
    CASE 19 — MANDAMUS
    DECEMBER 23.
    Hammock vs. Barnes, &c.
    APPEAL PROM CALDWELL CIRCUIT COURT:
    1. A tie vote for two candidates for the office of town marshal of the town of Princeton, having been received at an election for town officers, under the special statute, which neither required nor authorized the examiners to do more than to examine the polls and report the legal number of votes cast for each candidate, said board of examiners had no right to decide by casting lots. Such a decision would be illegal and void, and cannot be compelled by mandamus.
    2. The general law regulating the examining boards in State, district, and county elections, and Requiring them to cast lots in cases of tie votes, does not embrace town elections under special statutes for town officers. The circuit court properly refused a mandamus against the board of examiners to compel them to decide by casting lots between two candidates having an equal number of votes for the office of town marshal of the town of Princeton.
    Geo. W. Duvall, For Appellant,
    CITED—
    
      Revised Statutes, chap. 32, art. 3, sec. 2; also sub-sec. 4.
    
      1 Stanton, 438, sec. 7, p. 439.
    
      Acts 1863-4, vol. 2,p. 231, sec. 19; also p. 229, sec. 13.
    
      1 Met., 540; Batman vs. Megowan.
    
    1 Duvall, 37, 40; Surman vs. Menton.
    
    
      Stanton's Code, p. 107 ; Myers' Code, pp. 37, 45, and note 144.
    P. H. Darby, For Appellees,
    CITED—
    
      2 Sess. Acts, 1853-4,/». 231.
    
      Revised Statutes, chap. 32, art. 5; 1 Stanton, 436-39.
   JUDGE ROBEBTSON

delivered the- opinion of the court :

At an election of town officers in Princeton, Caldwell county, Kentucky, the appellees, constituting the board of examiners to compare the polls, reported that the appellant and M. E. Mitchasson had received an equal number of legal votes for town marshal, and, declining to decide by lot which of them should be declared elected, the appellant filed in the circuit court a petition for a mandamus to compel the examiners to decide the contest by casting lots between the competitors.

The circuit court overruled the petition, and on this appeal this court adjudges that decision right.

The special statute by which that election was regulated neither required nor authorized the examiners to do more than to examine the polls and report the legal votes cast for each of the candidates; and the general law regulating the examining boards in State, district, and county elections, and requiring them to cast lots in cases of tie votes, does not embrace this case. Had the appellees presumed to decide by lottery, their decision would, therefore, have been illegal and void.

Wherefore, the judgment of the circuit court is affirmed.  