Benson v. Gillespie

• Decision Date: 04 December 1916
• Docket Number: 9087.
• Citation: 161 P. 295,62 Colo. 206
• Parties: BENSON v. GILLESPIE et al., Election Commission of City and County of Denver.
• Court: Colorado Supreme Court

161 P. 295

62 Colo. 206

BENSON v. GILLESPIE et al., Election Commission of City and County of Denver.

No. 9087.

Supreme Court of Colorado, En Banc.

December 4, 1916

Error to District Court, City and County of Denver; John W Sheafor, Judge.

Petition by John W. Gillespie against Bert Martin and others constituting the Election Commission of the City and County of Denver, and Horace G. Benson. Certificate of Benson's nomination declared insufficient, and he brings error to review the cause under section 44 of an act concerning elections, approved October 17, 1910. Reversed, and cause remanded, with direction to dismiss.

Gabbert C.J., and Garrigues, J., dissenting.

Charles A. Irwin, Philip Hornbein, and O. N. Hilton, all of Denver for plaintiff in error.

Henry E. May and Samuel D. Crump, both of Denver, for defendants in error.

TELLER J.

This cause is before us for review under the provisions of section 44 of an act concerning elections, approved October 17, 1910 (Laws 1910, p. 42).

The petition filed in the district court represented that the petitioner was the candidate of the Republican party, duly nominated at a primary election, for the office of district attorney for the Second judicial district; that a pretended certificate of nomination of respondent Horace G. Benson for said office of district attorney had been filed with the respondents, the election commission of the city and county of Denver; that said certificate of nomination is signed by only 58 persons who were at the time of such signing registered voters in said district; and that said Benson had filed with said commission his acceptance of said nomination. There were numerous other allegations which we need not now consider.

The prayer of the petition was that said certificate of nomination be ordered stricken from the files of said commission, and that the commission be restrained from placing the name of said Benson on the official ballot as a candidate for said office.

Upon the coming in of the answers, which put in issue the sufficiency of the certificate of nomination, the case was set for trial, and tried to the court.

It appears from the record that the trial court declined to pass upon several of the questions raised, and held the certificate of nomination insufficient on the ground that it was signed by less than 100 registered voters. In other words, the court construed the term 'legal voters,' as used in the statute under consideration, as meaning registered voters. It was conceded that the certificate was signed by more than 100 legal voters, if that term was not restricted in its meaning to registered voters. Judgment was entered according to the prayer of the petition.

In support of the court's construction of the law it is urged that the right to participate in the nomination of candidates for office, when such nomination is made at a primary election, is, by section 11 of the law in question, confined to registered voters. This it is argued, indicates a purpose on the part of the makers of the law to give the right of making nominations to those only who are registered voters.

We do not think such conclusion is justified. The section gives the right to vote at a primary election to 'every person possessing the constitutional qualifications of a voter,' which qualifications are then named, together with the statutory requirements as to residence in county, city, ward, and precinct, and adds the proviso:

'That every such voter shall also be properly registered, if such registration shall be required by law for primary elections.'

When it is remembered that this language is used concerning elections, for the orderly and proper conduct of which registration laws have been passed, it is clear that it does no more than to make the registration laws applicable to primary elections, which this act inaugurated. Such laws do not limit the right of suffrage, or add to the constitutional qualifications of voters, nor could they do so. They merely prescribe a procedure by which frauds may be prevented and mistakes avoided on the day of election. When this purpose is recognized, the requirement that voters at the primary election be registered appears natural and proper.

No such reason exists for making the same requirement of voters who sign a certificate of nomination. The law requires each voter signing such...