Case one of two
Mills v. Broughton
365 S.W.2d 315
Sept. 28, 1962.
ACTION: Affirmed.


Election contest. The Circuit Court, Knox County, M. J. See, Special Judge, adjudged that no legal election had been held, and an appeal was taken. The Court of Appeals Stewart, C. J., held that election was properly voided where, in addition to other irregularities found, 50% of votes were illegal on account of voters' failure to sign oath before receiving help in voting on machines.

STEWART, Chief Justice.
This appeal is from a judgment of the Knox Circuit Court, decreeing it was impossible to determine the will of the voters in the general election held in Knox County on November 7, 1961, in Upper Stinking Creek Precinct #6, and that no legal election had been held in that precinct.

This ruling obliterated the majority of votes received by Mattie Mills, C. Hobart Mills, and Garrett Brown, the Democratic candidates in the order named for jailer, magistrate and constable, who are appellants herein and were the contestees in circuit court, and declared duly elected to the respective offices Lester Broughton, Henry Broughton and Clark Sizemore, who were the Republican candidates and the contestants below.

The basis for the election contest brought by the apparently unsuccessful Republican candidates was that at this particular precinct the secrecy of the voting procedure was not preserved, as required by Section 147 of the Constitution of Kentucky and especially by KRS 125.140(2).

This subsection relates to voting by machine, and the portion thereof claimed to have been violated reads: 'No voter shall be permitted to receive any assistance in voting unless he makes and signs an oath that, by reason of inability to read English * * * he is unable to vote without assistance. * * *' This statutory provision then specifically outlines the duties imposed upon certain precinct election officers, who are required to aid such a handicapped person to register his vote on the voting machine, after the latter makes known his need for help in the manner prescribed.

The trial court found that a high rate of illiteracy prevailed in the voting precinct involved in this contest; that 68 of the 347 persons (19.5%) who voted signed the comparative signature book with an 'X'; that 50% of all the voters were given aid by the judges in voting on the voting machine; and that none of the assisted voters made or signed the oath required by KRS 125.140(2).

The record discloses that well over one hundred persons, of the one hundred and seventy-two who were named by the contestants (appellees) in their pleadings as illegally assisted voters, were subpoenaed. Approximately one- half of these appeared; some where brought in by bench warrants and some were produced as witnesses through the efforts of a specially appointed bailiff. Those who testified brought out the fact that some of these persons would have been entitled to assistance because of their inability to read, had they requested help and made and signed the proper oath. Others who were aided appeared not to have been illiterate and were therefore not due to receive any assistance. It is conclusively established, however, as pointed out by the findings of fact, that none of those who asked for and accepted the services of the judges in casting their votes made and signed the oath in conformity with KRS 125.140(2).

A further finding of the trial court was that eleven persons were allowed to vote whose names did not appear on the registration list, and seven persons from another precinct were allowed to vote in the precinct under scrutiny. Twenty-three other persons were challenged but were permitted to vote after they signed affidavits; and they also were assisted by the judges without compliance with the oath provision abovementioned.

The question arises: Is the making and signing of an oath mandatory before a voter may obtain the help described in KRS 125.140(2) to enable him to vote on a voting machine?

This particular subsection has never been construed by this Court. Nevertheless, KRS 118.300(1), a similar statutory provision in respect to voting by ballot, which is still in full force and effect, requires a voter who is disabled by illiteracy and desires to vote to make oath before his ballot is marked under the conditions and in the manner set forth in that subsection; and it has been uniformly held that a failure to make the prescribed oath invalidates the vote which is later cast.

If it is imperative under KRS 118,300(1) that oath be made before the clerk of an election precinct marks the ballot of the voter who cannot read, or otherwise the vote may not be counted, we can perceive of no reason why the same type of voter should be excused from making and signing the prescribed oath in order to obtain help in voting by machine. We believe it is clear the Legislature intended, where illiterates are involved, to carry over the same system to voting by machine that has all along been applicable to voting by ballot. Any other conclusion would be illogical.

Instead of providing for the vote to be set up by the judges and then for them to withdraw so the voter can activate the machine, thus registering his vote as set up or as he sees fit in the secrecy of the booth, KRS 125.140(2) states that one of the judges shall cast the vote in the presence of the voter and the other judge. Under these circumstances, it would appear the courts are under a duty to require that the exact terms and conditions of this law be observed when assistance must be given to a voter who is unable to read.

In the present case, as has been mentioned, the trial court found that 50% of the votes were illegal, and that those few who did testify could not say for sure, due to their illiteracy, for whom their votes were cast. It has also been shown that others who were subpoenaed would not appear as witnesses. It was impossible, the trial court found, to ascertain for whom any of the illegal votes were cast.

According to KRS 122.080(4) the courts 'may adjudge that there has been no election' only 'if it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected * * *.'

However, in Napier v. Noplis, Ky., 318 S.W.2d 875, one of the most recent cases on the point, it was held that, even though there be no fraud or other gross impropriety in the conduct of the election, if it has been established that a large proportion of the votes cast were illegal, and it is not possible to determine how the votes were cast so as to charge them to the recipient, the election will nevertheless be voided. This holding was predicated upon the reasoning that, when a substantial number of the votes cast was shown to be illegal, it could therefore be reasonably presumed there had been a miscarriage of so great a magnitude in the voting process as to taint the election with fraud.

We can come to no other conclusion except that the number of the illegal votes in the precinct involved in this contest was so substantial in quantity that we must declare a fair election was not held therein.

Wherefore, the judgment is affirmed.

Ky.,1963
MILLS v. BROUGHTON
365 S.W.2d 315


Case two of two
Mills v. Broughton
396 S.W.2d 310
Nov. 19, 1965.
ACTION: Affirmed.


Action on supersedeas bond filed in election contest in the Knox Circuit Court, Knox County, M. J. See, Special Judge. From judgment for plaintiffs, defendants appealed. The Court of Appeals, Montgomery, J., held that a special judge, appointed where judge of circuit court had disqualified himself, should try action to its conclusion or final determination including the assessment damages under supersedeas bond.

MONTGOMERY, Judge.

In Mills v. Broughton, Ky., 365 S.W.2d 315, the elections of Mattie Mills and C. Hobart Mills, as jailer and magistrate, respectively, were invalidated in favor of Lester Broughton and Henry Broughton, respectively. Upon issuance of the mandate the Broughtons sought to recover damages against the Millses and their sureties under their supersedeas bond. The Honorable M. J. See, sitting as special judge, had tried the election contest and, over objection, determined the matter of damages. Lester Broughton recovered judgment for $2,993.07. Henry Broughton recovered judgment for $1,257.40. Appropriate appeals have been perfected. The appeals have been considered on the same record.

It is urged for reversal that the special judge had no authority to take further action or to try the matter of damages under the supersedeas bond, that a de facto officer is entitled to compensation for services rendered pending the election contest, and that the findings of fact and conclusions of law of the trial judge were erroneous.

The special judge was designated by the Chief Justice of this Court for the trial of this action and one other 'to be tried by the judge at his discretion.' Appellants rely on Helton v. Commonwealth, Ky., 256 S.W.2d 14, wherein it was held that 'a judge appointed for a special term under KRS 23.260 to try designated cases, may not, of his own volition, later call another special term and retry the cases, over the objection of the interested parties.'

The Helton case is inapplicable here. KRS 23.260 deals with the appointment of a special judge for a special term. KRS 23.230 governs the appointment of a special judge when a judge of a circuit court cannot preside 'in an action pending in the court.' Here, the regular judge had sisqualified and the special judge was appointed to try this action 'at his discretion.' It is to be noted that the designation made no reference to the trial of this action at any specific term of court. Under the circumstances the designation is construed to mean that the special judge should try the action to its conclusion or final determination. This, of course, would include an assessment of damages under a supersedeas bond. Such conclusion is consonant with common sense and in the interest of the efficient administration of justice.

It is urged in behalf of C. Hobart Mills, the de facto magistrate, that he performed the duties of the office pending the election contest and should be allowed to retain the compensation. The amount recovered by Henry Broughton was the salary paid, less actual travel expense.

The rule is that a de jure officer is entitled to recover of a de facto officer the compensation of the office, less actual customary and necessary expenses. There is no merit in appellant's contention.

Finally, Mattie Mills complains that the amount found to be due appellee Lester Broughton, as jailer, was erroneously determined. The amount paid Mattie Mills was stipulated. Depositions were taken to establish the amount of expense she had paid in operating the jail. The evidence was in conflict and the testimony offered in behalf of appellee Lester Broughton was sufficient to sustain the findings of the trial judge on the factual issues. The reference in the findings to the ration allowance to West Point cadets and the information from other jailers is treated as surplusage in view of the substantiating evidence.

Judgment affirmed.

HILL, J., not sitting.

Ky. 1965
MILLS v. BROUGHTON
396 S.W.2d 310


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