. 595. The holding there was that the establishment by the legislature of an administrative body to try election contests could not de-privé the courts of the jurisdiction to determine whether an election for a particular office was “void.” The underlying theory of that case, as later was made clear in Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, was that the establishment of election contest board, with power to determine contests of elections for other offices, was an invasion of the authority of the judicial branch of government. As held in Jackson v. Randolph, Ky., 311 S.W.2d 541, however, that is not the case with the statutes [498] authorizing legislative bodies to determine the elections of their own members. The respondent judge, in an opinion upholding his jurisdiction of the case, adopted the view that the suit here in question, as to the voter plaintiff, was one to enforce Section 6 of the Kentucky Constitution and in a sense to vindicate the voter’s right to exercise the franchise, and therefore was not a contest suit. The judge used for authority Johnson v. May, 305 Ky. 292, 203 S.W.2d 37. It is our opinion, however, that Johnson does not constitute authority for any such proposition. In Johnson the election attacked as void was an election on a public question — local option. Holding the election void would maintain, status quo, the situation that prevailed before the election. Thus the individual voters who brought the suit could achieve an effective remedy. That is not so, however, with regard to an election for a public office, and particularly the office here in question. If the election here involved were declared void, a vacancy would exist in the membership of the board of aldermen, which would be filled by the board under KRS 83.040. The plaintiffs who brought the suit would obtain no vindication of their right to vote — no remedy for the deprivation of that right — no practical enforcement of Section 6 of the Kentucky Constitution. To hold the election void simply would mean that the office would be filled some other way; the voters would not retrieve their lost right to vote as would be the case in the voiding of an election on a public question. We do not believe that the Kentucky Constitution intends that an individual voter have any justiciable right to keep from office a person who claims it by virtue of an election, no matter how illegal the election may be. It has been clearly established by previous opinions that a voter has no right to seek the ouster of a blatant usurper. Jenkins v. Congleton, 242 Ky. 46, 45 S.W.2d 456; Hermann v. Morlidge, 298 Ky. 632, 183 S.W.2d 807. How then can a voter assert an interest in keeping from taking office a person illegally elected ? We find little persuasion in the claim of the plaintiffs below that they and others like them were disfranchised, for to invalidate the election would disfranchise almost 70,000 voters who cast their votes for the nominated candidates. There is no inherent power in the courts to pass upon the validity of elections or to try contested elections. Lyon v. Holbrook, Ky., 316 S.W.2d 862; Patterson v. Knapp, 125 Ky. 474, 101 S.W. 379; Pflanz v. Foster, 155 Ky. 15, 159 S.W. 641; Cole v. Ridings, 271 Ky. 158, 111 S.W.2d 605; Wilson v. Town of Whitley, 159 Ky. 69, 166 S.W. 775. The respondent circuit judge hereby is prohibited from entertaining the action here in question, and is directed to dismiss it. MILLIKEN, C. J., and HILL, PAL-MORE and REED, JJ., concur, the latter two by separate concurring opinion. STEINFELD, J., not sitting. OSBORNE and NEIKIRK, JJ., dissenting.