Wills v. Paducah Building & Loan Association. tributed by the chancellor. The borrowing member, who before the assignment elected to get out, can, in the nature of the case, stand in no better light than any other member who before the assignment gave notice of withdrawal and demanded his money. For both had the same right of elec tion, and the election of one of the members in a mutual concern can not have any greater effect than the election of another member, in the distribution of the assets of the insolvent concern which have come under the control of a court of chancery, and must, like the assets of any other trust, be administered on equitable principles. The proof shows here that the association was insolvent in March, when appellant ceased to pay, and had been for some time. before that. The stockholders in the association had contributed the assets which it had. To permit one class of stockholders, who had borrowed these assets, to apply them to the payment of their debts, and throw the entire loss on the other stockholders, would be to violate the fundamental principle that equality is equity. We are therefore of opinion that the learned circuit judge properly ruled that appellant was not entitled to credit on her debt for the amount she had paid as dues on the stock. The answer of the assignee to appellant's suit, taken in connection with the petition, set out, all the facts, and the amount of the debt of appellant was a mere matter of calculation on these facts. On the whole case, we see no error in the judgment to the substantial prejudice of appellant, and the judgment is therefore affirmed. Davidson v. Johnson. CASE 29--CONTEST BY GEORGE H. DAVIDSON OF THE ELECTION OF W. A. JOHNSON TO THE OFFICE OF MAYOR OF THE CITY OF COVINGTON. -APRIL 29. Davidson v. Johnson. APPEAL FROM KENTON CIRCUIT COURT. JUDGMENT FOR CONTESTEE AND CONTESTANT APPEALS. AFFIRMED. JURISDICTION-WAIVER OF OBJECTION-FAILURE TO SPECIFY GROUND OF OBJECTION-ELECTION CONTESTS-VALIDITY OF LAW CREATING CONTEST BOARD. Held: 1. The fact that the contestee in an election contest, after his objection to the jurisdiction of the contest board had been overruled, made defense, and upon appeal by the contestant to the circuit court again made defense after his objection to the jurisdiction of the court had been overruled, was not a waiver of his objection to the jurisdiction of the subject-matter. 2. Objection to the court's jurisdiction of the subject-matter may be made at any time during the trial. 3. Even if the circuit court might have had jurisdiction of an election contest if proceedings had been originally instituted therein, a question not determined, it could not acquire jurisdiction to hear and determine the contest upon a record made out and transmitted to it by a board having no power to try a contested election. 4. The statute creating a board, with judicial powers, to try county election contests, is void, as creating a new court, which is forbidden by the Constitution. 5. The fact that the contestee did not specify, as a ground of his demurrer to the jurisdiction of the contest board, that the law creating the board was unconstitutional, does not preclude him from relying on that ground upon appeal. 6. A proper judgment will be affirmed, though the lower court may have given a wrong reason therefor. W. H. MACKEY, F. M. TRACY AND HARVEY MEYERS, FOR AP PELLANT. QUESTIONS DISCUSSED. 1. The election of November 7th, 1899, in the city of Cov ington was not "free and equal." 2. The mandatory requirements of the Kentucky Stat Davidson v. Johnson. utes essential to a fair election, particularly sections 1470 and 1481 of the Kentucky Statutes, were recklessly disregarded. 3. There was fraud in the conduct of the election and in the counting of the ballots and in the making of the returns. 4. The neglect of mandatory provisions of the law essential to a "free and equal" election, the intimidation and fraud practiced, in the precincts mentioned in the notice of contest herein, were such as to discredit entirely the returns from the said precincts, particularly the returns from precinct A. of the first ward, precinct C. of the second ward, and precinct E. of the third ward; and the returns from those precincts must be rejected. The rejection of the returns from the three precincts mentioned, viz.: that is, A. of the first ward, C. of the second ward, and E. of the third ward will result in a large plurality for the appellant, Davidson. The rejection of the returns fom precinct C. of the second ward alone will also elect Davidson by a considerable plurality. 5. The returns from precinct A. of the first ward, precinct C. of the second ward, and precinct E. of the third ward being invalid and unworthy of credit by reason of neglect of mandatory provision and of fraud practiced, and the appellee, Johnson, having failed to establish his election by evidence other than that afforded by the returns, the judgment of this court must be in favor of Davidson, the appellant. LIST OF AUTHORITIES CITED IN BRIEF. Sec. 6 of Constitution of Kentucky; Secs. 1470 and 1481 of K. S.; Hocker v. Pendleton, 100 Ky., 727; "On Mandatory and Directory Statutes," Ky. Law Rep. vol. 2, 166, 167, 168; Kock v. Bridges, 45 Miss., 258; Hines v. Lockport, 5 Lansing (N. Y.), 162; Sedgwick on Const. Law, p. 317, note; Cooley on Const. Limitations (2d ed.), marg. p. 77; Hogan v. Devlin, 2 Daly, p. 184; People v. San Francisco, 26 Cal., 595; Supervisors of Niagra v. People, 7 Hill, 511; Vattel's Rule, Rule 30 in Potter's Dwarris on Statutes, p. 130; Tebbs v. Smith, 108 Cal., 101; Am. & Eng. Ency. of Law (2d ed.), vol. 10, p. 588; Com v. Miller, 98 Ky. pp. 446, 449, 450; Com. v. Barry, 98 Ky., p. 316; Kentucky Statutes, secs. 1484, 1577, 1578, 1588, 1591; Kentucky Statutes, sec. 1482; Covode v. Foster, 2 Bartlett's Election Cases, 600; Howard v. Cooper, 1 Bartlett's Election Cases, 275; McCrary on Elections (4th ed.), secs. 569, 570, 571, 574, 575, 576, 578, 579, 580, 582a, 583; Atty. Gen. v. Stillson, 108 Mich., 419; Am. & Eng. Ency. of Law. (2d ed.), vol. 10, pp. 690, 774, 832; Russell v. McDowell, 83 Cal., 77; Am. & Eng. Ency. of Davidson v. Johnson. Law (2d ed.), vol. 10, pp. 766, 767; Atkinson v. Lorber, 111 Cal., 419; Gaston v. Lamkin, 115, Mo., 20; Am. & Eng. Ency. of Law (2d ed), vol. 10, p. 696; Smith v. Shelley, 2 Ellsworth's Election Cases, 18; In re Duffy, 4 Brewster (Pa.), 531; Oliver v. Bode, et al., 3 Ohio Nisi Prius, Rep., 298; Reed v. Kneass, 2 Parsons (Phila.), 584; McCrary on Elections (4th ed.), 502. B. F. GRAZIANI, ATTORNEY FOR APPELLEE. The contestant, George H. Davidson, through his attorney has endeavored to give five reasons for the disfranchisement of votes in precinct A. of first ward, C. of the second ward and E. of the third ward-claiming (1) that the election was not free and equal, (2) that the election law was disregarded, (3) that there was fraud in the conduct of the election and in the counting of the ballots, (4) that the election was not free and equal and was fraudulent and there appears a repetition of the first three reasons, and (5) that the contestant, W. A. Johnson, had failed to show by proof that the election in precinct A. of the first, C. of the second and E. of the third was fair. The only essential proposition advanced by contestant to be met, is, was the count made by certain election officers in the three precincts above mentioned fairly made or not? Our contention is, that before this court can invalidate or annul the election of contestee, W. A. Johnson, as mayor of the city of Covington, there must be: 1. Positive proof that the election in these three precinct, and the returns made by these officers, were false; that the presumption is in favor of the regularity of the acts of public offi cers. 2. The burden of proof is upon the party alleging any irregularity. 3. The result of the election must be affected by the irregularity. 4. The maxim that fraud is not to be presumed, applies to election officers, making returns, as it does to individuals in other matters. 5. That the presumption is against fraud, and is greater on account of the acts of public officers, rather than individuals, acting as they do under the sanction of their official oaths. 6. That nothing but the most credible, positive and unequivocal evidence should be permitted to destroy the credit of official returns. 7. That it is not sufficient to cast suspicion on them. 8. They must be proven fraudulent before they can be rejected. Davidson v. Johnson. 9. The burden of proof is upon the contestant to prove as above set out, the fraud and have the precincts rejected because of irregularities. CITATIONS. Pratt v. Breckinridge, 23 Kentucky Law Rep., p. —; Civil Code, sec. 92, subsec. 4; Civil Code, sec. 118; sec. 13 Election Law of 1898; Act of 1894, article 7, sec. 1; Hugh's Admr. v. Hardesty, 13 Bush, 366; Hughey v. Sidwell's Heirs, 18 Ben Monroe, (p. 209 at bottom) Fidler v. Hall, 2 Met., p. 262; Grant v. Tams & Co., 7 T. B. Monroe, p. 150 (at bottom); Amer. & Eng. Ency. of Law, vol. 12, pages 301-2-2-306; Elliott v. Piersol, 1 Pet. (U. S.) 328; Hickey's Lessee v. Stewart, 3 How. (U. S.) 750; Pennywit v. Foote, 27 Ohio St., 600; Nazro v. Cragin, 3 Dillen, (U. S.) 474; Gormly v. McIntosh, 22 Barb., 271; Barton v. Barton, 80 Ky., page 214; Amer. & Eng. Ency. of Law, vols. 6, 326, 354, and 433; Anderson v. Winfree, 85 Ky., page 609. OPINION OF THE COURT BY JUDGE GUFFY-AFFIRMING. The appellant and appellee were at the November election, 1899, candidates for the office of mayor of Covington, and as such were voted for. The election commissioners, after receiving the returns and canvassing the same, issued a certificate of election to the appellee, Johnson. Soon thereafter the appellant served notice of contest upon the appellee, notifying him that appellant contested his election, and would, before the said election commissioners of Kenton county, claim to be the duly elected mayor of said city, and asking a judgment to that effect at the hands of the commissioners. Numerous grounds are relied upon in the notice, which need not be recited. The appellee demurred to the jurisdiction of the said commissioners to hear and determine the contest, which demurrer was overruled by the commissioners. He also sought in other ways to prevent the commissioners from hearing, trying, and determining the matter, claiming that they had no jurisdiction to do so; all of which motions and demurrers were overruled, and the commissioners, as a contest board, proceeded to hear and |