Clark v. Nash | Cases | Westlaw

The two above–styled causes came together before me, a judge of the Kentucky Court of Appeals, on motions for mandatory injunctions against J. B. Nash, clerk of the Franklin county court, to require him in his official capacity to prepare and cause to be printed a ballot for the municipal election to be held in the city of Frankfort, separate, independent of, and distinct from the ballot prepared and to be printed and used in the general election held in the county of Franklin, which includes the city of Frankfort, at which latter election candidates for state senator, circuit judge, commonwealth's attorney, and the various county officers are to be elected, and to cause the name of the plaintiff William F. Clark to be printed on said separate municipal ballot as an independent candidate for the office of police judge of the city of Frankfort under a designated device, and to cause to be printed the name of the other plaintiff Greene R. Lyons upon said separate municipal ballot as the Republican nominee and candidate for the office of mayor of the city of Frankfort under the regular Republican device. It is alleged in the respective petitions of the plaintiffs Clark and Lyons (separate actions) that the defendant J. B. Nash, as clerk of the Franklin county court, whose duty it is to prepare and cause to be printed the ballots for the regular November election, 1921, is threatening to and will, unless restrained by this court prepare, print and furnish a joint ballot to be used both in the municipal election in the city of Frankfort and in the county and district election outside of the city of Frankfort, and covering the entire county of Franklin, and that under the act of the Legislature of 1918, known as the “absent voters law” (Laws 1918, p. 106), no person can vote in a municipal election under said “absent voters law,” but must appear at the polls in person to receive, mark, and cast his ballot, but that absent voters may legally, by complying with the said act, both register and vote in all general elections held for the election of county and district officers, and if the clerk is allowed to and does prepare and distribute a joint ballot for both the municipal and county elections, many persons who are temporarily absent from the county of Franklin, but who reside in the city of Frankfort, will receive ballots on which is printed all of the several candidates' names, including those for district, county, and municipal offices, and such absent voters be given an opportunity *2 to and will mark and vote such ballots in the municipal election in which such absent voters have no right to participate and are not legal voters.

Defendant Nash filed both a special and general demurrer to each of the petitions, and it is his contention: (1) That the absent voters law is wholly unconstitutional; (2) section 20 of the act is void and unconstitutional because it deprives voters having all constitutional rights to vote for municipal officers of the right to have counted such ballots as are cast by absent voters; (3) the petition and application of Clark to have his name placed on the ballot does not conform to the requirements of the statute, and is insufficient. The so–called absent voters law says:

Plainly, by the terms of the statute an absent voter cannot participate in a municipal election. This being true there is no warrant in law for furnishing an absent voter with a municipal ticket, for he cannot vote it. He would be furnished a ballot which he is forbidden by law to cast. Reasoning thus the plaintiffs Clark and Lyon reached the reasonable conclusion that separate ballots were not only proper and expedient, but legally imperative. To test this question these actions were commenced. Defendant Nash insists that the entire absent voters act is unconstitutional and void because it contravenes an express provision of our fundamental law.

This clear and unmistakable provision of the Constitution of Kentucky was not made by the Legislature or by the courts, but by the people themselves, voting upon the question. It is therefore the supreme law of the state upon the subject. Manifestly a ballot cannot be “furnished by public authority to the voter at the polls” if mailed to him at some address outside of the county where the election is being held, nor can a ballot be “marked” by each voter in “private at the polls” if his ballot is received by him in a foreign state and there marked and mailed back to the clerk as provided by the absent voters law, nor can such ballot, when so marked by the voter, be “then and there deposited” in the ballot box, unless we were to give to this plain provision of our Constitution a strained, unnatural, or fanciful construction never intended by the framers or the people. Our law–making body overlooked this provision of the Constitution when it undertook to and did pass the absent voters law. It was in the nature of an emergency act. The great world war was on, and thousands of our boys were at the front performing a patriotic as well as a sacred duty to the state and nation, and it was not only thought wise, but nothing more than simple justice, that these defenders of the flag who were forced to remain at the front in defense of civilization should have a voice in the conduct of political affairs at home. The framers of the Constitution and the people who voted to make it the supreme law of our commonwealth in the year 1891 (30 years ago) did not dream of a world war requiring the sending of soldiers to Europe, visualize the needs of the country in such peril, nor think of the injustice which would result from depriving those who sustained the government of a right to participate in its conduct. Had the constitutional convention visualized such emergency, no doubt the ironclad provision of the Constitution noted above, requiring a voter to receive his ballot at the polls and then and there mark and deposit it, would have been modified or omitted altogether from our fundamental law. There is now, however, no such call or emergency as existed at the passage of the act or as would justify this court, if we were inclined to do so, in disregarding the plain and literal meaning of the constitutional provision or in giving to the quoted section a construction which its framers and the whole people clearly did not intend it to have. It therefore follows that the absent voters law enacted in 1918 must be held void, for it must yield to the constitutional provision.

It is to be regretted that so convenient, useful, and popular legislation should be found in conflict with our basic law. The only remedy is an amendment to the Constitution, which the people can have, if they wish, allowing the passage of an absent voters act. Other states having laws allowing absent voters to participate in elections have no such constitutional provision to annul it.

To his petition in equity plaintiff Clark attached as an exhibit a copy of the petition which he filed with the clerk of the Franklin county court asking that his name be placed upon the ballots as an independent candidate, which latter petition reads as follows:

From a reading of the statutes it will be observed that the petition of a candidate to have his name placed upon the ballot to be voted for at the election must state: First, the name of the candidate; second, that he is legally qualified to hold such office, or state facts which will manifest such qualifications; third, that the subscribers or petitioners desire and are legally qualified to vote for such candidate. All these, and perhaps other requirements, are mandatory––not directory. They are of the essence of the petition, and are necessary to give to the clerk a ministerial officer, the necessary information to justify him in placing the name of such petitioner on the ballot. While no set form or specific words are required to constitute a good petition, these three requirements must be reasonably met by a substantial compliance with the statute.

The voters who signed the petition of the plaintiff Clark stated the name of the candidate which they proposed, but they did not declare him qualified to hold the office of police judge of the city of Frankfort, nor alleged facts which show such qualifications by averring his residence, age, etc. So far as the petition shows, Clark may reside in a foreign state, and may be less than 21 years of age. His petition was therefore not sufficient to entitle him to the relief which he seeks in this action. An averment in the language of the statute that the proposed candidate was possessed of the requisite qualifications to hold the office for which he is proposed or an averment of facts which show his qualification according to the statute would have been sufficient.

The general demurrer to the petition in each case must be sustained. It follows that the motion of both Clark and Lyons for a mandatory injunction to compel the defendant Nash, Clerk of the Franklin county court, to have prepared and printed a separate municipal ballot, is overruled.