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Denny, &c. v. Bosworth, &c.

he the duty of said county board of election commissioner's to determine the qualification of all election officers before appointment. The county board of election commissioners shall have the power to remove all election officers who are thus disqualified wuder the provisions of this act, but no such removal shall be made within five days of the election; nor shall any such removal be made at any time with: out (ause, and the grounds therefor shall be reduced to writing by said board and made a part of its records. If a vacancy shall occur hy removal or otherwise, it shall be filled by the county board of election commissioners from the list already submitted, if any, from which the officer was selected, and in conformity to the provisions of this act. The county Board of election commissioners shall give due notice of the appointment of election officers to the sheriff of the county, who shall, before the day of the next ensuing election and within ten dars next after said appointment. give each officer of election written notice of his appointment. If there be two or more contending executive committees of the same party in the county, then that county ex. ecutive committee which is recognized by the State central committee, by written certificate of the chairman thereof, shall be recognized by the county board in making the ap. pointment of election officers.” Taking the averment of the petition as true, as we must upon demurrer, it is manifest that the defendants Bosworth and Miller, members of the county board of election commissioners, violated both the spirit and letter of the law, which they were appointed to administer, and which is mandatory to them. The statute expressly provides that they shall appoint the election officer's not later than the 20th of September, and that, when so appointed and qualified, they shall hold their places for one year; that they must be appointed from the lists

Denny, &c. v. Bosworth, &c.

Jesignated by the county executive committees of the two political parties having representation on the State and county boards of election commissioners, and must be equally divided between the two political parties, and possess the qualifications pointed out by the statutes; and, having once exercised the power of appointment, the county board have no right or power to remove them, except for some of the disqualifications pointed out in the act, and then they are required to reduce to writing the grounds on which they act, which must be made a part of the record of the board; and in no erent can they remove later than five days preceding the election. Section 15 of the amendment provides that: “If any member of either the State board or county boards of election commissioners, herein provided for, shall wilfully and knowingly violate any of the provisions of this act, or fail to ereute faithfully any of the duties imposed upon said boards under the provisions of this act, he shall be fined not less than $100.00 nor more than $1,000.00, and imprisoner! in the county jail not exceeding sixty days." It will be observed that the duties imposed upon the county board of election (ominissioners by the statute are ministerial, limited and specific. The cardinal idea running through the statute is tbat, to insure free and fair elections, each of the two political parties shall have equal representation to the officers who are designated to hold the election The petition undoubtedly states a good cause of action against the defendants, and the only question. therefore, to be considered is whether the courts have the power to compel the election commissioners to discharge the duties imposed upon them by law, and to restrain them from the commission of act: prohibited by law. Section 477 of the Civil Code defines the right of mandamus, as treated in that chapter, as: “An order of court of conpetent and or

Denny, &c. v. Bosworth, &c.

iginal jurisdiction commanding an executive or ministerial officer to perform an act or omit to do an act, the performance or omission of which is enjoined by law, and is granted on motion of the party aggrieved or the Common yealth when the public interest is affected.” This section of the Code covers fully the 'law applicable to the facts of this case. The defendants are ministerial officers; they have failed and refused to discharge the plain duty imposed upon them by law; and the plaintiffs, who are candidates and official rep. resentatives of the Republican party, have a just ground of complaint for the wilfull and illegal act charged to have been committed by the defendants; and we are of the opin. ion that the plaintiffs had a clear right to maintain this action, and that the circuit court had full and ample jurisdiction to have granted the relief sought. The acts of the defendants Miller and Bosworth were committed on the 30th day of October, 1901. The election was to have been held on the 5th of November following. Only five days intervened between the action of the board and the day of the election. The only eficient remedy provided by law to restrain the commission of the act complained of was a suit in equity for a' mandatory injunction as authorized by the Code. Numerous cases have been derided by this court sustaining this view. See Houston v. Steele, 98 Ky., 596 (17 R., 1119) (34 S. W., 6); Weaver v. Toney, 107 Ky., 419 (21 R., 1137) (54 S. W., 732, 50 L. R. A., 105); Berry v. McCullough, 94 Ky.. 247, 15 R., 117) 22 S. W., 78; Poyntz v. Shackelford, 107 Kv., 546 (21 R, 1329) (51S. W., 858). In the last case Judge Hazelrigg, in delivering the opinion of the court, said: "We think that when an officer in the rightful possession of his office is interfered with in the discharge of his official duties, and to the detriment of the public business, this form of action is proper. That was said in the recent case

Denny, &c. v. Bosworth, &c.

of Weaver v. Toney, supra." And numerous authorities are referred to in that case to sustain this proposition; among others, 5 Am. Eng. Dec. Eq., 549. In High, Extr. Rem., section 67, the question is discussed as follows: “We have already seen that the courts refuse to lend their extraor. dinary aid by mandamus to determine disputed question of title to office, or to compel the admission of a claimant in the first instance, when he has never been in possession of the office or csercise of its franchises. When, however, one has been in the actual and lawful possession and enjoyment of an office from which he has been wrongfully removed, a different case is presented. And mandamus is recognized as a peculiarly appropriate remedy to correct an improper amotun from a public office, and to restore to the full enjoyment of his franchise a person who has been wrongfully deprived of his office by the illegal appointment of another. The writ will lie to compel the res. toration, even though the person appointed in his stead be in possession de facto. So, under a statute providing that the writ of nandamus may issue to restore one to any office to which he is entitled, and from which he is unlawfully excluded, the writ will go to compel the restoration to a public school of a teacher who has been improperly removed therefrom, even though another incumbent has been appointed in his stead, when such teachers are entitled by statute to retain their position while they continue to be competent and faithful in the discharge of their duties." In 19 Am. & Eng. Ency. Law (20 Ed.), 737, it is said: "Where the law has limited the discretion of a board or officer, man. amus may issue to keep such board or officer within the limits of such discretion; and, if the facts are admitted or clearly proven, mandamus will issue to compel action according to the law, if the duty involved is purely ministe

Buckles y, Commonwealth.

rial, and not judicial or discretionary; and if the duty itself is imperative, specific and defined, mandamus will lie not only to compel general performance, but to compel performance in a particular and specific manner.” And to the same effect are the cases cited in City of Newport v. Berry, 80 Ky., 354 (+ R., 185) Lowe v. Com., 3 Mete., 241; Page v. Hardin, 8 B. Mon., 648; Ex parte Lennon, 166 U. S., 548, 17 Sup. Ct., 658, 41 L. Ed., 11.10.

For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.



Buckles V. Commonwealth.

113 795 122 504 e122 506



795 765





Held: 1. Under Cr, Code Prac., section 340, as amended by act of

March 4, 1880, providing that “a judgment of conviction shall be reversed for any error of law appearing on the record when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby," there can, in general, be no reversal for an error not excepted to, though apparent on the record, and to the defendant's prejudice; but this rule does not apply to instructions, for error in which there may be a reversal though there was no exception for the reason that it is the duty of the court, though not requested to do so, to give the whole law of the case in a

criminal prosecution. 2. It was error to instruct the jury that there could be no acquittal

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