Taylor v. Democratic Committee , 120 Ky. 672 ( 1905 )

Opinion by

Chief Justice Hobson

Reversing.

E. H. Taylor, Jr., and L. F. Johnson were candidates for the Democratic nomination for the office of Representative in the G-eneral Assembly at a primary election held on November 15, 1904. On the face of the returns, Johnson received a majority of four votes. A certificate of nomination was. issued to him by the committee on November 19th, and on, November 30th Taylor gave notice of contest. The committee refused to' consider the contest on the ground that it had adopted a resolution limiting the time for beginning a contest to 10 days, and that, Taylor’s, notice not having been given in time, they could not consider it. Taylor then brought this suit against the committee to obtain a mandatory injunction requiring them to meet and hear the contest. The circuit court dismissed his petition, and he appeals.

It was held in Hill v. Holdam, this day decided, that the time within which a contest must be begun js regulated by the statute. The resolution of the committee fixing a different time from that allowed by law was therefore void. The act of October 24, 1900 (see sec. 1596a, snbsec. 12, Ky. Stats., 1903), excepts from its provisions contest for the office of Representative in the General Assembly, and so these contests are governed by the former law, which provides that in case of a Senator or Representative the notice of the contest must be given within 15 days. (See sec. 5 of art. 8, p. 148, c.'65, of the act to regulate elections, approved June 30, 1892.) So far as members of the General Assembly go, contests are regulated by the former law; and, as notice was given in this case within 15 days, it was in time.

Taylor alleged in his petition that one of the defendants (George Johnson) is a brother of the contestee, L. F. Johnson, and is thereby disqualified from acting in the trial of the contest. The rule of the common law is that no man may be judge in his own case, and if he acts the judgment is void. (Cooley on Constitutional Limitations, side page 411; 17 Am. & Eng. Ency. of Law, p. 732.) The rule applies not only to judges, but also to executive or ministerial officers. Thus it has been applied to probate judges (Sigourney v. Sibley, 21 Pick, 101, 32 Am. Dec., 248); also to county commissioners laying out a highway (Wilbraham v. County Commissioners, 11 Pick., 322), or to jurors (Davis v. Allen, 11 Pick., 466, 22 Am. Dec., 386), or to appraisers of land sold under execution (Wolcott v. Ely, 2 Allen, 338), or to a referee (Strong v. Strong, 9 Cush., 560). There are many other cases in which the principle has been applied. (23 Am. & Eng. Ency. of Law, 370; Hall v. Thayer, 7 Am. Rep., 513; Lillard v. Lillard, 44 Ky., 340; Knott v. Jarboe, 58 Ky., 504; Phillips v. Tucker, 60 Ky., 69.) Under these principles, the brother of the contestee is not qualified to sit.

Appellant also alleged that three members of the committee.were contestees in a contest over their’ right to be committeemen. This would not disqualify them from acting. They may act as long as they are members of the committee. If the contests are decided against them, then their powers cease, but until then their powers are not affected by a contest. He also alleged that two other members of the committee were friends of Johnson, and on the day of the election, by money and promises of other things, induced voters to vote for Johnson and against him. While this might create some bias in their minds, in the absence of any statute disqualifying them from acting, they, having no direct interest in the proceeding, and not being ldn to either of the parties, are not disqualified upon common-law principles. The allegations as to the use of money or the promise of other things to influence votes Were denied, and are not proven. In heated elections, most men in the county take sides, and, if the fact that they did so was sufficient to disqualify them, few members of the committee in many cases could act. They act under their oaths, and are responsible under the statute if they do not act honestly and faithfully.

Section 1563, Ky. Stats., 1903, on this subject, provides: “Before entering upon the discharge of the duties set forth in this article, the committee or governing authority shall be sworn by some officer authorized by law to administer an oath to faithfully and honestly discharge the duties herein imposed; and the failure upon the part of any member of the committee or governing authority to discharge such duties faithfully and honestly .shall be deemed a misdemeanor, and the persons so offending shall, upon indictment and conviction in the circuit court of the county or district, be fined not less than one hundred ($100) dollars nor more than five hundred ($500) dollars, and be imprisoned in the county jail not less than sixty days nor more than one year.”

Among other thing’s, Taylor alleged that he had been in fact elected, and prayed the court to re-count the vote, and so determine. This can not be done. The governing authority of the party, under the statute, is given authority to hear and determine the contest. Th,e committee may also determine the form and manner of the proceedings in the case. It is its duty to receive legal evidence, and to give it such weight as, in their judgment, faithfully and honestly exercised, it is entitled to. The court can require the committee to act, and when they act the law requires of them that they shall faithfully and honestly discharge their duties. In acting they are discharging official duties, and should discharge them according to law. While they may be compelled by the court to act, the court can not by mandamus or mandatory injunction control their discretion. This they must exercise under their oath of office, and according to their honest judgment.

Judgment reversed and cause remanded for further proceedings consistent herewith.

Judge Paynter not sitting.