
    CASE 43. — ACTION BY JOHN H. WILSON AGAINST WILLIAM L. BROWN TO RECOVER THE OFFICE OF CIRCUIT JUDGE OF THE TWENTY-SEVENTH JUDICIAL DISTRICT.
    October 17, 1900.
    Wilson v. Brown.
    Appeal from Jefferson Circuit Court (Common Pleas Division.)
    Judgment for plaintiff, and defendant appeals.—
    Affirmed.
    1. Election — Void Election — Failure to Give Notice. — One who is in possession of an offilce under a valid appointment need •nor have his right determined by the contest board, to entitle him. to hold against one whoi claims Ithe office under a void election.
    2. An .election for circuit judge was void where Hiere was. no • notice of the election, and the voters were in ignorance .that the offilce was to he filled, only 94 persons out of a ito.tal of about 12,000 voting, and those -persons voting by means of slips stuck on the official ballots.
    D. W. SANDERS and JOHN H. WILSON for appellant.
    CHAS. R. BROCK, J. W. ALCORN and J. A. CRAFT, for appellee.
   Opinion of the Court by

Judge Hobson

Affirming.

Appellant filed this snit to recover the office of circuit judge of the twenty-seventh judicial district. He alleged in his petition these facts: At the regular November election, 1897, A. H. Clark was elected judge of that district, and died after serving a few months of his term. Appellee, W. L. Brown, was thereupon appointed by the Governor to fill the vacancy. The (Governor also issued a proclamation ordering an election to be beld at tbe following November election to fill tbe unexpired term. At tbat election, in tbe fall of 1898, H. C. Eversole was elected and duly commissioned and qualified. After tbis appellee claiming tbat Judge Eversole’s election was void on tbe ground tbat a circuit judge could not constitutionally be elected ibat year, an agreed case was made to test tbe question. Tbis case was decided in tbe Fayette circuit court, October 31, 1899, in favor of appellee. An appeal was taken from tbis judgment, and on November 11, 1899, it was affirmed by tbis court, bolding tbat an election could not, under tbe Constitution, be beld in tbe year 1898 to fill a vacancy in tbe office of circuit judge, and tbat Judge Eversole’s election was void. In tbe meantime, on November 7, tbe annual election bad been beld, and, altbougb no proclamation bad been issued for an election to fill tbe vacancy at tbat time, appellant was voted for and received a majority of tbe votes cast for tbat office. Returns were duly made, and in due time be received a certificate from tbe State canvassing board and a commission from tbe G-overnor. But appellee refused to surrender tbe office to bim.

Appellee, by bis answer to tbe petition, denied tbat an election was beld to fill tbe vacancy in tbe office in November, 1899. He also alleged these facts: Tbat no names were placed on tbe official ballots as candidates for tbis office, and there was nothing on tbe ballots to indicate tbat tbe office was to be filled at tbat election; tbat appellant made no public announcement of bis candidacy, but a few hours before tbe polls were opened caused to be printed a number of pasters, having on them tbe words: “For Circuit Judge, Twenty-seventh Judicial District of Kentucky, John H. Wilson;” that on the morning of the election he distributed these pasters among some of th^ voters at the town of his residence, and of more than 600 persons who voted there that day, only 94 pasted these slips on their ballots; and that of the 11,800 votes cast at that election in the district appellant received only the 94 votes mentioned.

Appellant demurred to the answer; the court in a written opinion, held in substance the answer good, and carried back the demurrer to the petition and sustained it to the petition. Appellant declining to plead further, his action was dismissed.

It is insisted for appellant with great earnestness and ability that the matters relied on by appellee to defeat the action cannot be heard by the courts, but should have been presented to the board for trying contested elections. Appellant’s right to the office depends upon the validity of the election. If the election was void, it- conferred no rights. Appellee being in possession of the office under a valid appointment cannot be required to surrender possession to appellant if the election under which he claims was void; nor was he required to go before the contest board to determine this question. He has the right to hold the office until the vacancy is filled by a valid election. The certificate of the canvassing board and the commission of the Governor conferred on appellant no right to the offi®e, if his election was void, for these were simply based on the face of the returns. When title to an office is claimed under an election or appointment, the courts must of necessity have jurisdiction to determine whether the election was void.

The only question, therefore, to he determined on this appeal is whether the election in question was void. ■ The rule is thus stated in McCreary„on Elections, 4th Edition, section 176:

. “It must he conceded by all that time and place are of the substance of every election, while many provisions which appertain to the manner of conducting an election may he directory only. It does not, however, follow that formal notice of 'the time and place of holding an election is always essential -to its validity. Whether it is so or not depends upon the question whether the want of formal notice has resulted in depriving any portion of the electors of their rights.”

Again the same learned author says, sections 179-180:

“It is doubtless perfectly true that where the election has been held at the proper time and the proper place, and the electors have had notice and have participated in it, the want of such notice as the law provides' will not render it void. But if (it) appear that due notice has "not been given and that a portion of the electors have been thereby deprived of their right to vote, and particularly if the number thus deprived is sufficient to have changed the result if they had voted on one side or the other, in such a case the election is clearly void.”

The general rule upon this subject is given by Judge Cooley as follows:

“Where by the express provisions of the statute, the election is to he held after proclamation, or notice, announcing the time or the place, or both, and where no such proclamation has been made, or notice given, the election is void. But where both the time and the place of. an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer whose duty it is to give notice of the election has failed in that duty. The right to hold the election in such a case is derived from the law, and not from the notice. And this rule will apply to an election to fill a vacancy, if the same occurs long enough before the election to have become generally notorious, and if it was in fact generally known.”

The same rule is in effect laid down in Mechem on Public Offices, section 174, and in the American and English Encyclopedia of Law, vol. 10, 2d edition, page 627, where a number of authorities are collected.

Under this rule, it seems clear to us the election of appellant must be held void on the facts stated in the answer. The Constitution requires the circuit judges to be elected by the people, and it contemplates that they shall have a fair opportunity to express their choice in the selection of this officer, in many respects the most important to them of all the officers for whom they vote. It would be a manifest perversion of the Constitution to allow a man to secure this office on the vote of 94 persons out of a total of something like 12,000; by means of pasters stuck on the original ballots when there had been no proclamation for the election, and the voters were in ignorance that the office was to be filled. While all the facts set out in the answer do not appear from the petition, we think there is enough in it, taking its allegations against the pleader, to show an utter want of notice to the electors that this office was to be filled at that election. The Governor had called a special election in November, 1898, to fill this vacancy fot the rest of the term; Judge Eversole. who was then elected had qualified and taken possession of the office. The agreed case between him and Judge Brown to determine the validity of his election was decided in the Pa3mtte circuit court within seven days before the election, and an appeal was immediately taken to this court and was pending in this court and undetermined when the election was held. It does not appear from the petition that any notice cf any kind was given, and from the facts stated the only reasonable inference is that none could have been given. The voters of the district could not have known or understood under the circumstances that an election to fill the vacancy in this office would be held at that time.

Judgment affirmed. Whole court sitting.  