Ball v. Cawood
67 S.W. 37
Ky.App. 1902.
Approx. 2 pages
23 Ky.L.Rptr. 2315
Court of Appeals of Kentucky.

March 14, 1902.
Appeal from circuit court, Harlan county.
"Not to be officially reported."
Contest by Leonard Ball of the election of Hiram Cawood as school trustee. Judgment for the contestee, and the contestant appeals. Reversed.

    Under a statute authorizing a widow having a child between 6 and 20 years of age, or a widow or spinster having a ward between those ages, to vote in an election for school trustees, a divorced woman was not entitled to vote in an election for school trustees where the judgment of divorce did not give her the custody of the children of the marriage, as the law casts upon the father the burden of their care and support.

    Where a widow went from one school district to another about 60 days before the time of election of trustees in the latter district, carrying in her arms a few articles of personal property to an old cabin in which she stayed during the day, returning in the evening to the home of her son, in the district from which she had come, she was not a bona fide resident of the district in which the election was held, and therefore not qualified to vote therein, especially as she never took with her into the district her only child within the school age.
*38 G. A. Eversole, for appellant.

    This is a contest over the election of school trustee in school district No. 39 in Harlan county, held October 6, 1900. By the poll book of that election, appellee, Cawood, received 15 votes, and appellant 14 votes. Appellant gave notice of contest, attacking the legality of the votes of Mary Sargent, Annie Noe, and Sarah Clem, all of whom voted for appellee. Proof was taken and trial was had before the board of contest for the county, who decided that the votes of Annie Noe and Sarah Clem were illegal, but that Mary Sargent was a legal voter. This finding reduced appellee's total to 13, and resulted in the board of contest awarding the office to appellant. From this finding and judgment of the county board appellee prosecuted an appeal to the circuit court, where it was decided by that tribunal that Mary Sargent was not a legal voter, but that Annie Noe and Sarah Clem were. This resulted in a tie, and the court decreed that no election had been had between the two persons, and dismissed the proceeding. >From that judgment this appeal is prosecuted.
    The objection to the vote of Mary Sargent is that she was not a resident of the district, although a widow with children within the school age. The objection to the other two is the same; that is, that they do not come within the meaning of the statute as to widows with children within the school age. We are of opinion that the proof clearly shows that Mary Sargent was a resident of school district No. 15 with her grown son, and came over the line into district No. 39 about 63 days before the election for the express purpose of voting for trustee, and that she brought some few things with her,--carried them in her arms,--and occupied for a small part of the time an old cabin that is in district No. 39. The proof shows that she would stay there during the day, and in the afternoon go toward her son's, where she had lived. There is no proof that she had her son, who was about 9 years old, with her, or that he ever lived in the district. We are of the opinion that the facts show that Mary Sargent was not a bona fide resident of district No. 39, but was imported into the district for the sole purpose of voting at the school election, and not with a purpose or intention of becoming a resident therein.
    The admitted facts as to Sarah Clem are that she was the divorced wife of H. C. Clem, and had living with her several children within the school age. Clem himself lived in the district, and voted at the election. The judgment of divorce is filed, but the custody of the children was not determined by the decree. The law casts the burden of maintenance and care of the children primarily on the father, and he is responsible for their support. This obligation, or status of the children, was not changed by the decree of divorce; and, so far as this record shows, the children are yet under the control of the father. So we hold that Sarah Clem does not, on the facts shown, come within the purview of the statute prescribing the qualification of legal voters in school elections. She was not, therefore, a legal voter.
    The facts as to Annie Noe are very similar to those as to Sarah Clem, except it is not shown that William Noe, her divorced husband, is living, though presumed to be. Nor is it shown that he resides in this state. In the absence of proof of these facts, we decline to determine whether Annie Noe is a voter or not.
    The two illegal votes deducted from appellee's total reduce his number to 13, to 14 cast for appellant. This results in the election of appellant, Ball, as determined by the county board of contest.
    For the reasons given, the judgment of the circuit court is reversed, and cause remanded for judgment awarding to appellant, Leonard Ball, the office of trustee of school district No. 39 in Harlan county, and for further proceedings consistent herewith.
Ky.App. 1902.
67 S.W. 37, 23 Ky.L.Rptr. 2315