delivered the opinion of the court :
Hinton filed apetition against Leeman, alleging, in substance, that on the 14th day of September, 1863, three persons therein named, composing a legal board for trying a contested election case between James Spence, M. King, and the defendant, Lee-man, for the office of county court clerk of McCracken county, decided that said Leeman was not entitled to said office, and that the same was and is vacant; that on the same day, the county court made an order declaring said office vacant, and appointing the plaintiff, Hinton, to fill it; that the plaintiff, after duly qualifying, entered upon the discharge of his duties, but was forcibly ejected therefrom by the defendant, with the aid of the Provost Marshal of Paducah and the military power of the United States; and that the defendant yet has possession of said office, holding it as an usurper; and praying that the plaintiff may be restored thereto, and for all proper relief.
Leeman answered, alleging, in substance, that at said election, he, being constitutionally eligible, was elected by the loyal votes of McCracken county, and that on the 7th September, 1863, he duly qualified by giving bond, &c., and has ever since had charge of the office; admitting the allegations of the petition concerning the decision of the board for trying contested elections, and the orders of the county court; but denying that either said board or said court had authority so to act; and averring that their proceedings were illegal and void, and gave to the plaintiff no right to the office.
*39The law and facts were submitted to the court, and a judgment rendered for the plaintiff, to reverse which the defendant appeals.
The certificate of the board for trying contested elections, referred to in the petition, is as follows :
“ We adjudge that J. K. Leeman is not entitled to the office of county court clerk of McCracken county :
“ 1st. Because the election held on the Sd day of August, 1863, was not held in accordance with the laws and constitution of the-State of Kentucky,
“2d. Because the said election, in each of the precincts, was held under the supervision of military officers of the United States army, and under military orders and oaths prescribed by Generals Hurlbut, Asboth, and Colonel Martin.
“ 3d. Because a majority of the voters of said county were intimidated and overawed by a squad of armed Federal soldiers at each of the voting places in said county, requiring military oaths of the voters unknown to the constitution and laws of Kentucky.
“ 4th. Because said election was held, conducted, and controlled by the military authorities of the United States, and not by the civil officers under the constitution and laws of the State; and we therefore adjudge that J. K. Leeman received no votes which were legal and constitutional. We therefore declare that the office of county court clerk of McCracken county is vaeant. September 14, 1863.
“ G. A. Flournoy, ■
“ Wm. W. Herndon,
“ C. Bell,
“ County Board for Contesting Elections.”
On the 14th'September, 1863, the presiding judge of the county court made the following order :
“ It is therefore ordered by the court, in accordance with said judgment of the county contesting board, above recorded, that the office of clerk of the McCracken county court is vacant; and it is further ordered by the court, that, on to-morrow morning, 10 o’clock, A. M., this court will proceed to fill said office by appointment of a county court clerk.”
*40This was followed by an order appointing Hinton to fill the vacancy until the next regular election.
It is contended by Leeman’s counsel, that the board for trying contested elections had no authority, under the circumstances and for the reasons mentioned in their certificate, to declare the office vacant; and such is our opinion.
The constitution of the State declares that “ all elections shall be free and equal.” {Art. 13, sec. 7.) But the authority to decide as to the freedom and equality of elections has not been conferred by the Legislature upon the board for trying contested elections, but forms a part of the general jurisdiction of the circuit courts. The statute from which the board derives its authority is as follows :
“Where it shall appear that the candidates receiving the highest number of votes given have received an equal number, the right to the office shall be determined by lot, under the direction of the board. Where the person returned is found not to have been legally qualified to receive the office at the time of his election, a new .election shall be ordered. Where another than the person returned shall be found to have received the highest number of legal votes given, such other shall be adjudged to be the person elected and entitled to the office.” (R. S., chap. 32, art. 7, sec. 8.)
The board for trying contested elections has no authority except, first, to determine whether or not the votes given have been correctly summed up ; secondly, to decide as to the legality of the votes given ; thirdly, to decide by lot who is entitled to the office when there is a tie between the candidates receiving the highest number of legal votes given ; and fourthly, to decide whether or not the candidate receiving the highest number of legal votes given is qualified to receive the office, and if he is not, to order a new election.
The board, therefore, had no authority even to order a new election, for the reasons stated in their certificate. They, however, did not order a new election, but merely declared the office vacant, which they have no authority to do in any case. It is clear, therefore, that the decision of the board cannot give *41validity to- the orders of the county court, declaring the office vacant and appointing Hinton to fill the vacancy.
But if the office was vacant for any other reason, the county court had authority to fill it (R. S., chap. 32, art. 6, sec. 5); and the fact that its action was avowedly based upon the unauthorized certificate of the board for trying contested elections, cannot affect the validity of its appointment.
Leeman contends that he was elected on the 3d August, 1863, and that he qualified by giving bond, &c., on the 7th of September, 1863, and consequently that there was no vacancy when Hinton was appointed. But Leeman has failed either to aver or to prove that he was elected, and has failed to prove that he qualified by giving bond, &c.
His only averment concerning his election is, that “ he was elected by the loyal votes of McCracken county clerk of the county court, as is evidenced by the certificate of properly constituted examining board herewith filed as part hereof, marked A.” The laws of the State do not inform us what is the meaning of the phrase “ loyal votes but, as ordinarily used, its meaning is believed to be quite different from that of the phrases “ legal voters,” “ qualified voters.”
The constitution declares that “ every free white male citizen of the age of twenty-one years, who has resided in the State two years, or in the county, town, or city, in which he offers to vote, one year next preceding the election, shall be a voter.” (Art. 2, sec. 8.) The Revised Statutes declare that the word election, when used in any statute, “ shall be deemed to mean an election by the qualified voters” (chap. 32, art. 1, sec. 1); and that the board for trying contested elections shall give the certificate to “ the person receiving the highest number of legal votes given.” (Chap. 32, art. 7-, sec. 8.)
By the act of March 11, 1862, entitled “An act to amend chapter 15 of the Revised Statutes, entitled ‘ Citizens, Expatriation, and Aliens,” the Legislature took, or attempted to take, the right of suffrage from “ any citizen of this State who shall enter into the service of the so-called Confederate States, in either a civil or military capacity, or into the service of the so-called Provisional Government of Kentucky, in either a *42military or civil capacity, or who, having' heretofore entered such service of either the Confederate States or Provisional Government, shall continue in such service after this act takes effect, or who shall take up or continue in arms against the military forces of the United States, or State of Kentucky, or shall give voluntary aid and assistance to those in arms against said forces.” Whether or not that act is constitutional we need not, and do not, decide. If it is constitutional, yet it is clear that a man may be “ loyal,” according to the ordinary acceptation of that word, without having a right to vote, and that a man may have a right to vote without being “ loyal.” Leeman’s averment, therefore, that he was elected by the “loyal votes” of McCracken county, is irrelevant, and lays no foundation for proof that he was duly elected.
But upon this point hisproof is as defective as his pleadings. The clerk has sent us, as part of the record, what purports to be a copy of the examining board’s certificate that Leeman was duly elected. But it does not appear to have been read as evidence in the court below. It is not contained, nor referred to, in the bill of exceptions. Consequently, it cannot avail the appellant for any purpose in this court. (Vaughn vs. Mills, 18 B. M., 638; Dodd vs. King, 1 Met., 430; Haney vs. Tempest, 3 Met., 95.)
Leeman offered to read as evidence a copy of the evidence introduced before the board for trying contested elections, in the contest between him and Spence and King, including what purport to be copies of his certificate of qualification, of his official bond, and of the order of the county court approving the bond, &c. Hinton objected to the evidence; and as he was not a party to the proceedings before the board, his objection should have been sustained. The bill of exceptions fails to show that any other evidence was introduced conducing' to prove that Leeman had qualified for the office as required by law.
Leeman, having failed to show that he was elected, that he, received a certificate of election, or that he qualified, by giving bond, &c., has failed to show that he is entitled to the office.
But Hinton, being the plaintiff, must show that he is entitled *43to the office, and cannot recover merely because Leeman is not entitled to it. And the fact, if conceded, that there was no valid election in August, 1863, does not necessarily prove that there was a vacancy at the time of Hinton’s appointment.
The constitution declares that judges of the county courts shall be elected “ for the term of four years, and shall continue in office until their successors be duly qualified ” (art. 4, sec. 30); and that a county court clerk shall be elected for each county, “ whose term of office shall be the same as that of the presiding judge of the county court.” (Art. 6, sec. 1.) The constitution does not declare that county court clerks shall continue in office until the qualification of their successors. It merely declares that their term of office shall be the same as that of county judges. It has been decided that the continuance in office of county judges, after the expiration of four years and until the qualification of their successors, forms no part of their term; and that county court clerks are not authorized by the constitution to continue in office until their successors shall be qualified. (Stevens vs. Wyatt Co., 16, B. M., 542.) Nor has the Legislature authorized county court clerks, elected for a full term, to continue in office until the qualification of their successors. Consequently, if August, 1863, had been the time for the general election of county court clerks, and if there was no valid election in McCracken county, there might have been reason to presume that there was a vacancy at the time of Hinton’s appointment.
But August, 1862, was the time for the general election of county court clerks. The fact that an election of county court clerk was held, or attempted to be held, in McCracken county, in August, 1863, authorizes the assumption that there was no election for that office in August, 1862, or that the successful candidate failed to qualify, or that, having qualified, he vacated the office ; and that the county court performed its duty by filling the vacancy. If so, its appointee was entitled to the office until the election and qualification of a successor, and the county court had no authority to eject him by declaring the office vacant and appointing Hinton to fill it; because the Legislature, whilst failing to provide for the continuance in *44office of county court clerks elected for a full term, until their successors shall be qualified, has provided for such continuance in office of persons appointed to fill vacancies. (R. S., chap. 32, art. 6, sec. 5.)
If the vacancy was not filled before Hinton was appointed, or if the person previously appointed to fill it had vacated the office, Hinton should have shown the fact.
As Hinton has not alleged that the election was controlled by military force, and as he has not shown that he is entitled to the office even if the election was illegal and void, we need not express an opinon upon the questions discussed by counsel concerning its validity. Judge Williams dissents from some portions of this opinion; what portions are shown by his dissenting opinion.
The judgment is reversed and the cause remanded, with directions to dismiss the petition unless it shall, within a reasonable time, be so amended as to show that Hinton is entitled to the office.