Kansas City journal. [volume] (Kansas City, Mo.) 1897-1928, 1899-12-09
KENTUCKY ELECTION COMMISSION
DECIDES IN HIS FAVOR.
CAN NOT GO BEHIND RETURNS
PLAINLY SAY THAT GOEBEL SHOULD
HAVE THE OFFICE
Predict That n "TribunaI of COmpe-
tent Jurisdiction, VIII Award
1t to Him-Minority Opinion
in Favor of Seating
Mr.. GOebe1.

FRANKFORT, KY, Dec. S.-The state
board of elections tonight gave out their
official findings that w. S. Taylor. for gov
ernor. and the rest of the Republican ticket
have been elected on the face of the re-
turns. Commissioners Ellis and Pryor
signed the majority report, in which they
held that, as board of canvassers, they
have no right to go behind the returns
of the county boards, that their duties
are purely ministerial as canvassers, that
the face of the returns. as received by
them from the counties, show the election
of the Republican state ticket: and certifi-
Gates of election were ordered issued to
each candidate thereon. Commissioner
Poyntz presents minority report which
ne closes by saying:
"I am unwilling to certify fraud and to
turn Kentucky over to the control of the
bayonet. Calling gun and fraudulent issue
ballots.
Extensive preparations are being made to
inaugurate Taylor next Tuesday.
The majority opinion of the election COM
mission is as follows:
Occupying q place We did not seek We would glad
Iy escape the discharge of the delicate and respon.
sibie duties which At the present moment confront
but having voluntarily assumed the responsi-
bities of important q trust. our duty is plain
We at liberty to depart from elementar.
principles or TO allow partisan zeal force us to
any conclusion which is not approved By our tudg
Eent and sanctioned by law.
In reaching a conclusion in this case We are COM
pelied TO cOnstrue, for the first time the statute
under which act. II has not received judicial
construction or Interpretation at the hands OF any
court. This of ITSELF adds to our embarrassment
and. II possible, to the magnitude of the disagree
able task before
The capital question the threshold is. what are
the powers and Jurisdiction of the state board OF
election commissioners. sitting canvassins
board which is the capacity in which it now acts
Are powers purely ministerial, they botf
ministerial and judicial. May this board, under the
law, acting a board of canvassers, go thu
bottom of any and all Irregularities misconduct ant
frauds. IL any, which may have been committed tr
the recent election, and. on the whole case, deter
mine whether or not what now appears on the fae'
nf the returns is true false? May this body in
qure into the matter suggested by learned counse
to whether not the election in the city o
Louisville was free and equal on account. as IT Il
argued, Of unlawful interference OF the militia
May we institute an investigation and determine
whether or not the election in any all of til,
counties OF the state was or was not held by
official ballot, as required by law, and whether O.
not it was that account for any reason illegally
conducted and therefore void! Does the power re
side in this state board TO consider whether or no
United States marshals present at polinl
places throughout the state. with n view Of intim
the questions underlying the whole subject.
There Is. however one material question involved
in this proceeding 1t Is this II find under tn,
law. that this board, sitting canvassng board Il
clothed with Judicial powers, the question is.
the papers and documents rendered for eonsdera
tion competent evidence for any purpose or ar,
they merely ex parte statements. which, under thu
rules OF evidence are nadmissable to establish facts
Are the papers purDorting to be amended certificate
from Knox. johnson. Magonn and Pike counties ant
the yoluminous record from the city of Louisville
ruoh official documents as import absolute verify
therefore, evidence r hey xfr
oicial and parte and Incompetent as evidence IL
any court or before any tribunal where the rules
evidence obtain? In considering the question sub
mtted, We must be guided by the rules of law. w
cannot depart from the beaten path, for it is tn
safe path.
We consider first the question to whether or no
the powers conferred on us as canvass,ng board au
thorize US 10 exercise judicial powers An appea
to the provisions OF the statute ought to furnish
ready answer to this question. Whatever power
and jurisdiction 1t confers we may lawfully e1er
conferred we may not lawfully assume to exercise
We did not make the law. FIX our authority mar
the limit Of our jurisdiction. If the law omits I
ciothe this board, sitting a canvassing board wit
Jurisdiction and power to look into and revise eec
tion returns, as certified by the proper authorize
from the various counties Of the state. canno
write into the law such authority. We have n
right to add to or subtract from the plain terms
the statutes
After quoting extracts from the new elec
tion law, defining the powers of the board
the opinion reads:
1t is evident, from the law that the state board
contest is clothed with and jurisdiction wh.c
It does not possess and cannot assume to exerci:
when sitting. as at present. in 4 mere minister's
capacity.
As board Of contest 1t possesses the powers ar
functions Of court 1t set aside the origin
returns. overthrow prima facie case, and when al
thorized by the law and the evidence cast out pr
eincts or whole counties and award the certificate
the candidate other than the one having majori
upon the face Of the returns. But these are powe
which the board can only exercise when sitting as
We must assume that the legislature by the e:
actnent Of section l2 OF the law which provides for
board OF contest. intended only limit the pow
OF this body, when sitting board OF canvasser
but 10 confer all the judicial power and author1
which the board could lawfully exercise alone upt
the board Of contest. To hold otherwise would be
destroy the entire force OF the section creating
board Of contest and comforting on 1t responsible
ties and large jurisdiction.
This law has carefully guarded the rights of q
candidates; while they may not contest their righ
to Office before the canvassing board the, u
euestionably have such right before the board
contest. The remedy is plain and speedy. Eve
candidate, who is defeated the face of the T
turns, may. before the tribunal provided by la
test the question of his right TO the ofice with
adversary and nothing that the oanvassing boa
may do or can do will in any degree or in any ma
ner whatever affect his right.
Such is our construction OF the present law a
we are fortified in the correctness OF this constru
tion. not only by the Interpretation which the cou
OF appeals OF this state has placed kindred sta
ntes. but by all the law of the land far as
have been able 10 examine It
This board. under the present law, canvas
ing board, possesses other or greater powers tn
those conferred on the governor, attorney genei
and secretary OF state
To emphasize the correctness of this co
clusion the writers of the majority opinic
quote largely from the statute and nur
erous authorities and then proceed as fo
lows:
But the question to whether or not the pow,
and Jurisdiction of this board as at present orga
lied are purely ministerial both ministerial a
sudicial is not OF supreme importance in this pi
eeedlns when We come 10 consider the papers a
documents offered as testimony and upon which
requested TO act
These papers clearly inconsistent testimo
for any purpose and II would be held SO We app
hend, not only in all courts. but It would be
contest
II this board clothed with unlimited judi dic
powers 1t would not consider the ex parte stateme
and extra and Official statements here submitted
could not do without violating the most famil
rules OF evidence.
Every citizen is entitled to his day in court