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Commonwealth v. Clark

February 6, 1953

COMMONWEALTH EX REL. BUCKMAN, JR., ATTY. GEN.,
v.
PREECE. CLARK ET AL. V. PREECE



Combs, J., not sitting.

Waddill

WADDILL, Commissioner. The primary issue to be determined on this appeal of these consolidated actions is whether or not the appellee, Harrison Preece, possesses the requisite educational qualifications to hold the office of member of the Martin County Board of Education. A corollary question is whether the court may issue a writ of mandamus against the members of the Board of Education and the Superintendent of Schools of Martin County, directing them to issue to appellee a veteran's high school diploma. The circuit court has answered these questions in the affirmative.

The question of appellee's eligibility to hold the office of board member stems from a quo warranto proceeding instituted on the authority of the attorney general. The second question presented arises out of the mandamus action filed by Preece. By order of the court the two suits were consolidated.

KRS 160.180 enumerates the qualifications which a person must possess to be eligible to membership on a county board of education. Subsection (c) thereof provides that the member must have completed at least the eighth grade in the common school, and, of course, that means before he was elected to the office. Commonwealth ex rel. Meredith v. Bogie, 287 Ky. 103, 152 S.W.2d 286.

In Commonwealth, by Funk v. Clark, 311 Ky. 710, 225 S.W.2d 118, 119, we held that the burden rests upon a person whose educational qualifications have been properly challenged to establish his eligibility by one or more of three alternative ways: (1) school records, (2) affidavits of one or more teachers 'under whom the work was completed', or (3) 'by an examination held under rules and regulations adopted by the State Board of Education.' Also see Commonwealth ex rel. Meredith v. Norfleet, 272 Ky. 800, 115 S.W.2d 353; Commonwealth v. Mullins, 286 Ky. 242, 150 S.W.2d 668.

Appellee attempted to establish that he had successfully completed the eighth grade at the Lynn Bark School in Martin County in three successive school years: (1) In the school year of 1937-'38 under Mrs. Elsie G. Fish, teacher; (2) in the school years of 1938-'39 under T. J. Hardin, Jr., teacher; and (3) in the school year of 1939-'40 under J. E. Maynard, Jr., teacher. The affidavits of these teachers were filed which, if considered independently of other evidence in the case, support appellee's contention. Commonwealth ex rel. v. Griffen, 268 Ky. 830, 105 S.W.2d 1063. However, we must consider the value of these affidavits in the light of the entire record.

Mrs. Fish and Mr. Maynard testified on the trial of the case that the statements made in their affidavits that appellee had successfully completed the eighth grade while they were teachers at the Lynn Bark School were in error; that they had examined the school records which had been kept by them while teaching there and that these records reflected that appellee had not completed the eighth grade under them.

The original teachers' register of the Lynn Bark School reveals that during the school year of 1937-'38, Elsie G. Fish was the teacher and that Harrison Preece was a pupil in the eighth grade and that he was not recommended by his teacher for promotion. Mrs. Fish testified that appellee's failure to regularly attend school during that year would of itself disqualify him for promotion. The school record sustains her testimony.

The school records which were kept by T. J. Hardin, Jr., while he was teacher at the Lynn Bark School affirmatively show that Harrison Preece was not a pupil in that school during the school year of 1938-'39 and that the eighth grade was not taught in the Lynn Bark School during that year.

The school records kept by J. E. Maynard, Jr., as teacher, during the school year of 1939-'40 show that Harrison Preece was not a pupil in the Lynn Bark School during that year and that the eighth grade was not taught there that year.

Appellee testified that he had completed the eighth grade, but subsection (c) of KRS 160.180 does not permit verbal testimony of the party or even his school mates to be considered. Commonwealth, by Funk v. Clark, 311 Ky. 710, 225 S.W.2d 118; Commonwealth, by Meredith v. Moye, 273 Ky. 384, 116 S.W.2d 952.

In Commonwealth, by Funk v. Clark, 311 Ky. 710, 225 S.W.2d 118, 119, in considering similar questions to those appearing here, we said:

'* * * But when the affiant, Mr. Sellers, was placed on examination, he very effectually retracted his previous statement. Over against that retracted affidavit is the undenied school record which, though showing a negative situation, is positive in character. The absence of an entry in a public record that would appear in it in the usual course may be generally accepted as evidence that an event did not done. place or that something was not done. 20 Am.Jur., Evidence, Sec. 1023. An affidavit is the weakest kind of proof and is not admissible as primary evidence of facts it narrates except under an express or special statutory provision such as the present one. Documentary official records are regarded as reliable. One should certainly be accepted as evidence of the fact to which it relates where it is not impeached though the person who made a contradictory affidavit testified that the fact stated therein was otherwise. It has been held that the last statement which a witness makes should be regarded as a withdrawal of the former one. Duvall v. Commonwealth, 198 Ky. 609, 249 S.W. 768; Bass v. Commonwealth, 232 Ky. 445, 23 S.W.2d 926. * * *'

Therefore, we are impelled to find that appellee did not establish by the methods provided by KRS 160.180(c) that he had successfully completed the eighth grade at the Lynn Bark School and that the judgment declaring the appellee to possess the educational qualifications for ...


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