Derickson v. Conlee

Opinion op the court by Judge Hobson. Affirmed. On February 26,1908, an election was field in Powell county to take tfie sense of tfie voters on tfie question as to wfietfier or not spirituous, vinous or malt liquors sfiould be sold in tfie county. Tfie election resulted in a majority against tfie sale on tfie face of tfie returns, and tfie election commissioners certified tfie result to tfie county court. Thereupon appellees filed notice of contest which, came on to be beard before appellants, tfie county judge, and tfie two magistrates residing nearest to tfie county seat. Tfie contestees filed tfie following special demurrer:“Now, come tfie contestees above named by attorneys, J. D. Atkinson and C. F. Spencer, and demur specially to tfie jurisdiction of this court and to tfie proceedings -herein,' for they say that neither tfie County Court notr rtfie County ieilectilon commissioners nor tfie county board of contest have any jurisdiction to bear and determine this contest.” On tfie bearing of tfie demurrer appellants entered tfie [375] following order: “The court, having heard the argument of counsel on the special demurrer of the contest to the jurisdiction herein, and being sufficiently advised, considers that this court has no jurisdiction of this contest, and therefore sustains the demurrer to which the contestants except and 'object and pray an appeal to the circuit court, which is granted.” Thereupon the contestants brought this suit in the Powell Circuit Court against appellants, alleging that, desiring to contest the election, they filed within ten days 'after the final action of the examining board in the office of the clerk of the Powell County Court a written statement of the grounds of contest, and caused a copy of it to be served on the county judge; that they gave notice by printed posters at the courthouse door, and three 'ether public places in the county, and also caused it to be published in the Clay City Times, a newspaper published in the county, for two consecutive issues, beginning with the first issue of the paper after it was filed in the office of the county clerk. They set "out in the petition the notice of contest, and alleged that' the contestees filed their demurrer as above set out. They alleged that thereupon the appellants declined to hear the contest, deciding that they had no jurisdiction to determine it: They prayed that the appellants be required by mandamus to hear and determine the contest. Appellants filed an. answer to which the circuit court sustained a demurrer and awarded the mandamus as prayed. From this judgment the appeal before us is prosecuted. In Shindlar v. Floyd, 118 Ky. 468, 81 S. W. 668, 26 R. 332, it was held by this court that the county judge land two justices of the peace residing nearest the court house are the proper board [376] to hear and determine, the contest of a local option election. See, also, De Haven v. Bowmer, 125 Ky. 800, 102 S. W. 306, 31 R. 416. These eases are conclusive that appellants are the proper hoard to hear the contest. It is insisted here for the 'appellants that proper notice of the contest had not been given, and that for this reason they were right in holding that they were without jurisdiction. The statute regulating the matter is subdivision 2, Sec. 2566, Ky. St. (Russell’s St. Sec. 4063, subd. 2): “Any number of the citizens and legal voters, but not less than ten, of the county, city, town, district or precinct in which the election has been held, shall have the right to contest any election held under this law, and shall be designated the contestants. Such contestants shall, within ten days after the final action of the examining board, file in the office of the clerk of the county court a written statement of the grounds of the contest, and shall cause a copy thereof to be served on the county judge, and shall give notice thereof by written or printed notices to be posted at the court house door of the county, and in three or more public places in the county, city, town, district or precinct in which the election has been held, and shall cause the same to be published in some newspaper of the county, when possible, for two consecutive issues, commencing not later than the first issue of the paper after filing the statement. When a notice of the contest shall be executed on the county judge, the certificate' shall not be recorded.” It is alleged in the petition that notice was given as required by the statute, and these allegations of the petition are not traversed in the answer. It is alleged in the answer that no notice of the grounds of contest filed in the county clerk’s office on March [377] 5, 1908, was served on the county judge after the filing of the contest with the county clerk. It is also shown in the answer that it was agreed on the hearing,'before 'appellants that a copy of the grounds of the contest as shown by paper filed of date March 5,1908, was served on the county judge before March 3, 1908. It is insisted that, as the notice was served on the county judge on March 3d and filed with the county clerk on March 5th ,or two days afterward, the service on the county judge was not good, as the paper had not then been filed with the county clerk. It may be true that the paper served on the county judge was not filed in the county clerk’s office until March 5th; but it may also be true that ¡another copy of the grounds of contest was filed with the county clerk before the service on the county judge. The affirmative matter in the answer does not therefore amount to a traverse of the allegations of the petition. But, aside from this, the statute requires the notice to be filed in the county clerk’s office within ten days 'after the final action of the examining board, and whether a copy is served on the county judge before or after it is filed in the county clerk’s office is not material. It must be filed in the county clerk’s office within ten days, but, when this is done, it is not necessary to serve it again on the county judge if the paper was served on him before it was filed in the county clerk’s office.- The purpose of the statute is to"give the county judge notice of the proceeding; and this notice can be given by serving a copy of the contest on him as well before as after it is filed with the county clerk. The statute does not require that the notice shall be served on the county judge after it is filed in the county clerk’s office, and it should be [378] liberally construed -with the view to promote its object. Judgment affirmed. Petition for rebearing by appellant overruled.