Allen v. Glynn

• Decision Date: 07 March 1892
• Citation: 29 P. 670,17 Colo. 338
• Parties: ALLEN v. GLYNN.
• Court: Colorado Supreme Court

29 P. 670

17 Colo. 338

ALLEN v. GLYNN.

Supreme Court of Colorado

March 7, 1892

Proceeding by Charles L. Allen to contest the election of James Glynn to the office of district judge of the thirteenth judicial district. On motion to strike out parts of the complaint.

The other facts fully appear in the following statement by HAYT C.J.:

This is an original proceeding, instituted in this court for the purpose of contesting an election in the thirteenth judicial district. In 1891 the legislature adopted, in a modified form, the Australian ballot law. At the recent election, the first held since the provisions of the new law became operative, Charles L. Allen, contestor, James Glynn contestee, and William T. Skelton were opposing candidates for the office of district judge of the thirteenth judicial district of this state. The former received his nomination at the hands of the Republican party of the district, Skelton was nominated by the Democrats, while Glynn ran as candidate of a third party, commonly styled the 'People's Party.' From the petition filed it appears that the official count, made by the state canvassing board, gave contestee 862 votes, contestor 860, and Skelton 508. Contestee having been declared elected, this proceeding has been instituted by contestator. The following provisions of the statute are necessary to a correct understanding of the opinion, (Sess. Laws 1891, p. 143 et seq.:)

'Section 1. All ballots cast in elections for public officers, or for the decision of any question submitted to electors, within this state, shall be printed and distributed at public expense. The printing of ballots and cards of instruction for the voters in each county, and the delivery of the same to the election officers as hereinafter provided, shall be a county charge, the payment of which shall be provided for in the same manner as the payment of other county expenses, but the expense of printing and delivering ballots and cards of instruction to be used in municipal elections shall be a charge upon the city or town in which such election shall be held.'

'Sec 13. All certificates of nomination which are in apparent conformity with the provisions of this act shall be deemed to be valid, unless objection thereto shall be duly made in writing within three days after the filing of the same. In case such objection is made, notice thereof shall forthwith be mailed to all candidates who may be affected thereby addressed to them at their respective post-office addresses, if any, or place of residence, as given in the certificate of nomination. The officer with whom the original certificate was filed shall pass upon the validity of such objection, and his decision shall be final: provided, such officer shall decide such objection within at least forty-eight hours after the same is filed, and any objection sustained may be remedied or defect cured upon the original certificate, or by an amendment thereto, or by filing a new certificate within three days after such objection is sustained.'

'Sec. 18. * * * Upon each ballot, commencing not less than two inches below the bottom line of the duplicate stub, shall be printed the caption and device, if any, with the name thereunder of each office to be filled, at the then ensuing election, and the name or names of such candidates therefor, respectively, as may have been certified therefor in the certificates hereinabove mentioned. Each set of nominations shall be arranged in a list running lengthwise of the ballot, with the appropriate designation of the political party, committee, or persons making such nominations, as set forth in the certificate thereof; and it shall be lawful to designate each or any set of nominations in the certificate thereof, and upon the ballots, by an appropriate emblem or design, such as a flag, eagle, rooster, or other device, as may be set forth in the certificate of nomination: provided, no two sets of nominations shall have the same device thereon, and each political party shall have the prior right to use the device used by it at the last previous general election. Each set of nominations shall be arranged on such ballot, side by side, length wise, with the name of each office in each set of nominations in a parallel line, and just above the name of the candidate for such office; and, when there is no nominee in any particular set of nominations, a blank shall be left under said office. * * *

'Sec. 20. Whenever it shall appear, by affidavit of a candidate or his agent, that an error or omission has occurred in the publication of the names or description of the candidates nominated for office, or in the printing of the sample or official ballots, the district or county court, or a judge thereof, either in term time or in vacation, may, upon petition of such candidate or his agent, by order require the county clerk, city clerk, or town clerk, charged with the duty in respect to which an error or omission has occurred, to forthwith correct such error, or to forthwith show cause why such error should not be corrected, costs, including a reasonable attorney's fee, may be taxed, in the discretion of such court or judge, against either party. The county clerk, city clerk, or town clerk shall also, on their own motion, correct, without delay, any error in all ballots which he or they may discover, or which shall be brought to his or their attention, and which can be corrected without interfering with the timely distribution of the ballots as herein provided.'

'Sec. 26. On receiving his ballot, the voter shall forthwith, and without leaving the inclosed space, retire alone to one of the voting shelves or compartments so provided, and shall prepare his ballot by marking, in ink, in the appropriate margin or place, a cross (X) opposite the name of the candidate of his choice for each office to be filled; and, in case of a question submitted to a vote of the people, by marking in the appropriate margin or place a cross (X) against the answer which he desires to give: provided, that where a voter desires to vote for all the nominations included in one set of nominations, instead of marking a cross opposite the name of each candidate, he may mark a cross (X) above such list of nominations, and near to the device, emblem, or design designating such list of nominations, if such device, emblem, or design there be, and such mark shall indicate that the voter cast his ballot for all the nominations in the list under such device. * * *'

'Sec. 36. Every public officer upon whom any duty is imposed by this act, who violates his said duty, or who neglects or omits to perform the same, shall be punished, except as otherwise in this act specially provided, by imprisonment in the county jail for a term not exceeding one year, or by a fine of not less than one hundred dollars and not more than three thousand dollars, or by both such fine and imprisonment. * * *'

HELM J., dissenting.

H. B. Johnson and H. N. Haynes, for contestant.

H. Riddell, for respondent.

HAYT, C.J., ( after stating the facts.)

This is the first contest instituted in this court under the new election law, the Australian ballot system. Questions affecting the freedom and purity of elections are of vital importance under our system of government. While the present contest is important to the contestants and the people of the thirteenth judicial district, it is of still greater importance on account of its effect upon the cause of ballot reform. It is to be noted at the outset that, in common parlance, the Australian ballot system is a name applied indiscriminately to enactments of different states, widely dissimilar in many important particulars, so that with us the name is of little significance. It is doubtful if any state has yet, or will in the future, adopt, without change, the Australian ballot law as it is found in the island of its birth. Some of its essential features have been discarded as inapplicable to our institutions and theory of government. The act under which this contest must be determined contains 44 sections. It will only be necessary, however, to refer to a few of these sections in this opinion. By the first section provision is made for printing and distributing all ballots by public officers at public expense. Section 2 excepts certain school and special elections from the requirements of the first section. Sections 3 to 12, inclusive, provide in detail the manner of making, certifying, and publishing nominations. Section 13 provides the mode in which objections to certificates of nominations may be made and determined, and also provides how defects in such certification may be cured. Section 14 relates to acceptances of nominations, while by the next section provision is made for filling vacancies in nominations.

Turning to the complaint, we find that paragraphs 12 to 15 inclusive, against which (and paragraphs 16 and 17) this motion to strike is interposed, relate exclusively to the manner in which certain candidates were nominated and their names published, and the way in which Glynn's name was placed upon certain tickets. Paragraphs 16 and 17 have reference to the number of legal votes received and registered. If the allegations contained in these latter paragraphs are to be taken as true, then it appears that contestant received a majority of all the legal votes cast. It is probable these paragraphs were included in the motion to strike out by mistake. The allegations appear to be legal and proper, and, so far as the motion applies to them, it will be overruled without further comment. That part of the motion which is directed to paragraphs 12 to 15, inclusive, raises the principal question upon which we are called to pass at this time. It is alleged, in...