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 of tled to the office? the election neither he nor any one else in his behalf had spent any sum whatever in his campaign, and that it was therefore unnecessary to file a statement. A demurrer filed to the answer was overruled, and plaintiff declining to plead further, his petition was dismissed, followed by a judgment that defendant was duly elected and entitled to the office, and the canvassing board was directed to issue to him a certificate of election. Complaining of that judgment, plaintiff prosecutes this appeal. At the threshold it may be admitted that it was competent for the Legislature to enact the proviso, unless inhibited from doing so by some provision of the Constitution properly construed manifesting an intention on the part of the people in adopting that instrument to withhold such power. Our Constitution creates a number of offices, from Governor down, and in the sections creating them it is provided that they shall be chosen at an election by the people in which all qualified voters may participate. It is so provided with reference to the office of justice of the peace by section 99 of that instrument, wherein it is said, "There shall be elected in 1894 * *in each justice's district one justice of the peace," etc., and throughout that instrument it is everywhere manifest that the qualified voters of the territory to be affected shall elect the officers charged with the administration of public affairs, and by the same process of election such voters shall have the right to determine whether certain questions, measures, or policies shall or not be adopted within the territory to be affected. Other parts of it contain provisions, or empower the Legislature to enact provisions, for the purpose of safeguarding the ballot and to insure the purity of elections and the elimination of fraud, so that the sovereign voice of the voter as expressed in the election shall shall represent the combined will of those participating in the election in the manner provided by a government instituted for and by the people. [1] In the recent case of Sparkman v. Sayler, 180 Ky. 263, 202 S. W. 649, we held that the requirement of the act referred to that both pre-election and post-election statements be filed was mandatory, but that the requirement as to the specific time when they should be filed was directory, and that if the preelection statement was filed a sufficient time before the election to serve the purpose of the act it would be sufficient. Under the interpretation thus given, it is clearly manifest that the answer failed to allege a defense, since it is admitted therein that no pre-election statement whatever was filed, and it is not a sufficient excuse for a failure to file it that the candidate had spent no money in his campaign, because it is as necessary that such fact be divulged before the election as it is to make known sums that had been spent, if any, for legitimate purposes. The be free, full, and fair, and that the result same reasoning would justify a failure to file the certificate when the candidate, although he had used campaign funds, had done so within the limitations and for the purposes prescribed by the statute; i. e., that he had not violated the statute, and the necessity for the statement was removed. The court therefore committed error in overruling the demurrer to the answer, and in adjudging the defendant elected and entitled to the office. [2] A more serious question is presented upon the contention of plaintiff that under the proviso in the latter part of section 11, supra, of the act he should be declared elected and entitled to the office. It will be noticed that in the section referred to it is first provided that if any candidate violates any of the provisions of the act (one of which is the filing of the pre-election statement) in a contest over the election, "said nomination or election shall be declared void," and this is followed by a proviso that the candidate who receives the next highest number of votes, and who has complied with the provisions of the act, shall be declared elected to the office if it is the general election, or nominated if it is a primary election. In this case we are not concerned about the effect of such a provision in a contest over a nomination at a primary election, for the one here involved is a general election to fill the office. In section 6, being a part of the Bill of Rights, it is said, "All elections shall be free and equal." It then becomes necessary to inquire what the makers of the Constitution, as well as the people in adopting it, meant by the use of the word "election" as used therein, and what was meant by the adoption of section 6, supra. All the authorities agree that the legal definition of an election, as well as that which is usually and ordinarily understood by the term, is a choosing or a selection by those having a right to participate of those who shall fill the offices, or of the adoption or rejection of any public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa, 216, 47 N. W. 1091, 11 L. R. A. 354; State v. Hirsh, 125 Ind. 207, 24 N. E. 1062, 9 L. R. A. 170; Bouvier's Law Dictionary. The definition given by Mr. Webster is: "The act of choosing a person (or measure) to fill an office or employment, by any manifestation of preference." In fact this definition of the term thoroughly ingrafted into the law without adoption of our Constitution, but we need go | This is the general rule where the number of electors is indefinite. So the only way to defeat the election of a candidate at an election is by voting for another candidate." no further than that instrument itself for a definition of the word, for in section 147 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." It is true that by the language quoted the term was made to include the decision of questions by the voters, as well as the selection of officers, but it is therein said that when applied to the selection of officers it is a choosing by the people of the persons who shall fill the office. This same definition of the word "election" is approved in the cases of Speed & Worthington v. Crawford, 3 Metc. 207, and Police Commissioners v. City of Louisville, 3 Bush, 597, wherein it is said that: "The term 'election' in its constitutional sense and meaning, is used to designate a selection by the popular voice." It is therefore necessary to determine what was regarded as essential to express the choice of the people as understood and intended by the use of the word "election" in the Constitution. In the volume of Cyc. suIn the volume of Cyc. supra (308), it is said: "In the absence of any statute expressly requiring more, a plurality of votes is sufficient to elect. And a fortiori, in the absence of any provision in the Constitution requiring a civil officer to be elected by a majority of votes a state Legislature may lawfully provide that a plurality of votes shall be sufficient to elect any officer." In the seventh edition of Cooley's Constitutional Limitations, 931, it is said: * "Unless the law under which the election held expressly requires more, a plurality of the votes cast will be sufficient to elect. If several persons are to be chosen to the same office, the requisite number who shall stand highest on the list will be elected, but without such a plurality no one can be chosen to a public office." 75, Barnum v. Gilman, 27 Minn. 466, 8 N. W. 375, 38 Am. Rep. 304, Sublett v. Bedwell, 47 Miss. 266, 12 Am. Rep. 338, People v. Clute, 50 N. Y. 451, 10 Am. Rep. 508, State v. Giles, 2 Pinn. (Wis.) 166, 52 Am. Dec. 149, People v. Pease, 27 N. Y. 45, 84 Am. Dec. 268, Howes V. Perry, 92 Ky. 260, 17 S. W. 575, 13 Ky. Law Rep. 483, 36 Am. St. Rep. 591, Spruill v. Bateman, 162 N. C. 588, 77 S. E. 768, Anu. Cas. 1915B, 515, State v. Bell, 169 Ind. 61, 82 N. E. 69, 13 L. R. A. (N. S.) 1013, 124 Am. St. Rep. 203, and a great number of cases found in the annotated notes to many of the cases and authorities cited. A few excerpts from some of the cases referred to illustra tive of the reasons prompting the courts in accepting and applying the rule as essential to the American idea of an election will be sufficient. In the case of Sublett v. Bedwell, supra, the court in treating of the question said: "The foundation of our system of government reposes upon the ultimate sovereignty of the people. Those who exert authority and discharge the functions of government in any of the departments among which its powers are distributed, come into existence and perform the functions respectively assigned them, according to the modes prescribed by the people in the organic law, framed by their representatives and adopted by themselves. When they reserve to themselves the selection of a class of officers by popular election, a fundamental principle (unless otherwise expressly provided) is, that the person receiving a majority of legal votes over his competitor is entitled to the office. It cannot be said that the candidate has been elected unless he has received a majority of the legal votes cast; he is not the choice of the people. If the majority make choice of a candidate under some personal disability, disqualifying him from taking 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: "In the absence of any statutory provisions expressly requiring more, a plurality of the votes cast will elect." And in section 330 the author says with reference to the election of the minority candidate when his opponent is for any reason ineligible to hold the office: "Thus it will be seen that the weight of authority in this country is decidedly against the adoption here of the English doctrine. And we think that sound policy, as well as reason and authority, forbids the adoption of that doctrine in this country. It is a fundamental idea with us that the majority shall rule, and that a majority or at least a plurality, shall be required to elect a person to office by popular vote. An election with us is the deliberate choice of a majority or plurality of the electors. Any doctrine, which opens the way for minority rule in any case is anti-Republican and anti-American." In 9 R. C. L. p. 1115, the text says: "The plan almost universally adopted in reference to the election of officers * * provides for the recognition of the choice of the majority of those voting where there are but two candidates for election, and of a plurality where there are more than two candidates. 203 S.W.-20 Further along in the opinion, in denying the right of a minority candidate to the office because of the ineligibility of the one receiving a majority or a plurality of the votes it is said: "Without going into the general reasoning. the great weight of American authority, and, as we think, upon the soundest consideration, is, that although the majority vote for a disqualified person, the votes so cast are not illegal, and therefore to be treated as naught; but the result is, if the ineligible candidate cannot take the office, the electors have failed to make a choice. In truth, there has been no election at all, and the minority candidate has no right to the office. the office. State of Georgia v. Swearingin, 12 Ga. 24; State ex rel. Off. v. Smith, 14 Wis. 497; State v. Giles, 1 Chand. [Wis.] 112 [52 Am. Dec. 149]; Saunders v. Haynes, 13 Cal. 152; * * * The Answer of the Supreme Court of Maine, 38 Me. 597. The case of Vance and Abbott in United States Senate, recently. was considered upon its legal merits and decided in accordance with the great weight and merit of American judicial adjudication.' Our own court, where the same question was involved concerning the right of a minority candidate to be declared elected be cause the one receiving the majority or plurality of the votes died before the polls closed, in the case of Howes v. Perry, supra, said: "It is a principle of free elections by the people, firmly fixed and understood, that no person is or can be regarded duly elected to an office unless when only two persons are voted for, he receives a majority of the votes cast for them, or receives a plurality in case there are more than two voted for. Any other rule would be subversive of the fundamental idea of elections by the people under our form of government, which is, that only that person shall be entitled to hold an elective office who appears, from the record of votes cast, to have been the choice of a majority or plurality of those voting in such election." he receives a majority or a plurality of all such legal votes so cast. From this unanimous and unbroken line of judicial definitions of what is included in the term, it cannot be gainsaid that the idea of an election in all republican forms of government is that no one can be declared elected, and no measure can be declared carried, unless he or it receives a majority or a plurality of the legal votes cast in the election, and this was the understood meaning, definition, and scope of the term "election" at the time of the adoption of the Constitution, for it must be remembered that those constituting the candidate or measure of their choice, but majority or plurality not only vote for the they also vote against the other candidate or candidates, and against the opposing side of the submitted measure. [3] It is a fundamental rule that in construing constitutions, terms employed there in shall be given the meaning which had been put upon them, and which they possessed at the time of the framing and adoption of the instrument. Thus it is said in 6A, & E. Ency. of Law (2d Ed.) p. 925: "But where a word has acquired a fixed technical meaning in legal and constitutional history, it will be presumed to have been employed in that sense in a written constitution." And that: "Terms are to be construed according to their meaning at the time of the adoption of the Constitution, rather than at any other date, and constitutional powers cannot be enlarged by giving the terms employed a meaning which they made have had long previously, but not when used by the framers of the instrument." This rule constituting a necessary element in the constitutionally provided machinery called an election, whereby the people choose their officers and adopt or reject public measures, is so fundamental and so much cherished by the courts that all of them everywhere deny the right of election to any candidate receiving a less number of votes than a majority or a plurality when his opponent receiving such majority or plurality was ineligible for the office, or who died before the election was over. 15 Cyc. 391; 9 R. C. L. 1125; Howes v. Perry, supra; Sublette v. Bedwell, supra; Grinstead v. Scott, 82 Ky. 88; Stevens v. Wyatt, 16 B. Mon. 542; Dobbs v. Buford, 128 Ga. 483, 57 S. E. 777, 11 Ann. Cas. 117; State v. Bell, 169 Ind. 61, 82 N. E. 69, 13 L. R. A. (N. S.) 1013, 124 Am. St. Rep. 203; Taylor v. Sullivan, 45 Minn. 309, 47 N. W. 802, 11 L. R. A. 272, 22 Am. St. Rep. 729: 802, 11 L. R. A. 272, 22 Am. St. Rep. 729; 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 (2d 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, & 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, except that in that country the rule is modified to the extent of allowing the minority candidate to be declared elected when and only when the voters had knowledge at the time of casting their ballots of the ineligibility of the candidate receiving a majority or a plurality of the votes. This exception was injected by the courts of England upon the injected by the courts of England upon the idea that the voter with such knowledge was willing "to throw his votes away," so to speak, and for his participation in the election to have no greater effect than if he had remained away from the polls and declined to vote. Only one state in the Union has adopted the English rule, which is the state of Indiana, all the other courts holding that although the candidate receiving a majority or a plurality of the legal votes legally cast was ineligible, and the voters knew that fact, yet they must be counted, and they constitute a part of the total votes cast in the elec Railroad Co., 12 N. Y. 190; 6 R. C. L. 51, 52. Applying then the rule just stated to the case in hand, what, may we inquire, did the framers of the Constitution mean by the use of the word "election" as employed in that officers by the people? instrument when applied to the selection of We have seen that the meaning universally given to that term by the courts, at least throughout the United States, was a selection or choice by the legally qualified voters participating therein casting for the successful candidate a majority or a plurality of the votes, and that no one could be declared elected at such an election who did not receive votes sufficient to give him either a majority or a plurality. This being true, it necessarily follows that the Constitution used the word in that sense as completely as if the definition had been so written therein, and that any act of the Legislature restricting that meaning so as to make a less number of votes sufficient to elect contravenes the Constitution, and is wise would not only be to sanction a perversion of the plain intent and meaning of the Constitution, but it would enable the Legislature to strike a blow at the very foundation stone of our boasted republican form of government, for when we cease to be governed and have public a¤airs administered by officers elected by a majority or a plurality of the legal votes of those entitled to exercise the right of suffrage, we turn aside from the idea of such form of government and put its administration into the hands of the minority, even the smallest. It was to prevent this, as we believe, that the Constitution declared that "all elections should be free and equal"; free in that every one entitled to vote should have a reasonable opportunity to do so, a reasonable manner of doing so, etc., and equal in that in every vote cast should have its decisive effect in the selection or choice to be made at the election. 9 R. C. L. 984, 985; Board of Trustees, etc., v. Scott, 125 Ky. 545, page 569, 101 S. W. 944, and Wallbrecht v. Ingram, 164 Ky. 463, 175 S. W. 1022. In R. C. L. referred to, page 985, upon this point it is said: "The word 'equal' as used in the guaranty has a somewhat different significance from that of 'free.' It comprehends the principle that every elector has the right to have his vote count for all it is worth in proportion to the whole number of qualified electors desiring to exercise their privilege." In discussing the constitutionality of the statute commonly known as the County Unit Law, passed by the Legislature of this state, in the case of Board of Trustees, etc., v. Scott, supra, this court held that although the result of the election gave more force to a vote in favor of prohibition than it did to a vote against it, the statute was neverthe less constitutional, because "all votes have precisely the same weight in the election. No one's vote counts for more than another's on that occasion." Under the guise of regulation which the Legislature no doubt possesses with reference to elections, that body may enact laws looking to the protection of the voter, the fairness of the count, the prevention of fraud and corruption, and such others within reasonable limitations as it may deem necessary to insure a fair election and a free expression of the choice of the voter. But it may not, under such guise, invade the constitutional guaranty that all elections shall be equal, nor can it declare anything to be an election contrary to the meaning of that term as used in the Constitution. Indeed, section 151 of that instrument would seem to confine the powers of the Legislature within the limitations above expressed. It reads: "The General Assembly shall provide suitable means for depriving of office any person who, to procure his nomination or election, has, in his canvass or election, been guilty of any unlawful use of money, or other thing of value, or has been guilty of fraud, intimidation, bribery, or any other corrupt practice, and he shall be held responsible for acts done by others with his authority, or ratified by him." Authority is there given for legislation against "fraud, intimidation, bribery or other corrupt practice" affecting the result of an election, but the only penalty which the Legislature is authorized to affix for the violation of any statute which it may enact thereunder is to punish the offender, and to deprive the guilty party of his nomination, or of his office if the election was one to fill it. No right is therein conferred to elevate to the office a candidate receiving a minority of the votes, and who was voted against and defeated by the majority or plurality, but the only authority given is to penalize the guilty candidate by punishing him, and by withholding from him the right to the office. In the case of Perkins v. Auditor, 79 Ky. 306, the question was presented whether the provision in the Constitution then in force to the effect that salaries of officers might be diminished for neglect of duty by implication withheld the power to reduce such salaries for any other reason, and the court held that it did, quoting from and adopting Cooley on Constitutional Limitations, p. 78, thus: "When the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference, to add to the condition, or to extend the penalty to other cases." And the court then refers to the cases of Auditor v. Adams, 13 B. Mon. 150, Brown v. Grover, 6 Bush, 1, and Robinson v. Swope, 12 Bush, 21. Applying this rule to the case here, when the Constitution authorized the Legislature to enact statutes concerning the subject mentioned in the section referred to (corrupt practices), it confined the penalty to punishing and depriving of office the guilty party only, and the Legislature is without authority to add other consequences thereto, as is attempted by the Corrupt Practice Act under consideration, especially when to do so would violate other provisions of the Constitution, as we have hereinbefore seen. To our minds it requires but slight consideration to demonstrate that if the act in question should be upheld as enacted it would afford greater opportunities for corrupt practices than to discard the proviso altogether. Under the act as passed the scheming and designing politician, or the corruptionist could persuade or induce by deception a popula candidate to neglect complying with the statute and procure a compliance therewith by a much less qualified, yet more pliant and perhaps corrupt candidate who might receive but few votes and yet be elevated to the office. Indeed, it would be possible for an elector to elevate himself to the office by writing his own name upon the ballot and stamping opposite it, since the requirements of the Corrupt Practice Act would not apply to him. Such a result was never contemplated as being 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 not in the least conflict with the doctrine of the cases of King v. McMahan, 179 Ky. 536, 200 S. W. 956, and others referred to therein, SIVENESS. ly put upon the ballot. Nor does this opinion conflict with that line of cases purging the election of fraudulent votes and award 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 the preponderance of the evidence. 4. EQUITY 381 VERDICT VERDICT CONCLUSIVEmental incapacity, the question being whether, in In suit to cancel deed on ground of grantor's good conscience, the transaction should stand or be set aside, the issue of fact is of purely equitable cognizance, as to which the verdict of a jury is merely advisory. NESS. PACITY-EVIDENCE ing the election to the one receiving the highest number of legal votes. Neither does this opinion impair the useful and wise purposes of the act, for they can be accomplished by enforcing its penalties against the guilty candidate, all of which are left intact. 5. DEEDS 211(1)-VALIDITY-MENTAL INCAthe 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 majority or plurality of the voters in the election, an officer whom they had defeated for the office. In this case it is admitted that all the votes cast at the election were legal, and each candidate voted for had his name legally printed on the ballot. When that is the case the election must be awarded to the one receiving the majority or at least a plurality of the votes, unless forsooth he be ineligible to hold the office, or render himself incapable of taking it because of the violation of some reasonable, regulatory statute. [4, 5] Under the rule laid down in the case of Grinstead v. Scott, supra, the plaintiff, although incapable of taking the office himself, may contest the election because of the ineligibility of his opponent, and the demurrer to the petition should have been sustained in so far as plaintiff sought to have the office adjudged to him, but overruled in so far as it sought to deprive the defendant from assuming the duties of the office. The election should have been declared null and void, and that a vacancy existed. No judgment should have been entered against the board of canvassers, since it was not a party to the suit. Wherefore the judgment is reversed, with directions to proceed in accordance with this opinion. Appeal from Circuit Court, Clark County. Suit by T. J. Tuttle against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions. B. D. Warfield and C. H. Moorman, both of Louisville, J. M. Benton, of Winchester, James J. Donohue, of Louisville, and Shelby, Northcutt & Shelby, of Lexington, for appellant. Hays & Hays, of Winchester, for appellee. CLAY, C. In the year 1911 the Louisville & Nashville Railroad Company contemplated an extension of its Kentucky Division, so as to connect with its line near Irvine, and the citizens of Clark county were anxious to have the new line built from Winchester to Irvine. T. J. Tuttle was the owner of a farm on Howard's Upper creek, in Clark county, containing about 300 acres, and located on the proposed route. This farm is long and narrow, and contains numerous ridges and hollows. At that time the land was worth $35 or $40 an acre. On October 6, 1911, the representatives of the railroad company, accompanied by a committee of citizens desiring the construction of the road, called on Tuttle, and after an examination of the land and a general discussion of the matter, obtained from him an option by which he 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 in the right of way through the Tuttle has the right to have tried by a jury, the verdict 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 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. (180 Ky. 558) NESS. - |