
    Rice v. Jones.
    (Decided Sept. 26, 1933.)
    DAVID BROWNING and H. Y. FORSYTH for appellant.
    CLYDE R. LEVI for appellee.
   Opinion of the Court by

Judge Clay

Affirming.

F. M. Rice and Harry Z. Jones were candidates for the Eepnblican nomination for the office of magistrate in the Ponrth magisterial district of Boyd connty. As counted by the connty election commissioners, Jones received a majority of -27 votes and was awarded the certificate of nomination. In dne time Eice filed his petition. contesting the election. A demnrrer was sustained to the petition, and the petition was dismissed. Eice appeals.

Briefly stated, the facts pleaded are these: The Ponrth magisterial district contains seventeen precincts. In fourteen of these precincts where the ballots were' properly prepared contestant received 291 votes and contestee 228 votes. In three other precincts the connty clerk, by mistake, inadvertence, oversight, or fraud,, caused the official ballots to be printed without the names of contestant or contestee or the names of any other candidates for the Eepnblican nomination for magistrate in said district. After the voting had commenced in said three precincts and had continued for about two hours, during which time many voters had cast their ballots and left the voting place without having had an opportunity to vote for' contestant or any other candidate for magistrate, the county court clerk appeared and delivered to the election officers of the three precincts an unauthorized, illegal, supplemental ballot on which were printed the names of the contestant and contestee and the names of other candidates, and said unauthorized, supplemental ballots were from time to time during the rest of the day illegally issued and delivered to the voters who attempted to vote and deposit them in the ballot boxes of each of the precincts, all of which acts of the county court clerk in failing to cause the names to be printed on the ballots and in preparing supplemental ballots and delivering them to the election officers, and the acts of the election officers in issuing and delivering them to the voters, together with' the original ballots, were irregular, illegal, and unwarranted by the election laws of the state, and all of such supplemental ballots issued and cast were void and illegal. Contestant was not informed of such mistake of the county court clerk, and did not know of his mistake or fraud in the preparation of the ballots until about 8 a. m. on the day of the election, and for that reason was unable to proceed as provided by law to have the ballots corrected before they were delivered to the election officers. All the acts of the Board of Election Commissioners in counting said illegal ballots in said three precincts were invalid, and as a result thereof contestant was illegally and wrongfully deprived of his certificate of nomination. All the votes cast and counted in said three precincts were not voted on any legal or official ballot, and should be disregarded and eliminated from the total shown in the official canvass by the Boyd county board of election commissioners. Prior to 8 o’clock a. m. on said election day more than enough voters appeared and voted on ballots which did not contain the names of any candidate for magistrate to change the result of the election, and «those voters were deprived of the privilege of voting on any ballot containing contestant’s name, and for that reason said election in said three precincts should be thrown out and disregarded. On September 2, 1933, contestant filed an amended petition pleading in substance that he received 63 more legal votes than were received by con-testee, and that be received a plurality of all tbe legal votes cast.

We shall .first consider tbe contention that tbe votes cast in tbe three precincts- in question were illegal and should not be counted because tbe supplemental ballots furnished by tbe county clerk were not authorized by law. Tbe duty of having ballots printed, bound, and ready for distribution devolves upon tbe county clerk, and tbe law requires that be shall furnish 50 per cent, more ballots for each precinct than were votes cast in said precinct at tbe last state or national election. Kentucky Statutes, sec. 1465. It is also tbe law that in primary elections there shall be a separate ballot for each political party, and that such ballot shall be printed substantially in tbe same manner as is provided by law in case of regular elections, with tbe exception that on tbe back of each ballot shall be printed tbe words, “Official Primary Ballot,” and at tbe bead thereof shall be printed tbe words “Official Primary Ballot” together with tbe proper party name and tbe party emblém. It is also tbe law that all tbe official ballots to be voted in any primary election shall be printed in black ink upon a good quality of white paper, and that tbe arrangement of each ballot shall be exactly tbe same for each political party, and that tbe size and printing shall be' tbe same for each political party. Section 1550-17, Kentucky Statutes, Supplement to 1933. It is not alleged that tbe supplemental ballots were not printed in black ink upon a good quality of white paper or that tbe names of tbe candidates for magistrate were not properly placed or arranged on tbe ballot. Therefore tbe only question is, Did tbe county clerk have tbe authority to furnish the supplemental ballots? Tbe rule is that, where the deficiency in tbe number of ballots is due to tbe inadequacy of tbe law, tbe clerk cannot supply them, but, where tbe deficiency is due to tbe act of an individual, either through inadvertence or fraud, tbe clerk may supply tbe deficiency. Finley v. Rose, 165 Ky. 408, 177 S. W. 433. To tbe same effect is Scholl v. Bell, 125 Ky. 750, 102 S. W. 248. Here there was no deficiency in the number-of ballots required by tbe statute to be furnished. The case is simply one where tbe ballots .furnished did not contain tbe names of any candidates for magistrate. This was due to the oversight or mistake of the clerk or the printer, and, upon discovering the error, the clerk had the power and it was his duty to furnish additional ballots correcting the error. That being true the votes cast upon the supplemental ballots were legal, and were properly counted by the canvassing board.

The other ground on which it is insisted that the three precincts should be thrown out and the supplemental ballots not counted is that, prior to 8 o’clock when the supplemental ballots were furnished, “more than enough voters appeared and voted on ballots which did not contain his (contestant’s) name, or the name of any candidate for magistrate to change the result of the election,” and “that those voters were deprived of the privilege of voting at all on any ballots containing his (contestant’s) name.” Even if it be conceded, without deciding, that a case might arise where a delay in furnishing proper ballots might authorize the throwing out of a precinct, it is clear that the allegations of the petition are wholly insufficient for that purpose. Whether or not a particular precinct should be thrown out depends on what took place in that precinct. The petition does not deal with any particular precinct. It uses general language concerning all three of the precincts in question, and does not give the names or the number of voters who voted in each precinct prior to the time the supplemental ballots were furnished or allege how they would have voted if they had had the opportunity to vote. In short, the petition merely states a general conclusion, and does not allege facts showing that more than enough voters appeared and voted on ballots which did not contain contestant’s name to change the result of the election.

It follows that the demurrer to the petition was properly sustained.

Judgment affirmed.  