Cowie v. Means

• Decision Date: 07 January 1907
• Parties: COWIE, Secretary of State, v. MEANS et al.
• Court: Colorado Supreme Court

88 P. 485

39 Colo. 1

COWIE, Secretary of State, v. MEANS et al.

Supreme Court of Colorado, En banc.

January 7, 1907

Petition by James Cowie, as Secretary of State of the state of Colorado, against Rice W. Means and others, as the committee to fill vacancies on the Lindsey ticket for representatives and others, for a review of the proceedings and decision in the district court of the city and county of Denver, wherein such court reviewed the action of the petitioner in refusing to accept and file two alleged certificates of nomination to fill certain alleged vacancies in nominations made by respondents, and ordered the petitioner to accept the certificates and file the same, and forthwith certify said nominations to the county clerks and recorders. Reversed.

Gunter and Steele, JJ., dissenting.

Henry J. Hersey, Thomas Ward, Jr., and I. B Melville, for petitioner.

BAILEY J.

This is a proceeding under the election law, commonly known as the 'Australian Ballot Act,' for a review of the proceedings and decision in the district court of the city and county of Denver, wherein such court reviewed the action of the petitioner, the Secretary of State, in refusing to accept and file two alleged certificates of nomination to fill certain alleged vacancies in nominations made by respondents, assuming to act as a committee to fill such vacancies, the original nominations purporting to have been made by individual electors for candidates for representatives to the General Assembly upon the so-called 'Lindsey ticket.' The district court ordered the Secretary of State to accept the certificates to fill vacancies and file the same, and 'to forthwith certify said nominations to the county clerks and recorders of said counties composing the said districts, respectively, since it appears that the time allowed by statute for objecting to said certificates of nomination has long passed and no other objections can lawfully be made thereto.' Another division of the district court assumed jurisdiction of the same matter in another proceeding and made an order in direct opposition to the one heretofore mentioned. Consequently both parties requested this court to assume jurisdiction. The facts out of which the controversy arose and the questions of law involved will appear in their proper order in this opinion.

1. The judge of the district court who reviewed the action of the Secretary of State was a candidate for election upon the Lindsey ticket. The parties whose nominations were involved in the proceeding claim to be candidates upon the Lindsey ticket. Upon the service of the notice to the Secretary of State requesting him to either accept and file these certificates, or to show cause why he did not do so, he appeared before the judge of the district court, and filed a petition for change of venue, on the ground that the judge was disqualified by reason of his interest to hear and determine the matter; this contention being based upon the fact that the judge was a candidate for re-election upon the Lindsey ticket. This motion was overruled, and in this the court erred. The judge, being a candidate upon the same ticket, was presumably interested in the success or failure of that ticket at the polls. If that ticket went before the people half made up, it would not command the respect nor secure the support which a complete ticket would command or secure. That which would tend to weaken the entire ticket would be detrimental to the interests of each candidate upon it. Consequently the interests of the trial judge in the result of the litigation was apparent, and to none more than to the judge himself. The error in this instance is the more flagrant because in two cases we have determined that under similar circumstances a trial judge was disqualified to act. Phillips v. Curley, 28 Colo. 34, 62 P. 837; MacMillan v. Spencer, 28 Colo. 80, 62 P. 849.

2. It is contended that respondents Means, Short, and Harris were not a committee duly or legally appointed to fill vacancies on the Lindsey ticket. It appears that the original certificate of nomination was one attempted to be made by electors otherwise than in convention assembled. The statute provides: 'A certificate of nomination containing the names of the candidates for the offices to be filled * * * shall be signed by voters residing within the district or political division in and for which the officer or officers are to be elected * * * each voter signing a certificate shall add to his signature his place of residence and shall before an officer, duly authorized to take acknowledgments acknowledge his signature and make oach that he is a voter within and for the political division for which such nomination is made and has truly stated his residence.' Section 6, Sess. Laws 1891, pp. 144, 145. It appears that the signers of the original certificates of nomination failed and neglected to sign the oath required by this statute. They signed the certificate of nomination. The officer recited in his certificate that they made affidavit as required by law. The petitioner contends that this is insufficient--that the affidavit should be signed by the voter as well as the certificate of nomination. Respondents contend that the certificate of the notary public that the voters have made the affidavit is sufficient. It is further contended by respondents that, inasmuch as the original certificate had never been objected to because of this alleged informality, the question could not now be raised. It is apparent that, if the so-called committee was not duly appointed and authorized to act, the Secretary of State would not have been justified in receiving and accepting a certificate to fill vacancies made by it, for the reason that, if an instrument attempting to create a power is fatally defective, no power is granted. An agent or attorney in fact, the appointment of whom must be made in a particular manner, is without authority to act as such agent or attorney if the act by which he was attempted to be created is void. A power cannot be created unless the generative force has vitality.

State v. Hayes (Mont.) 78 P. 486, is somewhat in point upon this proposition. That matter was in response to nominations by a committee where the convention assuming to appoint them was without power to nominate under certain conditions. The court said: 'If the convention could not make nominations, it certainly could not delegate to a committee authority it did not possess.' So, in this matter, if the original certificate of nomination lacked vitality because of the failure of the nominors to make and sign the oath, it could not delegate to the committee the power to fill the vacancies. So far as we have been able to learn, the precise question here involved has not been adjudicated except in New York. In two of the New York cases it appears that there was a notary's certificate exactly the same as the notary's certificate on the nominations in controversy. In the case of the People ex rel. Oliver v. Board of Police Com'rs (Sup.) 31 N.Y.S. 467, it is said: 'In each instance the voter has signed the certificate, added his place of residence, and acknowledged it before a notary, but has omitted to sign the oath required by the statute. In other words, the voter has signed the paper once, whereas he should have signed it twice; i. e., once to the certificate of nomination and once to the oath. [See People ex rel. Klinker v. Board of Police Com'rs (Sup.) 31 N.Y.S. 469.] The facts here presented are precisely the same as those presented before Mr. Justice Barrett in the Klinker Case. * * * The rule there laid down is a wise and a wholesome one, and should be strictly enforced. The oath of the nominor as evidenced by his signature thereto is a safeguard against fraud and imposition. Although there is no intimation of fraud in the case under consideration, and I am satisfied of the good faith of the applicant, and that the absence of signatures to the oath is clearly due to inadvertence and want of proper care in the preparation of the certificates, still I am of opinion that the board of police commissioners were warranted in rejecting the certificates, for the reason that they are not in apparent conformity with the provisions of the statute.' In the Klinker Case it is said: 'The language of the statute, as bearing upon the present question, is that 'the nominations shall be made by a certificate signed and acknowledged by such voters, each of whom shall add to his signature his place of residence and make oath that he is such voter and has truly stated such residence.' * * * The sole safeguard here is plainly the oath. It would be easy enough to procure signatures to a certificate without an oath, and thus to evade the statute. The difficulty would be in inducing a large number of people to commit perjury. Clearly, therefore, the oath should be rigidly demanded, both in form and substance, for there should be no possible question as to its adequacy to punish the nominator in case his statements as to residence and voting right are untrue. * * * If it was not contemplated that the oath should be filed, then the proposed safeguards against fraudulent nominations are wholly nugatory for how, under such circumstances, could any one giving a false residence be punished for perjury? The oath would be, so to speak, in the air, at all events, in the possible recollection of the notary. Even if the notary's certificate to the effect that the oath was taken were deemed sufficient, the same result would practically follow. The statutory safeguard should not depend for its efficiency upon a notary's recollection, nor upon his ability to identify hundreds of people, much less upon the mere presumption in favor of his performance of duty....