
    Hawkins v. Colbert et al.
    Nov. 13, 1942.
    G. Tom Hawkins for appellant.
    
      J. J. Leary, John S. Cooper, and Elmer Drake for appellees.
   Opinion op the Court by

Judge Fulton

Affirming.

Tbe appellant, G-. Tom Hawkins, wbo was a candidate for tbe Republican nomination for United States Senator at the primary election on August 1, 1942, forwarded to tbe clerk of the Franklin circuit court on August 12 a petition purportedly contesting tbe nomination not only of tbe successful Republican candidate but of tbe Democratic nominee as well. Also named as parties were tbe unsuccessful Republican and Democratic candidates. No specific grounds of contest were set out as required by KRS 122.020 (K. S. Section 1550-28) but tbe petition contained merely a general charge of conspiracy on tbe part of tbe defendants to obtain tbe respective nominations and prevent appellant from securing tbe Republican nomination. Accompanying appellant’s petition was a money order for $1.64. The circuit clerk, tbe day tbe petition was received, wrote a letter to appellant advising him it would be necessary for him to deposit $7.01 additional to pay tbe balance of tbe clerk’s $5 filing fee provided by KRS 64.030 (K. S. Section 1720) and to pay tbe various sheriffs for serving process and that tbe clerk was bolding tbe petition pending receipt of further information. On August 17 appellant, by telegram forwarded $10 to tbe clerk with direction to file tbe petition as of August 12. Tbe clerk, however, endorsed it filed as of August 17, 1942.

Tbe appellees filed special demurrers to tbe petition, challenging tbe jurisdiction of the court because tbe action was not filed in tbe county of tbe respective contestees’ residence and because it was filed too late. Tbe special demurrers were sustained and tbe petition dismissed. This appeal follows.

Both of tbe jurisdictional questions raised by tbe special demurrers justified tbe trial court in sustaining the demurrers and dismissing tbe petition. KRS 122.020 (K. S. 1550-28) regulating tbe procedure in primary election contests provides that tbe petition shall be filed in tbe circuit court of tbe county of tbe contestee’s residence within 15 days from the day of tbe primary election, stating tbe specific grounds relied upon for the contest. No one of tbe defendants in the action was a resident of Franklin County. It is therefore clear that tbe Franklin circuit court was without jurisdiction of the persons of the appellees. And, since the petition was not filed until August 17, it was not filed within 15 days from the day of the primary election as required by the section referred to. The mere lodging of the petition with the clerk without the payment of the $5 filing fee required by the statute amounted to nothing in view of the clerk’s refusal to file it. That he had the right to refuse to file it was decided in Harbison v. George, 228 Ky. 168, 14 S. W. (2d) 405, where it was sought by injunction to compel the clerk to file the petition without payment of the filing fee and it was held that this could not be done — that the clerk was justified in his refusal.

It is argued by appellant, however, that the statute requiring the deposit of the $5 filing fee as a prerequisite to filing a petition is void as being in contravention of the Constitutions of this state and the United States. But in the case referred to this question was fully considered and it was held that the requirement of this deposit was not unreasonable and did. not violate either the Constitution of this state or of the United States.

The trial court correctly sustained the special demurrers and dismissed the petition.

Judgment affirmed.  