13. Elections 51, 186(3), 253-Election not void for failure of clerk or officer to fulfill requirement. Failure of clerk to write his name upon ballot or remove secondary stub from ballot, or of election officers to take oath of office or make return in proper form, does not render election void. 14. Elections 293(1)-Irregular omissions of clerk or election officers evidential of fraud. Failure of clerk to write his name upon ballot or remove secondary stub from ballot, or of election officers to take oath of office or make return in proper form, may be received as evidence of fraud in election. 21. Elections 237-Contestants not elected for failure to show they received majority of legal votes. Contestants not elected, where neither showed with reasonable certainty that he had received majority of legal votes. Appeals from Circuit Court, Jefferson · County, Chancery Branch, First and Second Divisions. Proceedings by E. Louis Marilla and others against Mrs. Ray. G. Ratterman and others, by Mrs. W. Basye Howell and others against Dan Carrell and others, and by Lee Curry, Sr., and others against Clay McCandless and others, to contest an election. From a judgment that none of contestants 15. Elections 298(1)—Validity upheld, if were elected, but setting aside apparent possible. Validity of an election will be upheld by courts, if reasonable or possible, and it will not set it aside for light and trivial causes. 16. Elections 229-Result determined by legal votes cast, if either candidate can show he received a majority. Where there has been fraud, intimidation, bribery, illegalities, or irregularities in an election and results of those influences can be eliminated, so as to clearly ascertain result effected by legal voters, court will sustain election, but if court cannot with reasonable certainty determine who has received majority of legal votes cast, election should be set aside. 17. Elections 229-Inability to determine legal from illegal votes in precinct held to eliminate entire precinct. In election contest based on charge of illegal votes, illegal methods of voting and illegal conduct of election officials, impossibility in some precincts to determine which were legal and which were illegal votes, held to eliminate whole precinct. 18. Elections 295 (1)—Evidence sufficient to show illegal voting and conduct of election officials in number of precincts. In election contest, evidence held to show such illegal voting and illegal conduct of election officials as to render it impossible to de termine legal votes. 19. Elections 229-Precinct is unit of general election, and may be disregarded and cast out on sufficient showing of illegality. Where determination of ballot votes is in question, a precinct is unit of general election, and may be disregarded and cast out when it iş impossible to determine which are legal and illegal votes and their numbers, and for whom cast. election of contestees Stege, Horn, Stone, Kaufman, and Meyers, and that the offices were vacant, all of the contestants appeal. Affirmed as to Carrell, Stege, Horn, Stone, Kaufman and Meyers, and reversed and remanded as to all the others, with directions. Mark Beauchamp, Lawrence Mackey, Kendrick R. Lewis, E. P. Humphrey, W. T. McNally, Lawrence Grauman, John B. Brachey, Neville Miller, Ben H. Sachs, Maurice Horvitz, Walter P. Lincoln, Muir Weissinger, and Ben F. Ewing, all of Louisville, and Gardner K. Byers, of Frankfort, for ap pellants. Richard Priest Dietzman, Joseph E. Conkling, R. Ruthenburg, Wm. A. Earl, R. F. Peak, Charles Reisch, Fred Starck, Grover G. Sales, J. P. Miller, W. C. Goodwyn, and Frank A. Ropke, all of Louisville, for appellees. HURT, Special Judge. These three appeals were taken upon the same record. The cases were tried and determined together in the circuit court, and the appeals from the judgments of that court in the three cases were heard and tried together in this court. The causes of action are the same in each case, the defenses are the same, and the evi dence is the same in each case. They grow out of the contests for the offices of park commissioners, aldermen, and councilmen, in the city of Louisville, at the election held in November, 1923. At that election, the following named appellants were the nominees of the Democratic party, for the offices of councilmen, for the following wards, respectively: For the first ward, E. Louis Marilla and Henry W. Kraut; for the second ward, Harry H. Martin and Frank E. Akers; for the third ward, Edward Buck 20. Elections 292-Official returns presum- ner and Edward Wunderlin; for the fourth ed correct. In election contest, official returns are presumed correct, and to overturn them contestant must show with reasonable certainty that he was elected. ward, William G. Willen and W. H. Dennes; for the fifth ward, Maurice Horvitz and Frank F. Fleming; for the sixth ward, Ben F. Ewing and John B. Brachey; for the seventh ward, John Hennessey and Peter Muel (273 S.W.) ler; for the eighth ward, Harry E. Myers | the number of votes, according to the ballots, and E. L. Wright; for the ninth ward, Len received by each of the candidates. Upon Guernsey and Geo. W. Clark, Sr.; for the this recount, each of the Republican canditenth ward, James M. Donahue and Al Steig- dates received a considerable number of er; for the eleventh ward, E. G. Harrison votes, less than they were shown by the ofand William W. Schackleiter; and for the ficial returns to have received, which was twelfth ward, George Isaac Jones and Karl caused by the election officers, either incorL. Badger. The following appellees were the rectly counting the vote, or by failing altonominees of the Republican party for the gether to count it, and certifying to returns, offices of councilmen for the following wards which gave to the Republican candidates of the city, respectively: For the first ward, from 639 to 383 more votes than they receivMrs. Ray G. Ratterman and Edward H. ed in these precincts, and to the Democratic 'Meyers; second ward, Edward G. Fernow and candidates from 22 to 249 less votes, than N. M. Sanders; third ward, William G. Lutz they received. Adopting the recount as a and Henry V. Denzer; fourth ward, William correct tabulation of the votes received by J. Watson and Hubbard R. Petty; fifth ward, each candidate in the 130 precincts recountJacob L. Isaacs and Chas. H. Lindley; sixth ed, and deducting from the votes shown by ward, Cullis A. Carder and Robert H. Lau- the official returns to have been received by der; seventh ward, Chas. F. Baird and Don each Republican candidate the number lost Warren; eighth ward, Chester H. Koch and by him upon the recount, and adding to the Chas. I. Jones; ninth ward, J. E. Payton vote shown by the official returns to have and William J. Fehler; tenth ward, Fred. been received by each Democratic candidate Ohmann and J. L. Awtry; eleventh ward, the number of votes gained by him upon the Mrs. Henrietta Sloan and J. Fred Heatken- recount, still the contestees each received meier, Sr.; and for the twelfth ward, J. E. majorities over the contestants in each of Sikking and William J. Brown. the races and for each office, but reduced in amount from the official returns. The appellants, Mrs. W. Basye Howell, R. Ray Head, and I. Sydney Jenkins, were the nominees of the Democratic party for the offices of park commissioners, while the appellees, Dan Carrell, John E. Heyburn, and Alex E. Johnson were the nominees of the Republican party for the same offices. For alderman, the appellants, Lee Curry, Sr., B. J. Campbell, Jr., Henry J. Rueff, McKay Reed, Robert B. McDowell, W. P. Brandenburg, Benjamin H. Sachs, Mark Beauchamp, S. J. Brownstein, Ed Korb, Carl A. Jackman, and John F. Singhiser were the nominees of the Democratic party, while the appellees. Clay McCandless, Robert L. Hawes, Harry A. Volz, Geo. W. Stege, Ralph S. Towle, Z. T. Miller, E. D. Morton, Sam H. Stone, Henry Kaufman, Edward Schoppenhorst, Ernest F. Horn, and Arthur A. Will were the nominees of the Republican party. The official returns of the election showed the election of each of the Republican candidates for park commissioners, aldermen, and councilmen. In due time, the Democratic candidates filed actions against their opponents for the purpose of contesting their elections to the respective city offices, and prayed in the alternative to either declare them elected to the respective offices for which they had been candidates instead of their Republican opponents, or in the event that could not be done, to declare and adjudge that the offices were vacant, and that no one had been elected thereto. In the course of proceedings, a recount was made of the votes cast in 130 precincts of the city. This recount was made by a commissioner of the court, who caused the ballot boxes to be opened, and made and reported to the court a count of all the ballots found in the ballot boxes of these precincts, and a showing of The appellants, who will hereinafter be called the contestants, charge that the officers of the city government, and those desiring and expecting offices, in the event the appellees, who will hereinafter be called the contestees, should be elected to the offices for which they were candidates, and other persons, who were partisans of theirs, previous to the registration of the voters for the election, entered into a conspiracy to procure the election of the contestees by force, fraud, intimidation, illegal voting, and whatever unlawful means might be found necessary to effect that result, and in furtherance of that purpose procured, through their agents, the registration of many perscns, who were not legal voters, and finally consummated the purpose of the conspiracy, on the day of the election, through the officers of the election and such voters, as would participate in the unlawful procedure, some of whom were illegal voters, and some of whom were lawfully entitled to vote, but who cast their votes and were permitted to do so in an illegal manner; that said illegal voters and voting were aided, assisted, and instigated by various members of the city government, Republican organization, and employees of the city government and the sheriff, who was the chairman of the board of election commissioners; that the election officers, in carrying out the purpose of the conspiracy, made false returns of the results of the voting in the precincts of which they were officers; that they did not observe the requirements of the law, with respect to the preparation, issuing, receiving, and counting the ballots; that they, with the assent of the voters, who were not illiterate, blind, nor physically disabled, showed such voters how to stencil their ballots; that they permitted many voters to stencil their ballots openly and "upon the table"; that they stenciled the ballots of many voters, who were neither blind nor physically disabled; that they accompanied many voters into the booths and assisted them in stenciling their ballots, or else stenciled them for the voters; they permitted voters to expose their ballots, and then received and counted them, as valid; they permitted voters to vote more than once; they permitted persons who were not voters to vote, and persons to vote, who were impersonating legal and registered voters; they assisted others in voting, who had not been sworn that they were illiterates; that they indicated to other voters, by making a cross mark, dot, dash, or line upon their ballots with a pen or pencil, when such voters were not illiterate and had not taken an oath, that they were such; that they indicated to many voters "by word of mouth or otherwise" the party affiliations of the candidates, and that all such votes were illegal and void, but were received, certified, and counted, as having been received by contestees. The contestants also charged that many Democratic officers of the election and challengers were arrested without legal cause and placed in jail; others of them were threatened with arrest and violence and thereby intimidated from properly performing their duties, and voters, who would otherwise have voted for contestants, were intimidated by these arrests and threats, and thereby caused to refrain from voting; that the Republican officers of the election permitted the workers for contestees, especially the Republican precinct "captains," to remain within the polling places and to go in and 'out at their pleasure and to indulge in unlawfully instructing the voters, within the polls, how to vote for contestees; that the Republican officers of the election systematically gave out information from the polls to the workers for contestees, on the outside, as to the condition of the balloting and whether certain voters had voted, and thus made themselves partisans of the contestees, rather than impartial election officers; that such officers falsely certified that the contestees had received more votes at the various precincts than they had actually received, and that contestants had received fewer votes than they actually received, and thus by the foregoing illegal and fraudulent actions of the Republican election officers, and those acting with them, procured an apparent majority to be returned for contestees, when in fact the majority was in favor of contestants, and they were elected in place of the contestees. All of the foregoing allegations were denied by contestees in their answer, and in ed that the contestants did not file their "post election expense statements" with the chairman of the election commission within the time prescribed by law, and were therefore ineligible to hold the offices sued for; and also that in a great number of precincts the Democratic election officers had made false and incorrect returns, which showed that contestants had received more votes than they actually had, and that contestees had received fewer votes than was the fact, and also asked for a recount of the ballots in certain precincts. The contestants had also prayed for a recount of the ballots. Before answering, however, the contestees made motions that the court should require the contestants to make the allegations of their petitions definite and certain by setting out the names of the illegal voters and votes, who were charged as having voted for contestees and the contestees with having received. These motions were sustained, and the contestants amended their petitions by setting out the names of 144 persons, who had voted illegally for the contestees. This number, if proven, was far insufficient to overcome the majorities which the contestees had received, as appear from the official returns, as modified by the recount in the 130 precincts. The affirmative allegations of the amended petitions were controverted by orders upon the record. The circuit court adjudged that none of the contestants were elected, but set aside the apparent election of the contestees, Stege, Horn, Stone, Kaufman, and Meyers, adjudging that neither of them were elected, because of a failure to receive a majority of the votes cast at the election, and that the offices to which they had received certificates were vacant. From this judgment each of the contestants has appealed, but the contestees, who were adjudged to have failed of election, have not appealed. [1] Several large volumes of evidence are in the record, and we have given it a careful consideration. The charge of a conspiracy in behalf of contestees to cause persons not entitled to vote to be registered as legal voters there is no evidence to support. One Mulligan, a deputy sheriff, appears to have brutally arrested and assaulted a crippled man, who was a Democratic challenger, at the registration, and put him in jail for challenging the registration of certain voters, but this unlawful act occurred away from the polls, and did not in any way effect the registration. [2] Without going into detail, there does not appear to be any evidence, or any from which it could be concluded, to support the accusation that the members of the city administration, including the mayor, members of the board of safety, and the two Republican members of the board of election com (273 S.W.) secure the election of the contestees by any | er requested or not would proceed to show unlawful means. There is no evidence that him, either by pointing a finger to the place the police officers interfered improperly with where the ballot should be stenciled to vote the election, except in two isolated instances, for the contestees, or by making a cross in one of which a Democratic election officer mark, dot, or dash upon the ballot, or else was arrested for refusing to put in the ballot by going into the booth with the voter, or box a ballot, which had been unlawfully else stencil the ballot for him "upon the stenciled by the clerk for a voter; and in the table," or else direct the voter to stencil the other instance a policeman ordered a Dem- ballot publicly, and frequently, when the ocratic challenger out of the polling place, voter returned with the ballot, to open and but this was evidently done by mistake, as examine it before putting it into the box, he directly thereafter retracted his action, and in most instances, when a voter reand permitted the challenger to return to his quested assistance, to give it without ad. duties. A subordinate in one of the city ministering an oath to him to the effect that government departments, while acting as a he was illiterate, blind, or physically dischallenger, participated in unlawfully sten- abled. ciling ballots for voters "on the table," and another, without lawful reason, caused a warrant to be issued and a Democratic election officer arrested and taken out of the pools upon a charge of obstructing the election. These isolated instances of misconduct, of these subordinates, do not sustain a charge of conspiracy between the members of the city administration, or between them and others, but rather indicates an exception and not the rule. Several Republican election officers were arrested during the day of election, and several Democratic election officers were also arrested. but these arrests, except in the instance above cited, appear to have been made by deputy sheriffs and constables, and in most instances by virtue of warrants, issued by justices of the peace. The charges against these parties were all dismissed by officers representing the commonwealth, and the merits of the accusations were never developed. The most unwarranted arrests were those of the constables, who served warrants upon Republican election of ficers, and the arrests of these constables and their incarceration seems to smack of a purpose to intimidate. The numerous arrests, however, do not appear to have affected the result of the election, except in a few instances, some of which will hereafter be adverted to. Frequently when a Democratic challenger or officer insisted upon the voter showing by his oath, that he was entitled to assistance, as being of one of the classes to which assistance may be rendered, the oath administered was not that he could not read, but was that he did not know or understand the ballot sufficiently to vote it intelligently, or some other form of words, which would make a pretense, that the voter had been sworn. Acting under the direction of the chairman of the Republican organization, the Republican officers of election, whenever 50 ballots had been voted, at which time the names of the candidates changed upon the ballot, sent information out of the booth of the change to the workers for contestees, which, if not in fact, was a violation of the spirit of the law with regard to the secrecy of the ballot. The uniform failure of the officers of election to make a correct count and certification of the votes, and in nearly every precinct which was recounted, the mistake resulted in certifying a greater number received by contestees than they received, and a less number for contestants than they received, is significant. dence chiefly relates to precincts, which from accident, design, or necessity are so laid off that there are no Democrats, or very few, in them, and in these precincts the election officers, in most instances, were all Republicans. The evi [3] It is apparent, however, from all the evidence, which relates to the conduct of the election in more than 60 precincts, that in [4] In some of these precincts where a every one of these 'precincts except one, a large number of illegal votes were cast, similar plan of illegal voting was carried on. from the rendering of unlawful assistance There is a similarity in the conduct of the to the voters, it is said that the officers of election officers, representing the Republi-election agreed upon this course, or the cans, in the manner in which they received | Democratic challenger agreed to have the the votes, that very strongly tends to prove votes cast in that manner, but it is clear the existence of an agreed concert of action that no agreement among the officers of the among the election officers and precinct election can render valid an invalid vote, workers for contestees to procure all the as no precinct officers or party representavotes possible for the contestees, either in a tives would have authority to set aside the legal or illegal manner. This conclusion is Constitution and laws of the country as all borne out by the fact, that in nearly all of the people have an interest in the purity and these precincts, one of the Republican officers validity of the popular elections. At the of election or the challenger would imme- time of the election in controversy, a statute diately inquire if the voter understood or known as the "Nonemblem Law," enacted knew how to vote the city ballot, and wheth- by the 1922 General Assembly (Acts 1922, c. 137), and relating to elections in cities of the first class, was in force, but this statute made no provision for the voting by illiterate, blind, or physically disabled persons, and did not directly repeal section 1475, Ky. Stats., relating to the manner of voting of such persons, and did not by implication modify any provision of that statute, except probably in one particular. The "Nonemblem Law" has now been repealed, and in view of the conclusions at which we have arrived in this case, it is neither necessary nor profitable to make any construction of that statute, or to determine its constitutionality, and in determining the votes, which should be deducted from the polls of the various candidates, we have excluded none, who would be legal voters under the provisions of section 1475, Ky. Stats. There are certain principles relating to elections and voting at elections, which are too well established for controversy. Among these are the following, viz.: the election officers to take the oath of office, or to make a return in proper form, does not render the election void, but these omissions may be received as evidence tending to prove some fraud in the election which might vitiate it. [15, 16] (9) If it can reasonably be done, a court should uphold the validity of an election, and not set it aside for light and trivial causes, and where there has been fraud, intimidations, bribery, illegalities, and irregularities, and the results of such sinister influences can be eliminated, and the result clearly ascertained between the legal voters, it is the duty of the court to do so, and to sustain the election, but, if the fraud, intimidation, bribery, irregularities, and illegalities are such, that the court cannot with reasonable certainty determine who has received a majority of the legal votes, the election should be set aside, and a candidate cannot be declared a victor, unless he can be shown to have received a majority or plurality of the legal [5, 6] (1) The essential requirements of a votes cast at the election. The foregoing valid election are that it shall be free and doctrines are supported by the following auequal, and that the ballot shall be secret, thorities, viz.: Felts v. Edwards, 181 Ky. and the provisions of the statutes, which 299, 204 S. W. 145; Varney v. Justice, 86 Ky. are necessary to effect those ends are man- 596, 6 S. W. 457, 9 Ky. Law Rep. 743; Muncy datory, but mere irregularities of election | v. Duff, 194 Ky. 303, 239 S. W. 49; Snowden officers and voters, which do not affect the v. Flanery, 159 Ky. 568, 167 S. W. 893; Potter merits of the case, and do not affect the fairness and equality of the election nor the secrecy of the ballot, will not vitiate the election nor affect the validity of a vote. [7] (2) Where an election officer or other person goes into the booth with a voter and assists him in stenciling the ballot, the vote should be rejected, whether or not the voter is an illiterate. [8] (3) To mark the ballot of a voter with a pen or pencil, or to point out on the ballot, where to stencil it, without the voter having been sworn to the effect, that he cannot read, or is blind or physically disabled, the ballot should be rejected, although the voter may then go into the booth and stencil it. [9] (4) If an officer of the election or other person stencils the ballot of a voter, it should be rejected, unless the voter is blind or physically disabled, and has taken an oath to that effect. [10] (5) A ballot, which a voter stencils openly, as is said "upon the table," should be rejected, although the voter may have taken the illiterate oath. [11] (6) If a voter is blind or physically disabled, so that he cannot stencil his ballot, and having taken an oath to that effect, then his ballot may be lawfully stenciled for him, in the presence of those present. [12] (7) Voluntary exposure by a voter of his ballot, so that secrecy is destroyed, the vote is invalid and should not be received. [13, 14] (8) The failure of the clerk to write his name upon the ballot, to remove the sec v. Campbell, 159 Ky. 329, 167 S. W. 404; Orr v. Kevil, 124 Ky. 720, 100 S. W. 314, 30 Ky. Law Rep. 761; Lunsford v. Culton, 23 S. W. 946, 15 Ky. Law Rep. 504; Montgomery v. Chelf, 118 Ky. 772, 82 S. W. 388, 26 Ky. Law Rep. 638; Anderson v. Likens, 104 Ky. 699, 47 S. W. 867, 20 Ky. Law Rep. 1001; Whitney v. Skinner, 194 Ky. 804, 241 S. W. 350; Combs v. Combs, 97 S. W. 1127, 30 Ky. Law Rep. 161; Stewart v. Rose, 72 S. W. 271, 24 Ky. Law Rep. 1759; Wilkins v. Duffy, 114 Ky. 111, 70 S. W. 668, 24 Ky. Law Rep. 913; Scholl v. Bell, 125 Ky. 750, 102 S. W. 248, 31 Ky. Law Rep. 335; Harrison v. Stroud, 129 Ky. 193, 110 S. W. 828, 33 Ky. Law Rep. 653, 16 Ann. Cas. 1050; Allen v. Griffith, 160 Ky. 528, 169 S. W. 1003; Johnson v. Little, 176 Ky. 509, 196 S. W. 156, Ann. Cas. 1918A, 70; Francis v. Sturgill, 163 Ky. 650, 174 S. W. 753; Schoonmaker v. Dunlap, 180 Ky. 835, 203 S. W. 709; Hall v. Martin, 183 Ky. 120, 208 S. W. 417; Pace v. Reed, 138 Ky. 605, 128 S. W. 891; section 1475, Ky. Stat. [17] In accordance with the above doc trines, wherever the evidence has shown an illegal vote, and for whom it was cast and counted, the vote has been eliminated and subtracted from the votes received by the recipient of it. This process has been followed in precincts which have not been entirely thrown out and disregarded in the tabulation of votes, but the election, as held in 31 precincts, was so permeated with illegal voting, irregularities of every kind touching an election, unwarranted arrests of election of |