
    Case 90 — Action by Edwards against Loy- to Contest an Election
    June 14.
    Edwards v. Loy.
    APPEAL FROM GREEN CIRCUIT COUI
    Judgment for Defendant and Plaintiff Appeals.
    Reversed.
    Elections — Name of Candidate Written on Ballot by Clerk-— Contestant Need not Prove Undenied Allegations of Petition — Costs.
    Held: 1. Under Kentucky Statutes, section 1471, a voter who desires to vote for a person whose name is not printed on the ballot must write the name himself, and stamp in the square opposite the name; and therefore ballots stamped only in a device at the head of a column were improperly counted for one whose name was written in the column by the clerk- before .handing the ballot to the voter.
    2. A candidate, though receiving only fortyJwo votes for a county office, was entitled to the certificate of election, no votes being cast for any other person for that office'.
    3. The plaintiff in an action t'o contest am election need not prove the allegations of his petition, where there is no denial of them, though defendant was not a candidate for the office in contest, and refuses to accept the certificate1 or to qualify, and is therefore only a nominal party.
    4. The defendant in such an action, being only a nominal party, should not be required to pay costs.
    W. N. FOSTER, FOR APPELLANT.
    POINTS AND AUTHORITIES CITED.
    1. The G-roon circuit court had jurisdiction in contest case. Acts Legislature, (190.0, Oct. 24th), sec. 12, p. 41. Also Kentucky Election Law, sec. 79, p. 57.
    2. No ballot other than the -secret official ballot furnished by the county court clerk to -the clerks of the election voting precincts, of said election, as intended by the statute shall be used. Kentucky Statutes, secs. 1446, 1471, 1475, 1569 and 1570; Rollins v. McKinney, 57 S. W. R., (Mo.) 1027.
    
      3. In default judgments every material allegation of the pleadings must, for the purpose of the action, he taken as true unless specifically denied. Civil Code, sec. 126, 2 A. K. Mar., 130.
   Opinion of the coubt by

JUDGE PAYNTER

Revebsing.

The appellant was a candidate for the office of sheriff of Green county at the November election, 1901. His name was regularly placed upon the official ballot for that office. He received forty-two votes. The appellee, Ben F. Loy, was not a candidate for the office of sheriff-, and his name was not printed upon the official ballot which the county clerk furnished the officers of election in that county. At a number of voting precincts clerks of election, before handing the official ballots to voters, wrote in ink upon it in a blank space left on the ballot the natae of the appellee for the office of sheriff. Several hundred voters received the ballots, and stamped it in the device over the column containing the names of candidates for the county offices in which the name of Loy was written as stated. No cross was made in the square opposite the name of Loy. which had been written by the clerk of the election. No voter requested the clerk to write Loy’s name on his. ballot. The election officers returned these ballots as having been voted for Loy. The returns were canvassed by the county election commissioners, and the certificate of election was issued to him for the office of,sheriff. He refused to accept the certifica!e or to qualify as sheriff. This, an action in equity, was instituted by the appellant to impeach the election returns, and to have the office of sheriff adjudged to him. We have stated substantially the facts averred in the petition. No answer was filed in the action, and no defense was made. The plaintiff did not take any testimony, presumably because there was no issue made upon the averments of his petition. The case was submitted to the court, and lie dismissed the petition. The reason for doing so does not appear. The ballots which were counted for Loy were not voted for him. The clerk of election was not authorized to write his name upon them. As Loy’s name had not -been printed on the official ballot as a candidate for sheriff, the voter who desired to vote for him for the office of sheriff was authorized to write his name in the blank space left for that -purpose, and stamp a cross in the square opposite his name, and.when he had done so, and deposited the ballot in the ballot box, it could then have been counted for him. Section 1471, Kentucky Statutes. The voters neither wrote the name of Loy on the ballot nor stamped in the square opposite the name after one had been written. Such ballots were not voted for Loy, and should not have been counted for him. It follows from this conclusion that Loy did not receive any votes at that election for the office of sheriff. The election officers, in their returns, should not have certified any votes for him. While Edwards received but a few votes, still they were the only ones cast for any one at that election for the office of sheriff. His name uot appearing under The Democratic, or Republican device, but under a device which was a picture of a horse, his candidacy did not seem to appeal to the members of either of the dominant parties for much support. The forty-two votes which he received entitled him to the office, as much as he would have been had he received every vote cast at that election. The court below may have dismissed the petition upon the idea that the contestant did not take evidence to support the averments of his' petition. Until there was an issue made by a denial of them, it was unnecessary for him to take any evidence to support them. Section 29 of election laws provides for filing an answer in an action instituted to contest the right to an office, If, in the answer the contest.ee sets up grounds of contest against tiie contestant, the reply must be filed thereto. It is also provided that the affirmative allegation in the reply shall be treated as controverted, and no subsequent pleadings allowed, and the action shall proceed as an equity action. It is contemplated by the law that the parties shall form an issue upon the grounds of contest. In equity cases issues must be formed by the pleadings, and, if the essential averments are not controverted, they stand admitted. While the public is interested in a contested election, it is in fact a controversy between two persons. The plaintiff was deprived of the right to be returned elected to the office of sheriff by reason of the abortive attempt of the electors or officers of the election to defeat him. He was deprived of his certificate of election by reason of the fact that the election officers certified that Loy had received a certain number of votes, when as a matter of law he had not received any. The plaintiff had failed to obtain the office by reason of the fact that the appellee’s name had been improperly used, to deprive him oLlt. Appellee may have been unwillingly or unwittingly placed in the position where his name was used to deprive appellant of a right, but the only way the right could be restored was by suing him. If it was. proper to sue hhh, as we think it was, then the issues should be formed and tried in other cases of contested elections. We are of the opinion that the plaintiff: had the right to institute the action against him. Appellee was simply a nominal party to this proceeding, and should not be adjudged to pay any costs. Appellant should be adjudged to pay all costs. Section 889, Kentucky Statutes.

The judgment is reversed, with direction to the court below to adjudge that tlie appellant was elected sheriff of Green county at the November election, 1901, and that he is entitled to the office, and for further proceedings consistent with this opinion.

Whole court sitting.

Judge Hobson’s

dissenting opinion:

Loy declined to accept the certificate. He failed to qualify. The office became vacant, and he ¡had no interest in the controversy. He was only a nominal party to the action, and his failure to answer the petition did not relieve the plaintiff of the necessity of taking his proof as provided by the statute. The office of sheriff is a matter of public interest, and the mere failure of a nominal party, who had no interest in the office, should not be allowed to confer the office on one who may in fact have no right to it. The certificates of the officers who conducted the election and counted and canvassed the returns show appellant was not elected. These official certificates are prhm fa-cie correct, and should not be overthrown by the unsustained allegations of the plaintiff’s petition where the defendant is only a nominal party, and fails to answer and defend a case in which he has no interest. I therefore dissent from the opinion.

Chief Justice Guffy' concurs in this dissent.  