
    Gilbert v. Smith, Clerk, et al.
    (Decided October 31, 1911.)
    Appeal from Warren Circuit Court.
    Primary Elections — Call by Governing Authority. — Tbe governing authority oí a political party, having called a primary election providing in the call that if there was only one candidate, the primary should be called off, and he should be declared the nominee by the committee, the certificate of nomination thus given by the committee pursuant to the call is not void and entitles the persons so certified to have their names placed on the official ballot under the party emblem.
    GRIDER & HARDIN, THOMAS & THOMAS, SIMS & RODES for appellant.
    BRADBTJRN & BASHAM, RODES & WALLACE, W. W. MANSFIELD,.MATT O’DOHERTY, CHARLES DRAKE for appellee.
   Opinion by

Chief Justice Hobson

Overruling Motion to Be-instate Injunction.

The plaintiffs filed with the clerk of the Warren County Court on October 23, 1911, a petition in writing under section 1453, Kentucky Statutes, requesting the clerk to place their names upon the official ballots under the Democratic device as the candidates of the Democratic party for the Board of Common Council of the city of Bowling Green. The clerk declined to do so and they thereupon brought this suit against him to obtain a mandatory injunction requiring him to so place their names on the ballots. He filed an answer and on their motion, J. N. Russell and eleven others were allowed to defend the action, and their petition was taken as their answer.

The facts as to Russell and his associates are these: The Democratic 'Committee, regularly constituted,, had a meeting on September 5, 1911, for the purpose of determining how nominations of Democratic candidates for the common council of the city should he made. It determined that the nominations should be made by a primary election which was then called, and in the call it was provided that if there were not exceeding four candidates for either of the three wards of the city, the Committee would meet on October 4, 1911, and declare such candidates the nominees of the party and the primary should be called off. Due notice of the primary was given; Russell and his eleven associates were the only announced, candidates. The Committee met and declared them the nominees and issued to them certificates of nomination which they filed with the county clerk on October 17, 1911.

It is insisted for the paintiffs that under section 1453, Kentucky Statutes, the county clerk is authorized to have printed on the ballots “the names of the candidates nominated by the Convention or primary election” of any party entitled to have its candidates placed on the ballots; and that Russell and his associates were not nominated by a primary election or by a convention.

There were hut twelve members of the council to be elected, four from each of the three wards of the city. (Kentucky Statutes, 3270.) The twelve men who received the certificates were the only candidates in the primary election.

To avoid the cost of holding a primary election when the candidates announced had no opposition, the Committee provided that in this event the primary should be declared off and tbe persons so announced should be declared tbe nominees by tbe Committee. Tbe governing authority of a political party has tbe power to determine bow its nominations shall be made. A Committee would not have tbe authority to declare a primary off if tbe candidates announced bad opposition or there were more than one candidate for tbe office, but when tbe candidate announced in the primary has no opposition, tbe Committee in that event may provide bow the nominations shall be declared. In a case like that before us the Committee itself is under tbe call made by tbe governing authority of tbe party, tbe Convention for nominating tbe candidate. The word “convention” is not used in the Statute in any technical sense. If tbe members of tbe party are not satisfied with tbe action of- tbe Committee, tbe matter must be fought out in tbe party. Tbe Committee js tbe governing authority of tbe party, and a nomination made as provided by it cannot be assailed collaterally in a suit like this. The practice of calling off primaries and having tbe nominations certified by tbe Committee, has been usual with all political parties in tbe State since tbe adoption of tbe present mode of voting. It was said on tbe argument that tbe Committee might resolve itself into a convention, and certify tbe nominations as made by a convention, and that this would satisfy tbe Statute. But disguises are of no effect in law. The sum of tbe matter in such a case is that tbe Committee makes tbe nomination, and it would add nothing to its validity that it was made by tbe Committee styling itself a convention. Tbe conclusion we have reached makes it unnecessary for us to notice tbe other questions raised.

Motion overruled.  