
    Brewer v. Compton.
    Dec. 16, 1938.
    
      FRANCIS M. BURKE and J. ERWIN SANDERS for appellant.
    E. J. PICKLESIMER for appellee.
   Opinion of the Court by

Judge Fulton

Reversing.

The appellant, Susie Brewer, and appellee, Lee Compton, were rival candidates for the office of subdis-trict trustee, school district No. 142 in Pike County, on July 9, 1938, appellant receiving 65 votes and appellee 66 votes.

Appellant in due time filed her petition in the Pike Circuit Court contesting appellee’s election. Appellee filed answer in due time containing proper allegations showing that 13 illegal votes were counted for appellant. Appellant filed reply 25 days after the answer was filed and on motion the reply was properly stricken from the files because not filed within the time required hv law, thus leaving the allegations as to these 13 illegal votes undenied.

On final trial, the court deducted these 13 illegal votes from the 65 votes received by appellant, leaving her 52 votes. The lower court also deducted 11 illegal votes from appellee’s 66, leaving him 55 votes, thereby giving him a majority of three votes. The lower court also adjudged that appellee had not violated any of thq provisions of tire Corrupt Practice Act, Kentucky Statutes, section 1565b-l et seq., declared Mm to be duly elected and dismissed appellant’s petition. Prom tbis judgment appellant prosecutes tMs appeal, contending (1) tbat tbe court erred in striking tbe 13 illegal votes from tbe number received by appellant because tbe prayer of tbe answer, stating grounds of counter contest, was not sufficient to authorize tbis deduction, and (2) tbat tbe court erred in refusing to adjudge tbat appellee bad violated tbe Corrupt Practice Act.

Tbe prayer of tbe answer was as follows:

“Wherefore, tbe contestant prays tbat tbe contestant’s petition be dismissed and tbat sbe take nothing thereby; and tbat tbis contestee be adjudged tbe duly elected, qualified trustee in school district No. 142, Pike County, Kentucky.” (Tbe word “contestant” appearing as tbe third word in tbis prayer is evidently a typographical error.)

It is appellant’s theory tbat, although proper allegations bad been made showing tbat 13 persons voted illegally for appellant, tbis prayer was not sufficient in tbat it failed to include a prayer tbat tbe 13 illegal votes be deducted from tbe number counted for appellant. We are not impressed with tbis contention on her part and are of tbe opinion tbat tbis prayer was sufficient. Tbe answer contained tbe necessary allegations establishing tbe illegality of tbe votes for tbe purpose of having them deducted from tbe votes counted for appellant. Tbe authorities cited by appellant do not bear out tbe contention tbat tbe prayer of tbe petition must contain specific language praying tbat they be deducted from tbe total received by appellant. We are of tbe opinion tbat tbe prayer of the petition tbat contestee be adjudged tbe duly elected qualified trustee in tbe district was sufficient.

We are of tbe opimon tbat appellant’s second contention, tbat appellee violated tbe Corrupt Practice Act, must be sustained. Five witnesses testified on tMs issue, one of whom states tbat appellee, tbe night before tbe election, in company with bis father, talked to tbe witness and appellee offered him $2 for bis vote; tbat appellee’s father, in bis presence, raised tbe offer and made it $3; tbat pursuant to tbis offer be went to tbe election and voted for appellee and before be did so ap-pellee’s father called him out and' offered him $3 to vote on the table for appellee, which he did, and for his vote he received the $3 from appellee’s father.

Another witness testifies that appellee agreed to pay him $2 for his vote if he wonld vote on the table and that he did so on the strength of this offer, bnt that ap-pellee did not pay him.

Another witness testifies that appellee offered her $5 for her vote bnt that she refused the offer and voted for his opponent.

Another witness says that appellee urged her to vote for him and, when she refused to commit herself as to whom she would vote for, appellee said to her, “We pay money,” but did not say how much and offered her no specific sum. She voted for appellant.

Another witness states that appellee, the morning-of the election, offered him $5 for the three votes in his family; that later he raised this offer to $10 and still later offered to give him $20 for the three votes. He refused appellee’s offer and he and his family voted for appellant. The trial court did not enter into any discussion of the evidence on this issue, the judgment in reference thereto reciting only that “the court cannot say from the evidence that the contestee, Lee Compton, violated any provisions of the Corrupt Practice Act and therefore does not so hold.” In the ordinary case, where testimony to the extent herein set out was denied by the opposite party, we- might possibly give enough weight to the finding of the trial judge to sustain his finding that the Corrupt Practice Act was not violated; but this is doubtful. No one of the witnesses mentioned above was impeached and we are inclined to the opinion that some one or more of them were telling the truth and, as this record stands, their testimony is undenied. Depositions for appellee were taken, in which he denied the facts stated by these witnesses but these depositions were properly stricken by-the trial' court because they were not taken within the time required by law, thereby, for the purposes of the record, leaving the testimony undenied. In view of this situation, we are constrained to hold that the evidence shows that appellee was guilty of violating the Corrupt Practice Act by reason of bribery and attempted bribery of voters.

Where a candidate, who has received the majority of votes in a general election, becomes incapacitated tp assume the office by reason of violations of the Corrupt Practice Act, the court must declare the office vacant and to he filled in the manner provided by law. McKinney v. Barker, 180 Ky. 526, 203 S. W. 303, L. R. A. 1918E, 581; Booher v. Smith, 230 Ky. 643, 20 S. W. (2d) 477; Walker v. Taylor, 230 Ky. 689, 20 S. W. (2d) 727. The judgment is therefore reversed with directions to enter a judgment declaring the office vacant.  