Colvin v. Mills , 214 Ky. 812 ( 1926 )

Two substantial reasons influence me to dissent from the majority opinion. That opinion is based upon a supposed distinction between the meaning of the language of section 1550-26 and section 1596a-5, Kentucky Statutes. In substance, meaning and spirit these two sections are the same although their wording is somewhat different. One relates to the time of instituting contests in primary elections, and the other to the same subject with respect to final or general elections.

For easy comparison of the two sections we set them out in parallel columns:

PRIMARY ELECTIONS. Sec. 1550-26:

"On the third day after the close of any primary nominating election commissioners . . . shall proceed to canvass the returns of said primary election and tabulate the same. The tabulation of votes for all officers . . . shall be on another separate sheet of paper for each political party and shall be filed in the county court clerk's office immediately after the canvass of the returns and the tabulation of the votes by said election commissioners; and certificates of nomination shall immediately issue to the persons receiving the greatest number of votes for the office for which they were candidates."

GENERAL ELECTIONS. Sec. 1596a-5:

"Within two days next after an election the sheriff shall deposit with the clerk of the county court the returns from the different precincts. On the next day (the third day) the said county board of election commissioners shall meet in the county court clerk's office between ten and twelve o'clock in the morning, open and canvass the returns of such election, and give triplicate or more written certificates of election, over their signatures, of those who have received the highest number of votes for any office exclusively within the gift of the voters of the county."

The majority opinion attempts to distinguish the two sections by calling attention to the fact that the one regulating primary elections calls for a tabulation of the votes and provides that the tabulation "shall be filed in the county court clerk's office immediately after the canvass of the returns." This is not a distinction. The word "canvass" covers and includes the term tabulate, and the expression "canvass the returns of an election" means the inspection and counting of the ballots and a tabulation of the returns so that the result may be definitely known. There can be no canvass of the returns without an inspection and counting of the ballots and a tabulation of the results. So, when you read the two sections with this thought in mind and with the meaning of the word "canvass" clearly fixed, there is no distinction in their meaning. The mere fact that the section governing primary elections directs that "the commissioners shall proceed to canvass the returns of said primary election and tabulate the same," means no more than a direction to canvass the returns, and that is exactly what the section governing general elections required to be done. The sections differ only in their verbiage, not in their spirit or meaning.

"A 'canvass' of an election includes not only the counting of the votes by the inspectors, but the record of the count by the poll clerks upon the tally sheet, so that the tally sheet is a substantial part of a canvass. In Re Stewart, 48 N.Y. Supp, 957."

" 'Canvass,' as applied to an election, would seem to impose an obligation beyond that of merely counting the ballots and comparing the statements of the managers. 'Canvassing' implies searching, scrutiny, investigation, examination. State v. Herland, 7 S.C. 241."

"The term 'canvass' implies search, scrutiny, investigation, examination, and the term 'canvasser' employed to designate the duties of the commissioners would seem to impose an obligation beyond that of merely counting the ballots, and comparing the statements of the managers of the election. Ex Parte Mackey, 15 S.C. 322."

Indiana courts have held that the words "canvass" and "tabulate" were synonymous, it being said in an election case "the word 'tabulated,' as so used, was synonymous with 'canvass,' the duties of the canvassers being purely ministerial, consisting of the mathematical tabulation of the votes of the different precincts, as returned to them. Knuckle v. Coleman, 174 Ind. 315. See 20 C. J. 200."

The majority opinion further attempts to draw a distinction between the meaning of the sections by pointing to the filing of the tabulation, it being said, "the board being required by statute relating to primary elections to make official tabulation of the vote which must immediately be filed in the county court clerk's office, from which and from the date of the filing of which it may be ascertained who has been nominated, and the date on which that fact was officially determined."

That section also requires, as does the section concerning general elections, an immediate issual of a certificate of election, the section reading: "And certificates of nomination shall immediately issue to the person receiving the greatest number of votes." It seems to be the theory of the majority opinion that the election commissioners would willingly file in the county court clerk's office a tabulation of the vote immediately after the canvass, but that the commission in some cases might not for some reason be willing to issue certificates of nomination to the persons receiving the highest number of votes. The certificates of nomination are issued upon printed blanks and a reasonably competent penman could completely fill out such certificate in not exceeding three or four minutes, so that it does not seem that there could be any great importance attached to this. The work of making and filing a tabulation of the vote is equal to if not much greater than the making of a certificate of election. Certainly if the election commission was corrupt, and unwilling to issue certificates of nomination, it would be equally as corrupt and unwilling to file the tabulation of the vote with the county clerk. If the election commission desired to hold up the result it could do so by failing to file the tabulation just as it could by failing to issue the certificate of nomination, so the result cannot be different. The tabulation is not required to be recorded or made a public record, but the word "file," as used in the statutes, undoubtedly means lodge, or left in the office of the county court clerk, for that is the office in which the tabulation is made, the place where the records of the election commission are kept, and where that body generally does its work. The records of the commission are made by its clerk and the books are left in the office of the clerk of the county court but constitute no part of his records. He has possession of the records of the commission but cannot make any letter thereon or do anything more than hold the same for the commission. This is true both for the primary election and general election. Their records are all kept in the office of the county clerk and the commission generally meets there. When they canvass the returns which includes the inspection and counting of the ballots as well as the tabulation, the commission has performed all the duties required of it for either a primary or general election, and when it does its duty in either instance it has inspected, counted and tabulated the vote, and that tabulation is or may be lodged with the records of the commission in the office of the clerk of the county court, and certificates of nomination or election should be forthwith issued to the successful candidates.

One argument advanced for the majority opinion is that the tabulation when filed in the clerk's office, gives immediate, definite information to the various candidates of the final result. That would be so if the tabulation were made public in either a primary or general election, but if the election commission for any reason should desire to withhold such information from the public it could as easily withhold the tabulation as the certificate of nomination or election. Such argument is without force and does not prove that the two sections of the statute to which we have referred either mean or were intended to mean that the election commission should pursue a different course with respect to the canvassing of the returns in a general election from those followed in a primary election.

The rule requiring a contest of a general election to be instituted "within ten days after the final action of the board of canvassers" was first laid down in Hall v. Martin, 183 Ky. 120, the opinion being delivered January 31, 1919, Judge Thomas writing. It referred to the opinion in the case of Ward v. Howard, 177 Ky. 38, laying down the principle that a contestant did not have to wait and in fact could not wait until the certificate of election was issued, to file a contest but must institute contest proceedings, if at all, as soon as the election commission completed its canvass of the returns, and "the final action of the board of canvassers" had been taken, and before the expiration of the ten days from that date. The Hall-Martin case, supra, was followed and the doctrine reaffirmed in Thompson v. Taylor, 184 Ky. 108, the opinion being prepared by Judge Settle for the court. These are the only two cases exactly in point, and they are exactly in point, decided by this court, and although some thirty volumes of Kentucky Reports have been written and published since those opinions were delivered in 1919, the rule laid down there has not been modified or changed in any way by the court in the slightest. The lower court in this case following the rule laid down by this court in the two cases to which we have referred, very properly gave the certificate of election to the appellee, thus putting the question squarely up to this court. What should this court do under the circumstances? Apply the well established rule or make a new one, and assign for the change a reasonless reason, and attempt to discover an undiscoverable distinction between the meaning of the language of the two sections, supra.

The rule of stare decisis is yet in full force and is frequently invoked even in this court. We should stand by the rules established by decided cases. The strength of the law rests largely in the faith which the people have in its unswerving and impartial enforcement, and courts could not function except for the presumption of right which proceeds from the faith which the people have in the impartiality and fairness of judges. In my humble judgment it would be better for the court to adhere to its established rule that all contests in general elections, as in this case, should be instituted within ten days "after the final action of the board of canvassers," and not within ten days after the issual of the certificate of election. That rule has been adhered to through a number of years. No good, sound or sufficient reason has been assigned for an abrogation of the rule, which is a plain and practical one, and the establishment of a contrary rule.

For these reasons I respectfully dissent.