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fendant admitted the truth of the statement, ceed its power in providing that the one who that he had failed to file any pre-election received neither a majority nor a plurality of statement, but attempted to excuse his de- the votes should be declared elected and entifault because he said that up to the day oftled to the office? the election neither he nor any one else in At the threshold it may be admitted that his behalf had spent any sum whatever in his it was competent for the Legislature to enact campaign, and that it was therefore unnec- the proviso, unless inhibited from doing so essary to file a statement. A demurrer filed by some provision of the Constitution propto the answer was overruled, and plaintiff de erly construed manifesting an intention on clining to plead further, his petition was dis- the part of the people in adopting that instrumissed, followed by a judgment that defend- ment to withhold such power. Our Constituant was duly elected and entitled to the office, tion creates a number of offices, from Governand the canvassing board was directed to is- or down, and in the sections creating them it sue to him a certificate of election. Com- is provided that they shall be chosen at an plaining of that judgment, plaintiff prosecutes election by the people in which all qualified this appeal.

voters may participate. It is so provided [1] In the recent case of Sparkman v. Say- with reference to the office of justice of the ler, 180 Ky. 263, 202 S. W. 649, we held that peace by section 99 of that instrument, wherethe requirement of the act referred to that in it is said, “There shall be elected in 1894 both pre-election and post-election statements * * * in each justice's district one justice be filed was mandatory, but that the require- of the peace,” etc., and throughout that instrument as to the specific time when they should ment it is everywhere manifest that the qualbe filed was directory, and that if the pre- ified voters of the territory to be affected election statement was filed a sufficient time shall elect the officers charged with the adbefore the election to serve the purpose of the ministration of public affairs, and by the act it would be sufficient. Under the inter- same process of election such voters shall have pretation thus given, it is clearly manifest the right to determine whether certain questhat the answer failed to allege a defense, tions, measures, or policies shall or not be since it is admitted therein that no pre-elec- adopted within the territory to be affected. tion statement whatever was filed, and it is Other parts of it contain provisions, or emnot a sufficient excuse for a failure to file power the Legislature to enact provisions, for it that the candidate had spent no money in the purpose of safeguarding the ballot and his campaign, because it is as necessary that to insure the purity of elections and the elimsuch fact be divulged before the election as ination of fraud, so that the sovereign voice it is to make known sums that had been of the voter as expressed in the election shall spent, if any, for legitimate purposes. The be free, full, and fair, and that the result same reasoning would justify a failure to shall represent the combined will of those file the certificate when the candidate, al- participating in the election in the manner though he had used campaign funds, had done provided by a government instituted for and so within the limitations and for the purposes by the people. prescribed by the statute; i. e., that he had In section 6, being a part of the Bill of not violated the statute, and the necessity for Rights, it is said, "All elections shall be free the statement was removed. The court there- and equal." It then becomes necessary to fore committed error in overruling the de- inquire what the makers of the Constitution, murrer to the answer, and in adjudging the as well as the people in adopting it, meant by defendant elected and entitled to the office. the use of the word "election" as used there

[2] A more serious question is presented in, and what was meant by the adoption of upon the contention of plaintiff that under section 6, supra. All the authorities agree the proviso in the latter part of section 11, that the legal definition of an election, as well supra, of the act he should be declared elect- as that which is usually and ordinarily uned and entitled to the office. It will be notic- derstood by the term, is a choosing or a seleced that in the section referred to it is first tion by those having a right to participate provided that if any candidate violates any of those who shall fill the offices, or of the of the provisions of the act (one of which is adoption or rejection of any public measure the filing of the pre-election statement) in a affecting the territory involved. 15 Cyc. 279; contest over the election, “said nomination or Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; election shall be declared void,” and this is Saunders v. Haynes, 13 Cal. 145; Seaman v. followed by a proviso that the candidate Baughman, 82 Iowa, 216, 47 N. W. 1091, 11 who receives the next highest number of L. R. A. 354; State v. Hirsh, 125 Ind. 207, votes, and who has complied with the provi- 24 N. E. 1062, 9 L. R. A. 170; Bouvier's Law sions of the act, shall be declared elected to Dictionary. The definition given by Mr. Webthe office if it is the general election, or nom-ster is: inated if it is a primary election. In this "The act of choosing a person (or measure) case we are not concerned about the effect of to fill an office or employment, by any manifessuch a provision in a contest over a nomina- tation of preference." tion at a primary election, for the one here In fact this definition of the term was involved is a general election to fill the office. thoroughly ingrafted into the law without

adoption of our Constitution, but we need go This is the general rule where the number of no further than that instrument itself for electors is indefinite. So the only way to defeat a definition of the word, for in section 147 the election of a candidate at an election is by

voting for another candidate." therein it is said:

To the same effect are the cases of Com"The word 'elections in this section includes the decision of questions submitted to the vot monwealth v. Cluley, 56 Pa. 270, 94 Am. Dec. ers, as well as the choice of officers by them." 75, Barnum v. Gilman, 27 Minn. 466, 8 N. W.

It is true that by the language quoted the 375, 38 Am. Rep. 304, Sublett v. Bedwell, 47 term was made to include the decision of Miss. 266, 12 Am. Rep. 338, People v. Clute, questions by the voters, as well as the selec- 50 N. Y. 451, 10 Am. Rep. 508, State v. Giles, tion of officers, but it is therein said that 2 Pinn. (Wis.) 166, 52 Am. Dec, 149, People v. when applied to the selection of officers it is Pease, 27 N. Y. 45, 84 Am. Dec. 268, Howes a choosing by the people of the persons who v. Perry, 92 Ky. 260, 17 S. W. 575, 13 Ky. shall fill the office. This same definition of Law Rep. 483, 36 Am. St. Rep. 591, Spruill the word “election” is approved in the cases V. Bateman, 162 N. C. 588, 77 S. E. 768, Ann. of Speed & Worthington v. Crawford, 3 Metc. Cas. 1915B, 515, State v. Bell, 169 Ind. 61, 207, and Police Commissioners v. City of 82 N. E. 69, 13 L. R. A. (N. S.) 1013, 124 Am. Louisville, 3 Bush, 597, wherein it is said St. Rep. 203, and a great number of cases that:

found in the annotated notes to many of the “The term 'election' in its constitutional sense cases and authorities cited. A few excerpts and meaning, is used to designate a selection from some of the cases referred to illustra. by the popular voice."

tive of the reasons prompting the courts in It is therefore necessary to determine what accepting and applying the rule as essential was regarded as essential to express the to the American idea of an election will be choice of the people as understood and in- sufficient. tended by the use of the word "election" in In the case of Sublett v. Bedwell, supra, the Constitution. In the volume of Cyc. su- the court in treating of the question said: pra (308), it is said :

"The foundation of our system of government "In the absence of any statute expressly re- reposes upon the ultimate sovereignty of the quiring more, a plurality of votes is sufficient people. Those who exert authority and discharge to elect. And a fortiori, in the absence of any the functions of government in any of the deprovision in the Constitution requiring a civil partments among which its powers are distributofficer to be elected by a majority of votes a ed, come into existence and perform the funcstate Legislature may lawfully provide that a tions respectively assigned them, according to plurality of votes shaïl be sufficient to elect any the modes prescribed by the people in the orofficer."

ganic law, framed by their representatives and In the seventh edition of Cooley's Consti- themselves the selection of a class of officers by

adopted by themselves. When they reserve to tutional Limitations, 931, it is said:

popular election, a fundamental principle (unless “Unless the law under which the election held otherwise expressly provided) is, that the person expressly requires more, a plurality of the receiving a majority of legal votes over his comvotes cast will be sufficient to elect. ** * If petitor is entitled to the office. It cannot be several persons are to be chosen to the same of said that the candidate has been elected unless fice, the requisite number who shall stand high he has received a majority of the legal votes est on the list will be elected, but without such cast; he is not the choice of the people. If the a plurality no one can be chosen to a public majority make choice of a candidate under some office."

personal disability, disqualifying him from tak

ing and enjoying the office, the utmost that can McCreary on Elections, $ 206, thus states be said of it is, that there has been no election." the rule: ..

Further along in the opinion, in denying “In the absence of any statutory provisions the right of a minority candidate to the ofexpressly requiring more, a plurality of the votes cast will elect."

fice because of the ineligibility of the one reAnd in section 330 the author says with ceiving a majority or a plurality of the votes reference to the election of the minority can

it is said: didate when his opponent is for any reason the great weight of American authority, and,

“Without going into the general reasoning, ineligible to hold the office:

as we think, upon the soundest consideration, is, "Thus it will be seen that the weight of au- that although the majority vote for a disqualithority in this country is decidedly against the fied person, the votes so cast are not illegal, and adoption here of the English doctrine. And we therefore to be treated as naught; but the rethink that sound policy, as well as reason and sult is, if the ineligible candidate cannot take authority, forbids the adoption of that doctrine the office, the electors have failed to make a in this country. It is a fundamental idea with choice. In truth, there has been no election at us that the majority shall rule, and that a ma- all, and the minority candidate has no right to jority or at least a plurality, shall be required the office. State of Georgia v. Swearingin, 12 to elect a person to office by popular vote. An Ga. 24; State ex rel. Off. v. Smith, 14 Wis. election with us is the deliberate choice of a ma- 497; State v. Giles, 1 Chand. [Wis.] 112 [52 jority or plurality of the electors. Any doctrine Am. Dec. 149] ; Saunders v. Haynes, 13 Cal. which opens the way for minority rule in any 152; * * The Answer of the Supreme case is anti-Republican and anti-American." Court of Maine, 38 Me. 597. The case of Vance In 9 R. C. L. p. 1115, the text says:

and Abbott in United States Senate, recently.

was considered upon its legal merits and decided "The plan almost universally adopted in ref- in accordance with the great weight and merit erence to the election of officers

pro- of American judicial adjudication.' vides for the recognition of the choice of the majority of those voting where there are but

Our own court, where the same question two candidates for election, and of a plurality was involved concerning the right of a miwhere there are more than two candidates. nority candidate to be declared elected be

203 S.W.-20

*

*

cause the one receiving the majority or plu- he receives a majority or a plurality of all rality of the votes died before the polls closed, such legal votes so cast. From this unaniin the case of Howes v. Perry, supra, said: mous and unbroken line of judicial defini

"It is a principle of free elections by the peo- tions of what is included in the term, it canple, firmly fixed and understood, that no person not be gainsaid that the idea of an election is or can be regarded duly elected to an office unless when only two persons are voted for, he in all republican forms of government is receives a majority of the votes cast for them, that no one can be declared elected, and no or receives a plurality in case there are more measure can be declared carried, unless he than two voted for. Any other rule would be subversive of the fundamental idea of elections or it receives a majority or a plurality of by the people under our form of government, the legal votes cast in the election, and this which is, that only that person shall be entitled was the understood meaning, definition, and to hold an elective office who appears, from the scope of the term “election” at the time of l'ecord of votes cast, to have been the choice of a majority or plurality of those voting in such the adoption of the Constitution, for it must election."

be remembered that those constituting the This rule constituting a necessary element majority or plurality not only vote for the

candidate or measure of their choice, but in the constitutionally provided machinery called an election, whereby the people choose they also vote against the other candidate their officers and adopt or reject public

or candidates, and against the opposing side

of the submitted measure. measures, is so fundamental and so much

[3] It is a fundamental rule that in concherished by the courts that all of them ev- struing constitutions, terms employed thereerywhere deny the right of election to any in shall be given the meaning which had candidate receiving a less number of votes been put upon them, and which they posthan a majority or a plurality when his op- sessed at the time of the framing and adopponent receiving such majority or plurality tion of the instrument. Thus it is said in was ineligible for the office, or who died be- 16 A. & E. Ency. of Law (20 Ed.) p. 925: fore the election was over. 15 Cyc. 391;

"But where a word has acquired a fixed tech9 R. C. L. 1125; Howes V. Perry, su- nical meaning in legal and constitutional hispra; Sublette v. Bedwell, supra; Grinstead tory, it will be presumed to have been employed v. Scott, 82 Ky. 88; Stevens v. Wyatt, in that sense in a written constitution.” 16 B. Mon. 542; Dobbs v. Buford, 128 Ga. And that: 483, 57 S. E. 777, 11 Ann. Cas. 117; State "Terms are to be construed according to their v. Bell, 169 Ind. 61, 82 N. E. 69, 13 L. meaning at the time of the adoption of the Con

stitution, rather than at any other date, and R. A. (N. S.) 1013, 124 Am. St. Rep. 203 ; constitutional powers cannot be enlarged by givTaylor v. Sullivan, 45 Minn. 309, 47 N. W. ing the terms employed a meaning which they 802, 11 L, R. A. 272, 22 Am. St. Rep. 729 ; made have had long previously, but not when

used by the framers of the instrument.' Sheridan v. St. Louis, 183 Mo. 25, 81 S. W. 1082, 2 Ann. Cas. 480; Spruill v. Bateman,

To the same effect are Cooley's Constitu162 N. C. 588, 77 S. E. 768, Ann. Cas. 1915B, tional Limitations (20 Ed.) pp. 94, 95, and 96 ; 515; State v. McGeary, 69 Vt. 461, 38 Atl. 1 Story's Constitution, $ 453 ; 12 Corpus Ju165, 44 L. R. A. 446; Throop on Public Of- ris, 706; Jenkins v. Ewin, 8 Heisk. (Tenn.) ficers, $ 163; Mechem on Public Officers, $ i 456; Jefferson County Board of Revenue 206, and authorities supra. Indeed there is v. State, 172 Ala. 138, 54 South. 757; Daily no dissent from the proposition by any of v. Swope, 47 Miss. 367; Cruger v. Hudson the courts, including those of England, ex

Railroad Co., 12 N. Y. 190; 6 R. C. L. 51, 52.

Applying then the rule just stated to the cept that in that country the rule is modified to the extent of allowing the minority candi- case in hand, what, may we inquire, did the date to be declared elected when and only framers of the Constitution mean by the use when the voters had knowledge at the time of the word “election” as employed in that

instrument when applied to the selection of of casting their ballots of the ineligibility

officers by the people? of the candidate receiving a majority or a the meaning universally given to that term

We have seen that plurality of the votes. This exception was injected by the courts of England upon the by the courts, at least throughout the United

States, was a selection or choice by the idea that the voter with such knowledge

legally qualified voters participating therein was willing “to throw his votes away,” so to casting for the successful candidate a maspeak, and for his participation in the elec- jority or a plurality of the votes, and that tion to have no greater effect than if he had no one could be declared elected at such an remained away from the polls and declined election who did not receive votes sufficient to vote. Only one state in the Union has to give him either a majority or a plurality. adopted the English rule, which is the state This being true, it necessarily follows that of Indiana, all the other courts holding that the Constitution used the word in that sense although the candidate receiving a majority as completely as if the definition had been or a plurality of the legal votes legally cast so written therein, and that any act of the was ineligible, and the voters knew that fact, Legislature restricting that meaning so as yet they must be counted, and they consti- to make a less number of votes sufficient to tute a part of the total votes cast in the elec-elect contravenes the Constitution, and is wise would not only be to sanction a perver-, responsible for acts done by others with his ausion of the plain intent and meaning of the thority, or ratified by him.” Constitution, but it would enable the Legis

Authority is there given for legislation lature to strike a blow at the very founda- against "fraud, intimidation, bribery or othtion stone of our boasted republican form of er corrupt practice" affecting the result of government, for when we cease to be gov- an election, but the only penalty which the erned and have public arrairs administered Legislature is authorized to affix for the vioby officers elected by a majority or a plural-lation of any statute which it may enact ity of the legal votes of those entitled to ex- thereunder is to punish the offender, and to ercise the right of suffrage, we turn aside deprive the guilty party of his nomination, from the idea of such form of government or of his office if the election was one to fill and put its administration into the hands of it. No right is therein conferred to elevate the minority, even the smallest. It was to to the office a candidate receiving a minority prevent this, as we believe, that the Constitu- of the votes, and who was voted against and tion declared that “all elections should be defeated by the majority or plurality, but free and equal"; free in that every one en the only authority given is to penalize the titled to vote should have a reasonable op- guilty candidate by punishing him, and by portunity to do so, a reasonable manner of withholding from him the right to the office. doing so, etc., and equal in that in every In the case of Perkins v. Auditor, 79 Ky. 306, vote cast should have its decisive effect in the question was presented whether the prothe selection or choice to be made at the vision in the Constitution then in force to the election. 9 R. C. L. 984, 985; Board of Trus- effect that salaries of officers might be dimintees, etc., v. Scott, 125 Ky. 545, page 569, 101 ished for neglect of duty by implication withS. W. 944, and Wallbrecht v. Ingram, 164 held the power to reduce such salaries for Ky. 463, 175 S. W. 1022.

any other reason, and the court held that In R. C. L. referred to, page 985, upon it did, quoting from and adopting Cooley this point it is said:

on Constitutional Limitations, p. 78, thus: "The word 'equal' as used in the guaranty has “When the Constitution defines the circuma somewhat different significance from that of stances under which a right may be exercised 'free.' It comprehends the principle that every or a penalty imposed, the specification is an imelector has the right to have his vote count for plied prohibition against legislative interference, all it is worth in proportion to the whole num- to add to the condition, or to extend the penalty ber of qualified electors desiring to exercise their to other cases." privilege." In discussing the constitutionality of the

And the court then refers to the cases of statute commonly known as the County Unit Auditor v. Adams, 13 B. Mon. 150, Brown v. Law, passed by the Legislature of this state, Grover, 6 Bush, 1, and Robinson v. Swope, in the case of Board of Trustees, etc., v. 12 Bush, 21. Applying this rule to the case Scott, supra, this court held that although here, when the Constitution authorized the the result of the election gave more force to Legislature to enact statutes concerning the a vote in favor of prohibition than it did to subject mentioned in the section referred to a vote against it, the statute was neverthe- (corrupt practices), it confined the penalty to less constitutional, because "all votes have punishing and depriving of office the guilty precisely the same weight in the election. party only, and the Legislature is without No one's vote counts for more than another's authority to add other consequences thereto, on that occasion."

as is attempted by the Corrupt Practice Act Under the guise of regulation which the under consideration, especially when to do so Legislature no doubt possesses with reference would violate other provisions of the Constito elections, that body may enact laws look- tution, as we have hereinbefore seen. To our ing to the protection of the voter, the fair-minds it requires but slight consideration to ness of the count, the prevention of fraud demonstrate that if the act in question and corruption, and such others within rea- should be upheld as enacted it would afford sonable limitations as it may deem necessary greater opportunities for corrupt practices to insure a fair election and a free expres- than to discard the proviso altogether. Unsion of the choice of the voter. But it may der the act as passed the scheming and denot, under such guise, invade the constitu- signing politician, or the corruptionist could tional guaranty that all elections shall be persuade or induce by deception a popular equal, nor can it declare anything to be an candidate to neglect complying with the statelection contrary to the meaning of that term ute and procure a compliance therewith by a as used in the Constitution. Indeed, section much less qualified, yet more pliant and per151 of that instrument would seem to con- haps corrupt candidate who might receive fine the powers of the Legislature within the but few votes and yet be elevated to the oflimitations above expressed. It reads:

fice. Indeed, it would be possible for an elec"The General Assembly shall provide suitable tor to elevate himself to the office by writing means for depriving of office any person who, to his own name upon the ballot and stamping procure his nomination or election, has, in his opposite it, since the requirements of the canvass or election, been guilty of any unlaw-Corrupt Practice Act would not apply to him. ful use of money, or other thing of value, or has such a result was never contemplated as bebeen guilty of fraud, intimidation, bribery, or any other corrupt practice, and he shall be held ing possible under the American idea of an

election, and we are unwilling to uphold a cognizance, the verdict of the jury is merely statute which would permit it.

advisory, and the chancellor may disregard the The conclusions which we have reached do verdiçt and enter judgment in conformity with

his view of the weight of the evidence. not in the least conflict with the doctrine of

3. APPEAL AND ERROR Omw1000 REVIEW the cases of King v. McMahan, 179 Ky. 536,

VERDICT IN EQUITABLE ACTION – CONCLU200 S. W. 956, and others referred to therein, SIVENESS. since the name of the majority or plurality by the chancellor, it is entitled to considerable

Where the verdict of the jury is sustained candidate in those cases was never legally by the chancellor, it is entitled to considerable voted for because his name was never legal-on appeal, unless the verdict is clearly against

weight, and the judgment will not be set aside ly put upon the ballot. Nor does this opin- the preponderance of the evidence. ion conflict with that line of cases purging 4. EQUITY 381 – VERDICT - CONCLUSIVE

Om the election of fraudulent votes and award- NESS. ing the election to the one receiving the mental incapacity, the question being whether, in

In suit to cancel deed on ground of grantor's highest number of legal votes. Neither does good conscience, the transaction should stand or this opinion impair the useful and wise pur- be set aside, the issue of fact is of purely equiposes of the act, for they can be accomplish-table cognizance, as to which the verdict of a ed by enforcing its penalties against the jury is merely advisory. guilty candidate, all of which are left intact, 5. DEEDS Cum 211(1)-VALIDITY-MENTAL INCA

PACITY_EVIDENCE. the opinion going only to the extent of deny

In suit to cancel a deed for mental incapaciing the power of the Legislature to visit up-ty of the grantor, verdict of the jury for plainon the innocent voter the consequences of tiff on issue of mental incapacity held clearly another's violations stifling his voice, and against the preponderance of evidence. foisting upon him and others composing a

Appeal from Circuit Court, Clark County. majority or plurality of the voters in the

Suit by T. J. Tuttle against the Louisville election, an officer whom they had defeated & Nashville Railroad Company. From a for the office.

judgment for plaintiff, defendant appeals. In this case it is admitted that all the Reversed and remanded, with directions. votes cast at the election were legal, and each candidate' voted for had his name legal

B. D. Warfield and C. H. Moorman, both ly, printed on the ballot. When that is the of Louisville, J. M. Benton, of Winchester, case the election must be awarded to the James J. Donohue, of Louisville, and Shelone receiving the majority or at least a plu- by, Northcutt & Shelby, of Lexington, for rality of the votes, unless forsooth he be in-appellant. Hays & Hays, of Winchester, for eligible to hold the office, or render himself appellee. incapable of taking it because of the violation of some reasonable, regulatory statute.

CLAY, C. In the year 1911 the Louisville [4, 5] Under the rule laid down in the case & Nashville Railroad Company contemplated of Grinstead v. Scott, supra, the plaintiff, al- an extension of its Kentucky Division, so as though incapable of taking the office himself, to connect with its line near Irvine, and the may contest the election because of the in- citizens of Clark county were anxious to eligibility of his opponent, and the demurrer have the new line built from Winchester to to the petition should have been sustained in Irvine. T. J. Tuttle was the owner of a farm so far as plaintiff sought to have the office on Howard's Upper creek, in Clark county, adjudged to him, but overruled in so far as containing about 300 acres, and located on it sought to deprive the defendant from as- the proposed route. This farm is long and suming the duties of the office. The election narrow, and contains numerous ridges and should have been declared null and void, and hollows. At that time the land was worth that a vacancy existed. No judgment should $35 or $10 an acre. On October 6, 1911, the have been entered against the board of can representatives of the railroad company, acvassers, since it was not a party to the suit. companied by a committee of citizens de

Wherefore the judgment is reversed, with siring the construction of the road, called on directions to proceed in accordance with this Tuttle, and after an examination of the land opinion.

and a general discussion of the matter, ob

tained from him an option by which he (180 Ky. 558)

agreed to convey to the company the necLOUISVILLE & N. R. CO. v. TUTTLE.

essary right of way through his farm in con(Court of Appeals of Kentucky. May 14, 1918.) sideration of $75 an acre and an agreement 1. APPEAL AND ERROR 1000 REVIEW

by the company to build a lawful fence on each VERDICT IN EQUITABLE ACTION.

side of the right of way. Afterwards a surWhere there is presented in an equitable ac-vey was made, which necessitated a change tion a distinct legal issue, which either party has the right to have tried by a jury, the ver in the right of way through the Tuttle dict of the jury is conclusive, and will not be farm. Thereupon the representative of the disturbed, unless flagrantly against the evidence. company, accompanied by the deputy coun2. EQUITY 381 - VERDICT – CONCLUSIVE- ty clerk and other gentlemen, went to see

Own – NESS.

Where the action is purely equitable, and Tuttle for the purpose of getting an option the issue of fact has always been of equitable on the right of way as relocated. At that

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