Pettit v. Yewell

Opinion of the court n\-

JUDGE PAYNTER

Affirming.

The parties to this action were opposing candidates for the office of mayor of the city of Owensboro. The returns of the election officers gave appellee more than 50 majority. The ballots were recounted by the lower court, which resulted in his majority being increased to over 70. The grounds of contest may be summarized as follows: (1) That enough ballots counted for the appellee should have been rejected, by reason of the violation of the mandatory provisions of the statute, as would give appellant a majority of all the legal votes cast. (2) The appellee is not eligible to the office, because lie was not a freeholder at the time of the election.

There were some ballots counted by the election officers and lower court for the appellee where the crosses were not exactly within the circle, some, where the crosses were made by the voters with the butt end of the stencil, produced a circle rather than a cross. It is claimed, if this character of ballots had been rejected, the appellant would have received a majority of the votes cast. The argument is based principally upon llié ground that a part of section 1471, Kentucky Ptatutes, was repealed by the act of October 24,1!)()0. The part of the section that is claimed was repealed reads as follows: “No ballots shall be rejected for any technical error, which does not make it impossible to determine the voters’ choice.” The act approved October 2-1. 1900, was to amend an act entitled, “An act to further regulate the elections,” which became a law March 11, 1898. Acts 1900 (Hp. Scss/) p. 27. It does not purport to be a complete law on the subject of elections. It is simply an amendatory act of the law then in force. Section 17 of the act reads as follows: “All acts or parts of acts, in’ conflict with this act are, to the extent of such conflict, repealed.” There is nothing in the act which is in conflict with that part of section 1471 which provides that no ballots shall be rejected for any technical error which does not make it impossible to determine the voter’s choice. Every disputed ballot above referred to, when it was possible to' determine the voter’s choice, should liáve been counted. Houston v. Steele (98 Ky., 596) (17 R., 1149) (34 S. W., 6).’ The rule for the construction of statutes announced in Broaddus’ Devisees v. Broaddus’ Heirs, 10 Bush., 299, does not apply, because the act of 1900 does not purport to be all the law for the government of elections; on the contrary, it keeps in force all acts and parts of acts not in conflict with it.

The testimony shows that the Republican judge'at precinct No. 12 explained to some voters, when he handed them ballots, how they could vote the straight Republican ticket (appellee’s name being- under Republican device). His conduct was in violation of law and very reprehensible. There is no evidence as to how these parties voted, to whom these explanations were made, nor is there any evidence that the appellant was prejudiced thereby. The statute prohibiting judges from being guilty of such conduct is mandatory as to the officer, but we are unwilling to disfranchise the voters of that precinct because of his conduct.

Under the charter of the city of Owensboro, no one is eligible to. the office of mayor unless he is a freeholder. The appellee admits that he bought a lot 20x80 feet for the express purpose of making himself eligible to the office of mayor. He contracted to pay $150 for it, and paid $50, and executed his note for the balance of the purchase money. The vendor made him a deed for it, but he did not have it recorded until after the election. It is urged: (1) That it did not make him eligible to acquire property for "the express purpose of making himself a free-holder; (2) that, as ■the déed was not recorded at the time of the election, he was not a freeholder. If the purchase was not a sham one, but actually made for the purpose of making himself eligible to the office of mayor, it was a valid transaction, and met the requirements of the charter provision. If one is actually a freeholder in the city, the motive for becoming so is not a (subject of inquiry. He is as much a freeholder whether he became so exclusively for a business purpose or for a political one. The instant that the deed was executed and delivered, the appellee was vested with a legal title to the property and was a freeholder. The mere fact that the vendor might have practiced a fraud on his rights, and thus deprived him of the right to hold the property against an innocent purchaser, did not postpone the vesting of the title nor deprive him of the right actually acquired. His title to the property was perfect, although he did not make a record evidence of it until after the election.

The judgment is affirmed.

Whole court sitting.