Whitaker v. Swanner

Opinion by Judge Settle Affirming. This action was instituted by the appellant, Henry M. Whitaker, in the Laurel Circuit Court to compel by mandatory injunction the clerk of the county court to remove from under the “log cabin” device of the Republican party, on the poll books to be used at the approaching November election, the name of appellee, George W. Swanner, as the Republican nominee for sheriff of Laurel county, and place in lieu thereof the name of appellant as such nominee of the. party. It is averred in the petition that a primary election was held in the county December 17, 1904, by resolution and call of the Republican party committee to nominate Republican candidates for county offices; that appellant and appellee Swanner were candidates before and in such primary election for the Republican nomination for the office of sheriff, and both were voted for; but that the Republican county committee, after canvassing and counting the ballots cast in the primary election, wrongfully found that appellee Swanner had received a majority of the votes east, illegally declared him the Republican nominee for the office of sheriff, and gave him a certificate to that effect, by means of which he secured, as such nominee, the position under the Republican device upon the ballots for use at the November election, 1905. It is further averred in the [283] petition that appellant received more Republican votes in the primary election than appellee Swanner, and that the apparent majority of the latter was in large measure made up of Democratic votes cast in four of the election precincts of the county for him, and which were illegally counted for him, and that the primary election as to these four precincts should have been declared void by the county committee, or they should, in canvassing and estimating the vote, have thrown out and refused to count the Democratic votes cast therein. It was also averred in the petition that many of the votes received by appellee Swanner were purchased by him and for him with money and whisky, for which reason they should not have been counted, and, in addition, that appellee by such purchasing’ of votes violated the election laws, disqualified himself for the office of sheriff, and forfeited his right to hold the same, if elected, on account of which the county committee should have refused to declare him the Republican nominee, and the county' clerk should have refused, to place his name on the ballots to be voted for as such at the approaching November election. The county court clerk, F.' P. Elliott, and George W. Swanner, were by the petition made defendants in the action, and together they filed special and general demurrers to the petition. The special demurrer questioned the court’s jurisdiction; the general demurrer, the sufficiency of the petition. Both demurrers were sustained, and, appellant refusing to plead further, the action was dismissed. It will be observed that the petition concedes that the primary election was duly called by the Republican county committee, which is the governing authority; that it was held by officers of their appointment; and that, following the holding thereof, the [284] county committee received, canvassed and counted the votes, whereby they found and decided that the appellee, George W. Swanner, had received a majority of the votes cast, declared him the Republican nominee for the office of sheriff, and gave him a certificate to that effect, by virtue of which his name was placed by the county court clerk with the Republican ticket under the party device on the ballots provided for use at the succeeding November election, as the Republican nominee and candidate for the office of sheriff of Laurel county. A primary election, for nominating party candidates for office may be held by direction of the governing authority of such party, but to be lawful it must be conducted as provided by the statute of this State on that subject. (Brown v. Rep. Ex. Com., 119 Ky., 720, 68 S. W., 622, 23 Ky. Law Rep., 2421; Young v. Beckham, 115 Ky. 246, 24 Ky. Law Rep., 2135, 72 S. W., 1092, 1094; Mason v. Byrley, 84 S. W., 767, 26 Ky. Law Rep., 487; Beasley v. Adams, 82 S. W., 249, 26 Ky. Law Rep., 573; Henry v. Secrest, 114 Ky., 677, 24 Ky. Law Rep., 1505, 71 S. W., 892; Taylor v. Dem. Com., &c., 87 S. W., 782, 27 Ky. Law Rep., 1041, 120 Ky., 672.) The petition of appellant fails to allege that the primary in question was not conducted as required by the statute. All the authorities, supra, hold that when one who Was a candidate for a party nomination at a primary election claims to have been illegally deprived of the nomination by the wrongful acts of the governing authority of the party, either in the manner of conducting the election or in ascertaining and determining the result, he must, if relief is sought, resort to the remedy provided by Ky. Stats. 1903, sec. 1563, which allows the right of contest before the governing authority of the party, who shall thereupon de [285] cide which, if either, of the parties to the contest is entitled to the nomination; and it has been repeatedly held by this court that such decision of the governing authority of the party can not be reviewed or set aside by the courts. (See authorities, supra.). It does not appear from the averments of the petition that appellee Swanner’s right to the nomination in question was contested before the county-committee by appellant. Such a contest was his only remedy, and, having failed to pursue that remedy, he can not, as here attempted, assert in the circuit-court claim to the Republican nomination for sheriff, as that tribunal has no jurisdiction of the matter. Consequently the demurrer to jurisdiction was properly sustained. We think the circuit court was also without jurisdiction to determine in this action the further-question raised by the petition, viz., that in securing his nomination by the purchase of votes with money and whisky appellee Swanner disqualified himself for holding the office of- sheriff, if elected, and forfeited his right to the nomination. If he secured votes at the primary election by bribery, and appellant in a contest before the county committee had made proof of that fact to the satisfaction of the committee, it would have been their duty to determine to what extent the fairness.and validity of the primary was affected thereby, or whether appellee Swanner should have been refused the nomination as the Republican candidate for sheriff by reason thereof. The question of whether or not he was guilty of the offense of bribery in connection with the primary election can not be collaterally inquired into, as here attempted, but can be determined in a direct proceeding and trial by jury under indictment, (Commonwealth v. Jones, 73 Ky., 725.) [286] As appellant’s right to have his name placed on the ballots and under the Republican party device is dependent upon whether he received at the hands of his party the nomination for the office of sheriff at the primary election, and the statements of his petition make it certain that the governing authority decided and declared that appellee Swanner was, in that election, nominated by the Republican party as their candidate for that office, it follows that the general demurrer to the petition should have been sustained, and the action dismissed, as was adjudged by the lower court. Wherefore the judgment is affirmed.