Reversing.
Appellant and appellee were the candidates of the two rival major political parties in Kentucky for the office of county judge of Pendleton county, at the general election held in November, 1925. Appellee was awarded the certificate of election by the county board of election commissioners. Appellant then instituted this contest for the office under the provisions of subsection 12 of section 1596a, Kentucky Statutes. Appellee interposed a special plea challenging the jurisdiction of the court upon the ground that contest was not instituted within tell days after "the final action" of the board of canvassers, as is required by the section above relating to contests. The trial court sustained that plea and dismissed appellant's petition. Hence the appeal.
The right of an unsuccessful candidate to contest the election of his successful rival is purely statutory and this court has uniformly held the statutory provision as to the time within which a contest may be instituted to be mandatory. Jurisdiction to hear and determine a contest is conferred only when it is instituted within the time prescribed by the statute conferring the right of contest. A court is without jurisdiction to hear a contest instituted after the time prescribed. Then unless this contest was instituted within ten days after "the final action" of the board of canvassers, the trial court was without jurisdiction and properly dismissed the contest. The day on which "the final action" of the board is taken must be counted. Lowry v. Stotts, 138 Ky. 251,127 S.W. 789.
It appears herein that the board of canvassers was engaged two days in the work of canvassing the returns from the election held in Pendleton county in November, 1925. It met first on November sixth. At the conclusion *Page 814 of that day's work it adjourned to meet again November ninth, at which time it reassembled and on that day completed its work and issued the certificates of election. In canvassing the returns the board seems to have made a tabulation of the votes received by the various candidates for the various offices precinct by precinct and to have placed at the foot of each table the total vote each candidate received. That was done in the county judge's race and the tabulation of the vote in that race shows the total number of votes received by each of the candidates, appellant and appellee, in each precinct of the county, and the total in the county. As so shown appellant received 1891 and appellee 1899 votes. There is considerable controversy herein, involving largely a question of fact, as to when the tabulation so made was completed, whether on the sixth or the ninth of the month. That controversy may be said to have had its origin in opinions of this court construing the words "final action of the board of canvassers" found in the statute,supra, authorizing contests. Hall v. Martin, 183 Ky. 120,208 S.W. 417, and Thompson v. Taylor, 184 Ky. 106, 211 S.W. 582. They were both contests instituted under subsection 12, section 1596a, relating to contests for an office following a general election. In the former it was said:
"Under the doctrine announced in the ease of Ward v. Howard, 177 Ky. 38, such 'final action' for the purpose of contest proceedings is held to mean the time when the board ascertains the result of the election and not when it issues its certificate of election."
In the latter it was said:
"In Ward, etc. v. Howard, etc., 177 Ky. 38, which involved contests for nomination to certain offices under the general primary election law, we held that although the primary election statute provides for the giving by the contestant to the contestee of a written notice of his purpose to contest the latter's nomination and the grounds therefor 'within five days from the time the election commissioners have awarded the certificate of nomination to such candidate whose nomination is contested,' it was nevertheless necessary that the notice of contest be given within five days from the time the votes are canvassed and tabulated by the election *Page 815 commissioners, and it has been thus determined who received a majority of the votes, although no certificate of nomination has been issued by the election commissioners.
"No reason is perceived for holding that what was thus declared in the case, supra, to be the law is not equally applicable to a contest over an office for which the contestant and contestee were voted at a regular or general election. Indeed in Hall v. Martin, 183 Ky. 120, it was expressly so held."
In writing those two opinions the difference in the statutory provisions as to the duties of the board of canvassers or county board of election commissioners in canvassing the returns after a primary election and its duties in so doing after a general election was not called to the attention of and was overlooked by this court. In canvassing the returns from a primary election, by section 1550-26, Kentucky Statutes, the board's duties as relating to county races are thus defined:
"On the third day after the close of any primary nominating election the county election commissioners of each county shall proceed to canvass the returns of said primary election and tabulate the same. The tabulation of votes for all offices for which the nomination papers are required to be filed in the county court clerk's office shall be on another separate sheet of paper for each political party and shall be filed in the county court clerk's office immediately after the canvass of the returns and tabulation of the votes by said election commissioners; and certificates of nomination shall immediately issue to the persons receiving the greatest number of votes for the offices for which they were candidates."
That portion of the section read in connection with the provisions of subsections 5 and 7 of section 1565b, providing that candidates must file post election statements of expenses after a primary election, giving them thirty days in which to do so, and providing that the canvassing board may not issue certificates of nomination until the statement of expense has been filed, considered with the necessity for speedy institution and trial of contests for nominations in order that they may be determined in the trial and this court before the *Page 816 general election, led to the conclusion reached by this court in Ward v. Howard, 177 Ky. 38, 187 S.W. 506, that a contest for a nomination under subsection 28 of section 1550, Kentucky Statutes, which provides that it must be begun "within five days from the time the election commissioners shall have awarded the certificate of nomination" must be begun within five days after the board makes and files the tabulation provided for in subsection 26 of that section, quotedsupra.
With reference to general elections for county officers, the duty of the board in canvassing the returns is thus defined by section 1596a-5:
"Within two days next after an election the sheriff shall deposit with the clerk of the county court the returns from the different precincts. On the next day the said county board of election commissioners shall meet in the county court clerk's office between ten and twelve o'clock in the morning, open and canvass the returns of such election, and give triplicate or more written certificates of election, over their signatures, of those who have received the highest number of votes for any office exclusively within the gift of the voters of the county, one copy of the certificate to be retained in the clerk's office, another delivered to each of the persons elected, and the other forwarded by the county clerk to the secretary of state at the seat of government."
It is within ten days after such "final action of the board" that under section 1596a-12 a contest for a county office must be instituted. It will be observed that following the general election the board is not required to make or file in the office of the clerk a tabulation of the vote as is required following a primary election. Under the general election statute such tabulation of the vote as the board may have to make in order to ascertain who received the highest number of votes is not required to be filed and does not become a public record. So far as the statute provides when it has served its purpose it may be destroyed. The only official record of its canvass of the vote in county races at a general election which the board is required to make and file is the certificate of election, one copy of which it files, one of which it forwards to the office of the secretary of state, and one of which it delivers to the winner. The board being *Page 817 required by the statute relating to primary elections to make an official tabulation of the vote which must immediately be filed in the county court clerk's office, from which and from the date of the filing of which it may be ascertained who has been nominated and the date on which that fact was officially determined, this court's conclusion that under section 1550-28 a contest for a nomination must be instituted within five days after the ascertainment of the result by the making and filing of the tabulation required by section 1550-26, is sound and will be adhered to hereafter for the reasons assigned in Ward v. Howard, supra.
In view of the fact that no such official tabulation is required to be made and filed by the statute relating to general elections, section 1596a-5, but that the only official record of its ascertainment of the result required is the certificate of election required to be issued in triplicate and disposed of as above mentioned, the conclusion that the "final action of the board," under section 1596a-12, means the tabulation of the vote and ascertainment of the result by the board as was written in Hall v. Martin, and Thompson v. Taylor,supra, is unsound. The certificate of election being the only official record of the result of the election required to be made and filed by the board, the issuing of such certificate only can be held to be the "final action of the board" within the meaning of section 1596a-12, which provides that a contest for an office within the gift of the voters of a county must be begun within ten days after the final action of the board of canvassers, and the cases holding otherwise are overruled.
Guided by the opinions which we hereby overrule, the trial court held that since it appears herein that the board did make a tabulation and concluded from the evidence that such tabulation was so far completed that from it the result of the election in the race for county judge was ascertained on November sixth, it was necessary for appellant to institute his contest within ten days thereafter, which he failed to do. Hence the trial court dismissed the petition. The certificates of election issued on November ninth, and the contest was begun within ten days thereafter.
For the reasons indicated the judgment is reversed and the cause is remanded for further proceedings consistent herewith. Whole court sitting. Judge Sampson dissenting. *Page 818