1. The justices shall convene at ten o'clock in the morning of the appointed day, or as soon thereafter as may be, and at the same hour every succeeding day, Sunday excepted, until the vacancy is filled.

2. A majority of those present shall fill the vacancy, and their written certificate thereof shall be handed to and preserved by the clerk of the court.

3. In case of a tie, or if a majority cannot be otherwise obtained after three ballots, the sheriff shall give the casting vote.

4. When necessary, the writ of election to fill the vacancy shall issue from the court, or its clerk, as in the last section directed.

1851.

Justices to

o'clock.

convene at 10

Majority to act.

Tie vote--how determined.

Writs of election, how to issue.

To whom resignations are to

§ 7. All resignations of office shall be tendered to the court, or officer who is required to issue writs of election, be tendered. or who is required to fill the vacancy. All such resignations shall be in writing, and received and recorded by said court or officer; when it is required to be filled by the circuit judge, he shall cause a record to be made of said resignation in the orders of his court of that county in which the officer lives; and when by the county court, said court shall cause a record of the fact to be made in the records of its court; and when by the governor, he shall cause the same to be recorded in the executive journal.

ARTICLE VII.

Contested Election.

§ 1. When the election of a governor or lieutenant governor is contested, a board for determining the contest shall be formed in the following manner:

1. On the third day after the organization of the general assembly which meets next after the election, the senate shall select, by lot, three of its members, and the house of representatives shall select, by lot, eight of its members, and the eleven so selected shall constitute a board-seven of whom shall have power to act.

Contested elec tion of gover.

nor.

Board--how constituted.

Selections of members to be

2. In making the selection by lot, the name of each member present shall be written on a separate piece of paper, made by lot. every such piece being as nearly similar to the others as may be. Each piece shall be rolled up, so that the name thereon cannot be seen, nor any particular piece ascertained or selected by feeling. The whole, so prepared, shall be placed by the clerk in a box on his table; and, after it has been well shaken and the papers therein well intermixed, and the clerk having been blindfolded by the presiding officer, shall draw out one paper, which shall be opened and read aloud by the presiding officer; and so on, until the required number is obtained. The persons whose names are. so drawn, shall be members of the board.

Members board 10

3. The members of the board so chosen by the two houses, shall be sworn by the speaker of the house of rep- sworn.

of be

1851.

When the board

resentatives to try the contested election, and give true judgment thereon according to the evidence, unless dissolved before rendering judgment.

4. The board shall, within twenty-four hours after its selection, meet, appoint, its chairman, and assign a day for is to meet, &c. hearing the contest, and adjourn from day to day, as its business may require.

are to be ex cused from serv ing on board.

5. If any person, so selected, shall swear that he cannot, How members without great personal inconvenience, serve on the board, or that he feels an undue bias for or against either of the parties, he may be excused by the house from serving on the board; and if it appears that a person, so selected, is related to either party, or is liable to any other proper objection on the score of his impartiality, he shall be so excused.

6. Any deficiency in the proper number, so created, shall Deficiences to be supplied by another draw from the box.

be supplied.

7. The board shall have power to send for persons, paPowers of pers, and records, to issue attachments therefor, signed by its chairman, swear witnesses by its chairman or clerk, and issue commissions for taking proof.

board.

retain the office

if there is a tie.

When new elec

tion is to be or

8. Where it shall appear that the candidates receiving Incumbent to the highest number of votes given have received an equal number, the incumbent shall be adjudged to retain the of fice. 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.

dered, &c.

bers of board.

9. No decision shall be made but by the vote of six memDecisions to bers. Its decision, when made, shall be final and conclusive. be by six mem. It shall be made out in triplicate, and signed by the members voting therefor. One copy shall be retained by the chairman or clerk, and one delivered to the presiding officer of each house.

10. If a new election is required, it shall be immediately New election ordered, by the proclamation of the speaker of the house to be proclaimed of representatives, to take place within six weeks thereafter, and on a day not sooner than thirty days thereafter. 11. When a new election is ordered, or the incumbent When office is adjudged not to be entitled, his powers shall immediately cease; and if the office is not adjudged to another, it shall be deemed to be vacant.

vacant.

12. If any member of the board willfully fails to attend Penalty when its sessions, he shall be reported to the house to which he board fails to at belongs, and, thereupon, such house shall, in its discretion, punish him by fine or imprisonment.

member of the

tend.

13. If no decision of the board is given during the then to be dissolved. session of the legislature, it shall be dissolved, unless, by

When board

joint resolution of the two houses, it is empowered to continue longer.

1851.

Contested elec

bers of Legisla.

ded.

§ 2. When the election of a member of the general assembly is contested, that branch of the legislature to which tons of mem he belongs, within three days after its organization, shall, ture, how deci in like manner, select a board of not more than nine nor less than five of its members, for determining the contest; which board shall be governed by the same rules, have the same power, and be subject to the same penalties as would the board to determine the contested election of governor, and shall report its decision to that branch of the legislature by which it was appointed, for its further action.

Board for determing contes

er than govern. er--how consti

§ 3. The governor, attorney general, auditor, treasurer, and secretary of state, or any three of them, shall be a ted elections oth board, with like powers as those named in the last section, for determining the contested election of any officer, other tuted. than governor or lieutenant governor, elective by the voters of the whole state, or of a judge or clerk of the court of appeals, circuit judge, chancellor of the Louisville. chancery court, or commonwealth's attorney.

Members of board to take

1. Each member of the board, before entering on his duties as such, shall be sworn by some judge or justice to try oath. the contested election, and give true judgment thereon according to the evidence.

Rules of gov.

2. The board and its acts shall be governed by the rules. named in the last section, where the same are applicable to ernment. its duties.

3. A majority of the board shall be necessary to a decision, which shall be in writing, and signed in duplicate by the members concurring therein-one copy to be retained in the secretary's office, and the other delivered to the successful party or sent to him by mail.

Majority to

decide.

Governor to issue comniis.

4. The governor shall, immediately after such decision, issue the proper commission, or order a new election, as sions. the case may require.

Board of con. tested elections

town officers.

§ 4. The judge of the county court, and the two justices of the peace residing nearest to the court house in each for county and county, shall be a board, with like powers as those named in the last section, for determining the contested election of any officer elective by the voters of the county or any justice's district therein, or of any police judge or police marshal, except members of the general assembly. If any of said persons are absent from the county or cannot properly act, then said board shall be filled by adding thereto-first, the county court clerk, then the justice of the peace who resides next nearest to the court house, and so on, excluding such as cannot properly act, till the board is full. If either party shall make affidavit, and file the same with a county board, that such party verily believes that either or both of said justices will not give a fair and impartial trial,

1851.

then the board shall be filled by other justices in lieu of those thus objected to.

1. The board and its acts shall be governed by the rules Rules to gov. named in the next two preceding sections, where the same are applicable to its duties.

ein board.

be in writing.

2. The decision of the board shall be given in writing Decisions to and signed in triplicate-one copy to be entered on the minutes of the court, another handed to the successful party, and the other, when necessary for obtaining a commission, forwarded by mail to the secretary of state.

Court to issue

writ of election.

Notice to be

given of contest.

3. When the decision so requires, the court shall immediately issue a writ for a new election.

§ 5. No application to contest the election of an officer shall be heard, unless notice thereof, in writing, signed by the party contesting, is given to the officer returned.

1. The notice shall state the grounds of the contest, and Grounds of con- none other shall afterwards be heard, as coming from such

test to be stated.

to be given.

party.

2. In the case of an officer elective by the voters of the When notice whole state or any judicial district, the notice must be given within thirty days after the election. In the case of a senator or representative, it must be given within fifteen days; and in that of any other officer, within ten days after the election.

be taken.

3. Immediately after such notice, either party may proWhen proof to ceed to take proof by depositions, under the same rules and regulations as govern the taking of depositions in suits in chancery, except that no dedimus shall be required for taking a deposition out of the state. The depositions shall be sealed up by the officer taking them, and directed to the board having power to decide the contest, or to the clerk of the senate, or clerk of the house of representatives, as the case may require.

4. Such depositions properly taken, shall be read as eviDepositions dence before that branch of the legislature or the board evidence but can having jurisdiction of the case; but either can, in its discretion, call for and hear other proof.

have other proof

to close.

5. The taking of depositions to be used before the legisWhen proof is lature, or either branch thereof, shall close ten days before the next meeting thereof, or, if in session when the notice is given, until it is ordered to close; if before a county board, it shall close three weeks after the notice of the contest; and if before the other board, six weeks after the notice.

6. The case shall be heard by a county board on the When case to fourth Monday after the service of notice; and by the other be heard by the board, the eighth Monday after such service; but either may, for good cause, allow further time.

county board.

7. The cost of the proceeding shall be adjudged against Who to pay the unsuccessful party, and a certificate thereof given by the board, or by the clerk of either branch of the legisla

costs, &c.

ture, as the case may require. A judgment for the same may be obtained after five days' notice, in a circuit or county court.

1851.

ARTICLE VIII.

Pay of officers of elections, &c.

§ 1. The costs of all elections held in any county shall be paid out of the county levy.

§ 2. Officers of elections shall receive pay as follows: judges, one dollar, each; sheriffs, one dollar, each; clerks, two dollars, each. In all elections to fill vacancies, the same fees, except that the clerk shall only receive one dollar. For comparing the returns of two or more counties in the election of a senator or representative, a sheriff shall receive two dollars, and one dollar and fifty cents for each twenty five miles of travel in going and returning.

§ 3. The compensation to witnesses, and officers taking depositions, in cases of contested elections, shall be the same as in suits at law.

§ 4. The clerk of the county court shall have twenty five cents for each certificate of election or appointment of an officer, to be paid by the person receiving it.

ARTICLE IX.

Election of United States Senator.

Costs of elec. tions, how paid.

Pay of officers of elections.

Compensation of witnesses.

Pay of county. court clerks.

Election of U.. States Senator,

§ 1. Senators in the congress of the United States, shall be elected by viva voce vote of the members of the two when to be held. branches of the general assembly on joint ballot.

1. The election shall be held on the second Monday after the commencement of that session of the general assembly which next precedes the expiration of the senatorial term of the incumbent; and if no election is made on that day, the two houses may adjourn from time to time until the election is made.

2. If a vacancy occurs, when the legislature is not in session, in an unexpired term, the election shall be held on the second Monday after the commencement of the next session; and if, during the session of the legislature, or if notice thereof is only received during such session, the election shall be held on the seventh day next after any member of either house moves to go into an election; or, if that seventh day is Sunday, then on the next succeeding day. In either case, the election shall be proceeded with as before directed.

Vacancy oc curring during

session, to be filled.

when

give certificate

senator, &c.

of

§2. When the governor is notified, by the clerk of either Governor to house, of the election of a senator, or when the governor of election appoints a senator, he shall give a written certificate of such election or appointment, attested by his signature and the seal of the state. If he refuses to give such certificate after an election, the presiding officer and clerk of either house may give the same, over their signatures.