Wilkins v. Duffy

Opinion of the court by JUDGE O’REAR — Affirming. These two appeals are election contests. They involve the same facts, and are dependent upon substantially the same evidence. They aire consequently considered together. In the first case, Wilkins v. Duffy, the parties were candidates for the office of county judge of Todd county, voted for November 5, 1901. In the second case, Gill v. Mallory, the parties were candidates for the office of county attorney; — 114 — of Todd county at the November, 1901, election. The appellees were the nominees of the Democratic party for the offices above named, respectively. The offices filled by that election were: Member of the General Assembly, county judge, county attorney, sheriff, jailer, superintendent of common schools, assessor, coroner, surveyor and justices of the peace and constables. There was a full ticket nominated by the Democratic party for those offices at this election. While some dissatisfacton is shown to have existed against some of the Democratic nominees, within their party, it is not claimed that those placed upon the ballot, including appellees in these cases, were not entitled to be so placed as the regular nominees of their party. The Republican party attempted to make nominations of candidates for some or all of these offices. The method adopted was by a delegate convention. After several adjournments, this convention nominated a full ticket, excepting county attorney. One Bon Miller was chairman of the convention. After its adjournment he declined and failed to certify any of the nominations. The cause assigned was that he first required each nominee to pledge himself that he would continue a candidate until the close of the election. There seems to have been some division of sentiment among the members of the Republican party as to whether nominations should have been made for the offices of sheriff and jailer. The convention first tendered the nominations for county judge and county attorney to appellants, respectively. They then declined them. After the final adjournment of the convention and after Miller had refused to certify the nominations, the chairman and secretary of the Republican county executive committee executed certificates of the nominations, and filed them with the county clerk. Several of the candidates, however, re — 115 — signed their nominations. The candidate foir county judge, sheriff and representatives were among the number. Thereupon petitions were filed before the county court clerk of the county, on August 12, 1901, signed by more than 100 names, with poistoffice addresses and places of residence given, nominating candidates for these vacancies on the .Republican ticket, and for the vacant place on the ticket for county attorney; appellants Wilkins (for county judge) and Gill (for county attorney) being so named. The petitions were all of the same form, the following being one of them: “We, the undersigned, citizens of Todd county, Ky., whose postoffice addresses and residences are set opposite each of our names, hereby request and petition you to cause to be printed on the ballots to be used in the election of county officers'for Todd county on the 5th day of November, -1901, in the list of names of the Republican candidates for said offices, the name of Walker Wilkins as the Republican candidate for the office of county judge of said county, Said Walker Wilkins resides near Elkton, Ky., in election precinct No. 3 in Todd county, Ky., and is a member of the Republican party, and is legally qualified to hold the office of county judge of said county. We, whose names are subscribed hereto, are legally qualified to vote for said Walker Wilkins for said office. You are requested to cause his name to be printed! upon the ballot aforesaid under the title of Republican Party,’ and under its device, to-wit, the log cabin.” A rumor reached appellants that the county court clerk, who was a candidate and thej Democratic nominee for reeledtion at that election, would not place the names of appellants and others similarly nominated on the ballot under the name and device of the Republican party. Their representatives had several conferences with the clerk, trying — 116 — to learn bis purposes in that respect, and with the view, also, of taking compulsory process against him! to so print the ballots if he had declined. Out of further precaution, as appellants claim, they again filed with the clerk petitions m the exact language of those theretofore filed, one of which is quoted above, and signed each by more than 100 names, with postoffice addresses, etc. These last petitions were filed on October 21, 1901, the last 'day, under the law, for filing petitions or certificates for nominations for the ensuing November election. They did not include any of those previously signing. On that day the clerk assured them, through their representatives and attorneys, that, unless he was prevented by injunction or “by law,” he would cause the names of Wilkins, Gilí and the others of the Republican candidates, to be printed on the official ballots under the title “Republican Party,” and its device, the log cabin; that, if he was so prevented, he would give them timely notice. Instead of having the ballots printed as stated, they were printed thus: The names of all the nominees of the Democratic party were printed in one column, under the title “Democratic Party,” and1 device, the rooster. The Republican candidates for clerk of the county court, jailer, assessor, superintendent of schools, surveyor*, and coironer, and two candidates for justice of the. peace, were placed under the title “Republican Party,” and the device off log cabin. For the offices of representative, county judge, county attorney, sheriff, and three of the candidates for justice, the Republican candidates'’ names were printed in a separate column, headed “Independent Republican Partj,” and under a device of a pick and shovel. Corresponding places under the regular Republican ticket were hot filled on the ballot as prepared. The form of the ballot is not shown to have been known to any person in — 117 — the county prior to the morning of the 'day of the election, except to the clerk of the county court, W. A. Dickinson, and to appellee Mallory. No other person was claiming to be entitled to the placesi on the ticket as Republican candidates for these offices. There was no contest, settled or unsettled, on that account. It is claimed by appellants that they and their adherents and “workers” were completely surprised, and their discipline demoralized, by the form of the ballot; that their partisans and friends had all been instructed thaif their names would appear under the name and device of the] Republican party, and that, to vote for them, the ballot should be marked within the circle under the log cabin; that many of their •supporters could not read, and were therefore unable to find their names on the badot, so as to cross over and vote for it; that many of them were ignorant as to the manner of voting “crossed” or “mixed” tickets, and many of them left the voting places without voting because of this confusion, and in consequence many votes were lost to appellants'and to the whole of the Republican ticket by1 this misarrangement of the ballot. / Other facts pertinent to the statement will be set’ out hereinafter, as specially bearing on particular points decided. The circuit, court dismissed the petition of appellants, thereby adjudging the election to have been valid, and appellees to have been elected to their respective offices. The questions of law presented by these appeals are the following: (1) Were the names of appellees entitled, upon The facts stated, to go upon the official ballot under the title and device of the Republican party? (2) If they were, what effect upon the election had the action of the clerk in placing the names as was done? — 118 — The right to participate in selecting the officials who directly administer government is conferred by the Constitution upon the male citizens of the State, over 21 years of age, who have not been convicted of certain high crimes, and who are free from certain disabilities enumerated in the Constitution and statutes. Rut the manner of exercising this right, except that it shall be by secret ballot and at certain staled times, is regulated by statute. Thus the hours within which the election shall be held!, the oflu cers conducting same, and the manner of preparation of the ballot and of canvassing and certifying the result, are all regulated by statute. The election must be by ballot. The ballot is required by the law' to be prepared and furnished by certain officials. In order that the election may be free and equal, as guarantied by the Constitution, and as is essential to the very life of a republican government, every reasouab’e opportunity is afforded to the elector to vote for the persons of his choice, free from the intermeddling or coercion of any official or other person. From the earliest times, one or more men in every community have aspired to rule the others. Over-persuasion, force, fraud and bribery are the most familiar improper means adopted to accomplish this end. To prevent amd circumvent these, the ballot has been adopted as the method of voting; and in nearly all the States, as well as in many other countries where the elective system prevails, the Australian ballot is in use; that is, a ballot which must be furnished and prepared by public authority, must be so arranged as loi be readily adaptable to the end that it may certainly and simply express the voters’ will, and must be marked secretly by the voter. In no other way now can the citizen exercise this high privilege and duty in chooising the public officials; Consequently it is of paramount import — 119 — anee that the officer changed by law with the preparation of this ballot should hare neither right nor power to deprive the elector of his privileges. The Legislature, with this point in view, has clearly defined by statute how and by whom the ballot is to be arranged. The sections of the statute bearing on this subject recognize the fact of party affiliation, and the further fact that, to a large extent, political government is determined by party authority and policies. Therefore it is enacted that the ballot shall be arranged by giving preference to' party nominations. But space must be so left on the ballot that each voter may not only choose between the nominated candidates, but may vote for any person whomsoever instead. Nominated candidates, however, are regarded as being, and in fact generally are, the ones from among whom the official is chosen. With much circumspection the statute provides how nominations may be made. First place is given to party nominations, when done under the official authority of the party, by any party casting at the last preceding general election as much as 2 per cent, of the total vote. The nominees so selected may be certified to the clerk of the county count, the official charged by law with the preparation of the ballot, by the governing party authority. Jf it be by' primary election, the certificate of nomination to be signed and duly acknowledged by the chairman and secretary1 of the party making the nomination within the territory voting for the office; if by convention, then to be certified eithetr by the chairman and secretary of the convention, or by the chairman and secretary of the county, if a county office, or of the State, if a State office. Further provision :s made that, if any nominee resigns or dies, the vacancy is to be filled upon the certificate of the governing party authority of his party within the district affect — 120 — ed, or by convention, primary election, or petition. If two or more should claim the right of a party nomination, the one recognized by the governing authorities of that party shall be given the place on the ballot reserved for the nominees of that party. If the party fail to make a nomination by primary election or convention, then it is provided: “If any political party entitled to nominate by convention shall in any case fail to do so; the names of all nominees by petition for any office who shall be designated in their petition as members of, and candidates of, such party, shall be printed under the device and title on the ballots as if nominated by a convention.” ' In the cases at bar the Republican party was admittedly entitled to nominate candidates for the offices in cointest. It did nominate a candidate for the office of county judge by convention. ITis subsequent resignation of the nomination left a- vacancy on the ticket of that party for that office, as if nn nomination had been made. It then was permitted to that party to make a nomination for the office in one of several ways, as follows: (1) Byt primary election; (2) by convention; (3) by petition; (4) in this state of case, by certificate of the chairman of the county committee of rliat party. See section 1., c. 3, Acts Ex: Sess., 1900. The party in this instance chose to adopt the method of making the nomination by petition. The' question, then, is, was tljat petition sufficient, in conforming to the requirements of the statute, so as to- entitle the nominee so named to be placed on the ballot as the candidate of the Republican partv? We must look to the statute for answer to this question, for it must be our guide. The section jnst cited is tbe one containing the law on this subject. iSo far as it affects tbe case in. hand, it is, in addition to what has just been quoted, as'follows: “The county clerk of each — 121 — county shi.ll cause to be printed on the respective ballots the names of the candidates nominated by the convention or primary election of any party that cast two per cent, of the total vote of the State at the last preceding general-election-, as certified to the said clerk,” etc., “and also the name of any candidate fob any office, when petitioned to do so by electors qualified to vote for such candidates, as follows: . . . For a county officer or member of the General Assembly, one hundred petitioners. . . . The signatures of such petition need not be appended to one paper, but no petitioner shall be mounted except his residence and postoffb-e address be designated. Such petition shall state the name and residence of each of such candidates; that he is legally qualified to hold such office; that the subscribers desire, and are legally qualified, to vote for such candidate; and shall,,designate a brief name or title of the party or principle which said candidates represent, together with any simple figure or device by which they shall be designated on the ballot.” Do the petitions in this case meet these requirements? As stated, each petitioner -signing the papers stated thereon Ips postoffice address and residence. The petitions stated the name of the candidate; the office for which he was nominated; that he was legally qualified to hold such office; that the subscribers desired to, and were legally qualified to, vote for such candidate; and they -stated that the person nominated was a member of the Eepublican party; that he was nominated as the Eepublican candidate for the office of county judge, in one case, and county attorney, in the other; adding: “You are requested to cause his name to be printed- upon the ballot aforesaid, under the title of ‘Eepublican Party/ a-nd under its device, to-wit, the log cabin/’ The petitions seem to be strictly a literal-compliance with the terms o-f — 122 — the statute. We will.take up and notice the reasons why appellees urge that the petitions were not sufficient: First, it is argued that the nominee was designated as the “Republican candidate,” instead of as the' “candidate of the Republican party.” Of course, it is not argued1 that the difference misled the clerk or any one else. But it is said there may be any number of Republican candidates), for every Republican who might be a candidate would be a “Republican candidate,” whereas there could be “only one candidate of the Republican party.” In our opinion, the phrases “the Republican candidate,” and “the candidate of the Republican party” are synonymous terms, and are so universally' employed and understood1. That they were intended to be and were so understood in this case can not be doubted. Even if the grammatical construction of the sentence was incorrect, it would no more invalidate the petitions than if words therein were misspelled, provided the true intent could be gathered from it, and it substantially complied with the requirements of the statute. The next objection is that the petitions do not state that the Republican party had failed to make a nomination by convention or primary, and, unless there was such a failure, a party nomination by petition was not allowed. Waiving for the moment the clerk’s personal knowledge on this subject, the records of his office then disclosed toi him officially that the Republican party had, by convention, made nominations for all county offices except county attorney; that for the office of county judge the nominee had! that day resigned his nomination, and thereby there was a vacancy to be filled by petition or otherwise, as allowed by law. Furthermore, nothing in the statute regulated the time of filing the respective petitions or certificates of nomination, further than that they should not be filed for more than — 123 — sixty nor less than fifteen days before the election. If a party nomination by petition was filed, sixty days before the election, notwithstanding it stated and it was the fact that the party had not, by convention or primary election, nominated a candidate for that office, such filing of the petition could not prevent the party’s making the nomination by convention or primary up to within fifteen days before the election. When the clerk came to make up the ballot, after the time for certifying nominations was closed, if there was only one nomination of a party, and that was by petition, for a given office, the fact that no certificates of nomination were filed was sufficient to warrant him in placing on the ballot as the party nominee the person nominated by petition. But in this case it was conclusively shown that the clerk kuew, as a matter of fact, that the Republican party had made no other nomination for these offices, save as shown by the files of the clerk’s office. He knew that the convention nominated a candidate for county judge; that he had resigned his nomination; that appellant Wilkins was then nominatedi by petition, and appellant Gill was likewise nominated for county attorney, and they were regarded and treated as the nominees of that party for those offices; that no one else was contesting the nominations, or claiming to have been nominated by the Republican party in any manner for either of these offices. It is claimed that the clerk was authorized, by a technical, close •construction of the statute, to diregard these petitions', be cause of the unimportant informalities supposed to exist and already noted. Concerning the regularity of nomination petitions, the supreme court of New York, in re Adams, 21 Misc. Rep. 396, 47 N. Y. Supp. 543, per Herrick, J., said: “The courts should not be astute to discover, or overwilling to accept the discovery by others of, technical defects — 124 — upon which such certificates of nomination can be declared null and void and set aside, but should hold that when the spirit and substance of the laws have been -observed, that is sufficient.” 'This court has had occasion to review the act of a> clerk who refused to place the names of certain candidates on the ballot because of defects in the certificate of nomination. In the case of Hollon v. Center, 102 Ky., 119, 19 R., 1134, 43 S. W., 174, Center and others were claiming to be the nominees of the Democratic party for the various county offices of Wolfe county, claiming their nominations by virtue of the action of a party primary election. The certificates of nomination filed by the chairman and secretary of the county failed to state the residence of either of the nominees, or of' the chairman or secretary, nor were they acknowledged, By the statute they were required to be acknowledged before some officer authorized to administer an oath, and the residences of the candidates and certifying officers must be given. The clerk refused to recognize the nominations, or to place the names on the official ballot as the nominees of the Democratic party. It was shown “that it was in the actual and personal knowledge of appellant [the clerk] that appellees had been nominated at the primary election, duly held, as candidates for the several offices mentioned in the various certificates filed with him, and, moreover, that he did not refuse to put their names on the ballots because he was unaware of their regular nomination, but upon the sole ground the certificates did not conform to the formal requirements of the statutes.” This court held', in an opinion by Judge Lewis, that as there was no other person claiming the places on that ticket, and as the regular party authorities did not question the nominations purporting to be made for their party, the clerk — 125 — should have placed their names on the'ballots; and the writ of mandamus to that end was allowed to go. It is further argued for appellees that the petitions of nomination failed to state that the petitioner® were themselves members of the Republican party. It is not claimed that in fact they were not. On the contrary, it is conclusively proven in this record that they were, — at least, that more than the statutory requirement of 100 were. It would seem to be a sufficient answer to this argument to say that the statute does not require the petitioners to state that they are members of the party; it does require them to say that: the candidate is a member of the party for which he is being nominated, and that the petitioners are qualified and desire to vote for him for that office. Argument is made that if it were permissible for those not members of a party to nominate a candidate for it by petition, the opponents of a political party may name both tickets. Not so. For a party can by its governing authority easily and effectually prevent this by making nominations by primary election or convention. ‘ But even were the danger as suggested, it is a matter of legislative oversight, which the courts are powerless to remedy, however desiring. This objection is based, it is said, upon the decision of this court in Southall v. Griffith, 100 Ky., 91 18 R., 599), 37 S. W., 577. As that case is much relied on by appellees, we deem it proper to carefully notice it. In that ease Southall brought his action for a writ of mandamus against Griffith, clerk of the" county court, to cause to be printed on the ballot Southall's name as a candidate for Congress in the Second district of this State, under the device of the People’s parly (being a plow aDd hammer), and under the name or title of that party ticket. The circuit court disallowed the writ, which was affirmed upon appeal. Southall failed to — 126 — show affirmatively to the court that he was entitled to go upon the ballot as the nominee of the People’s party, for he did not stare', nor was it shown, that the People’s party had failed to nominate by convention or primary election a candidate for Congress for the Second district, to be voted for at that election; nor did it appear that Southall was himself a member of the People’s party, nor thar any of lbs petitioners were. Tt is a familiar rule of pleading that one applying for the writ of mandamus must show affirmatively the facts entitling him to have it issued, and that his pleadings will be most strongly construed against him. We can not infer that the court intended to add to the statute any requirement not provided by the Legislature. What the court evidently intended to decide, and what we hold that the court in that case did decide, was that if the clerk failed and refused to place upon the ballot the name of one claiming to be the nominee of a party, before a court would interfere to issue its writ of mandamus to compel the clerk to place the name upon the ballot as the nominee of that party all the facts must be Shown affirmatively that would entitle the party complaining to the relief sought, and that an absence of such material allegation in the petition filed in the circuit court for the writ of mandamus would be a suffic'eDt reason for withholding the writ. To hold otherwise would he to say that the clerk has a judicial discretion in such matters; that á duty would devolve upon him (at least, the privilege would) to inquire into the party affiliation of each of the signers of the petition, and not only 1o inquire into them, but to determine them and adjudge them, and not only that, but to inquire iuto and determine the fact of the signers’ places of residence, of their legal quahficatioas to vote, of the fact of the candidate’s qualification to hold the office for which he is attempting — 127 — to be nominated, and of the fact of his party affiliation. It would be furthermore to hold that this subordinate executive officer was clothed with judicial functions and jurisdiction, and he might determine these -matters within his own ¡mind, settling them within his own bosom, as no provision is made for a record, of his conclusions of the particular facts. He can not swear witnesses, nor coerce, their attendance. The statute provides no appeal from his decision, if he should he said to he entitled to make such decision There would be no end of confusion and no limit to the opportunities for fraud and mischief upon the part of this class of officials. Such a jurisdiction is nowhere warranted fcy either the laws or the] spirit of the laws of this Commonwealth. We must conclude that the Legislature never contemplated conferring upon this subordinate executive official such extraordinary power and authority over a matter of such vast moment to the people of the State. His duties arc clearly defined by the statute, and are mandatory in their nature. When a petition, with the requisite number of names signed to it, giving the postoffice addresses and residences of the signers, stating in substance,so that it may be fairly gathered that the terms of the statute were complied with as to the name and party affiliation of the proposed candidate, the office to which he is nominated, and the party tifie and device selected by the petitioners, is filed within the statutory time, it then becomes the duty of the clerk to place the name of such candidate upon the official ballot as the nominee of such party, unless there shall be filed within the statutory period of allowance-' a certificate of nomination for the same office by the sarnie political party, either by convention or primary election, or unless a previous nomination by petition for the same party and same office has been filed, or, in case — 128 — oí a vacancy by death or resignation or removal, or a previously nominated candidate, by the certificate of nomSination by the county chairman of that party. We are of opinion that appellants were entitled to have had their names printed upon the official ballots for the election to be held in Todd county in November, 1901, as the candidates of the Republican party for the offices, respectively. of county Judge and county attorney. The next inquiry is, What is the effect of the failure of the clerk to place appellants’ names on the ballot under the title and device of the Republican party, under the circumstances named? It is not every error, trivial or even serious, that will invalidate an election. Nor, indeed-, will the fraud of the officers in charge of the election, or of other persons, necessarily void it. As is Well said in McCrary, Elect. (4th Ed.), pp. 522, 523, sec. 724: “The weight of authority is clearly in favor of holding the voter, on the one hand, to a strict performance of those things which the law requires of him, and, on the other, of relieving him from the consequence of a failure- on the part of election officers to perform their duties according to the letter of the statute, where such failure has not prevented a fair election. The justice of this rule is apparent, and it may be said to bo the underlying principle to be applied in determining this question. The requirements of the law upon the elector are in the interest of pure elections, and should be complied with, at least in substance, but to disfranchise the voter because of the mistakes or omissions of election -officers would be to put him entirely at the mercy of political manipulators. Tbe performance by the election officers of the duties imposed upon them can be reasonably well secured by providing a penalty for failure so to do.” But as said in re Kneass, 2 Pars. Eq. Cas., 590: “The true — 129 — .policy, to maintain and perpetuate the vote by ballot, is found in jealously guarding its purity; in placing no fine-drawn metaphysical obstructions in the way of testing election returns, charged as false and fraudulent; and in insuring to tire people, by a jealous, vigilant, and determined investigaiion of .election frauds, that there is a saving spirit in the public tribunals charged with sucb investigations, ready to do them justice if their suffrages have been tampered with by fraud, or misapprehended through error.” It may be stated as the general rule that the misconduct of election officers, or irregularities on their part, will not ■vitiate an election, unless it appears that the result' was thereby affected. 10 Am. & Eng. Enc. Law, 670; McCrary, Elect., 574; Creech v. Davis (21 R., 325), 51 S. W., 428. This general rule is expressly a] plied in this State by statutory enactment. A part of section 12, c. 5, Laws Ex. Sess., 1900, is as follows- ‘‘In case it shall appear from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor eontestee can be adjudged ■to have been fairly elected, the circuit court, subject to revision by appeal to the court of appeals, may adjulge that there has been no election. In such event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify.” It becomes important, in view of the foregoing, to determine whether the action of the county court clerk was fraudulent. It is claimed, as has been staved, that he re Med rpm I be instructions of the then attorney general of the State in the interpretation of Southall v. Griffith, 100 Ky., 91, 18 R., 599, 37 S. W., 577. That the opinion was susceptible of such construction by the clerk seems to be evident enough. i This — 130 — fact, coupled with the instructions of the attorney general, would seem to indicate that the clerk did not act from a corrupt or fraudulent motive; and therefore, under the statute above quoted, wre can not hold that the election was void. But for the opinion above, and the doubts attending its proper construction, the other facts in the record wmuld have been sufficient to have justified a contrary conclusion. However, che official is entitled to the benefit of the presumption that he acted honestly, and with jhe intent to discharge his duties within the intent of the law. That the omission of the names of appellants from the ballot did affect the result of the election is a matter that seems to be susceptible of reasonably clear demonstration. But this is not enough. It must also be made to appear that the cause of this result was ‘*'n fraud, intimidation, bribery or violence in the conduct of the election,” in the language of the statute. Failing to fnd snffieent evidence of the latter conditions, the judgments of the lower court must be affirmed. The whole court sitting. Judge Paynter concurs in tbe conclusion of tbe court, but does not agre-1 to all the reasoning of tbe court.