Gunson v. Baldauf

• Decision Date: 09 March 1931
• Docket Number: 12767.
• Citation: 88 Colo. 436,297 P. 516
• Parties: GUNSON v. BALDAUF.
• Court: Colorado Supreme Court

297 P. 516

88 Colo. 436

GUNSON v. BALDAUF.

No. 12767.

Supreme Court of Colorado, En Banc.

March 9, 1931

Rehearing Denied March 30, 1931.

Error to Douglas County Court; H. B. Teller, Judge.

Proceeding by Thomas R. Gunson to contest the election of X. J. Baldauf as county commissioner, in which contestee filed a counter-statement of contest. Judgment for contestee, and contestant brings error.

Reversed and remanded.

Charles R. Enos, Harold H. Healy, and Theodore A Chisholm, all of Denver, for plaintiff in error.

William Dillon, of Castle Rock, and J. M. Taylor and Fred S Caldwell, both of Denver, for defendant in error.

MOORE J.

The parties hereto were rival candidates for the office of county commissioner of the First commissioner's district of Douglas county at the election held November 4, 1930. The county board of canvassers reported that the plaintiff in error received 866 votes and the defendant in error received 868 votes for the office, and a certificate of election was issued to the latter. The plaintiff in error, seeking to contest said election under the special summary procedure authorized by sections 7794 to 7804, C. L. 1921, filed a statement of contest and complaint in the office of the clerk of the county court of Douglas county.

The contestee thereupon filed an answer and counter statement of contest. The answer contained what purports to be a general demurrer as follows: 'The said contestee shows and submits that the so-called statement of contest does not allege facts sufficient in law to entitle the contestor to the relief therein prayed for, and as grounds for this conclusion he alleges as follows.' The 'alleged grounds' are recited in eleven paragraphs, and are in effect special demurrers to each paragraph of the statement of contest based upon uncertainty and ambiguity.

The contestor having replied to the counter statement of contest the cause was regularly set for trial on December 29, 1930, and on the succeeding day the court sustained 'said demurrer of said contestee to the statement of the contestor herein,' to which ruling the contestor excepted, and elected to stand upon his statement of contest, and now brings the case here for review.

Two points are presented: (1) Is the statement of contest sufficient? (2) If good, must the charges therein contained be proven?

1. Election contests, for whatever office, necessarily are and must be summary. The method of procedure to be followed depends upon the office sought to be contested. Supreme Court Rules 85 to 90 cover the procedure for contesting the office of presidential elector, Supreme district, and county judge. In such a case the sufficiency of a complaint may be questioned by demurrer or motion. Rule 88. Section 7574, C. L. 1921, provides for the summary determination of primary election contests, after 'setting forth the grounds of complaint,' but is silent as to whether a complaint filed thereunder may be demurred to generally or specially. In construing this section, we held in the recent case of People ex rel. v. Mitchell, 88 Colo. 102, 292 P. 228, involving the office of county commissioner, that a demurrer to such a petition upon the grounds of insufficient facts and ambiguity was properly sustained where no sufficient facts were stated. It was unnecessary for us to, and we did not, determine whether a special demurrer based upon the sole ground of ambiguity was proper in a primary election contest.

This suit is brought under sections 7794 to 7804, C. L. 1921, creating an exclusive and summary procedure for the contest of the election of 'any person, declared duly elected to any county office, except the office of county judge.'

Section 7794 provides that such a contest may be filed by any elector of such county:

'First--When the contestee is not eligible to the office to which he has been declared elected.

'Second--When illegal votes have been received, or legal votes rejected, at the polls, sufficient to change the result.

'Third--For any error, or mistake, in any of the boards of judges, or canvassers, in counting or declaring the result of the election, if the error, or mistake, would affect the result.

'Fourth--For mal-conduct, fraud, or corruption on the part of the board of registry, or judges of election, in any precinct, or ward, or any of the boards of canvassers, or on the part of any member of such boards.

'Fifth--For any other cause (though not above enumerated), which shows that another was the legally elected person.'

The contest proceeding is before the county judge in the county in which the contest arises, and is initiated by the filing of a bond and a statement of contest, the contents of which must conform to section 7797 and include 'the particular cause or causes of the contest.'

Section 7798, among other things, provides: '* * * The contestee shall, within ten days after the service of such summons make and file his answer to the same with the clerk of said court, in which he shall either admit or specifically deny each allegation contained in such statement intended to be controverted by contestee on the trial of such contest, and shall set up in such answer any counter statement, embraced in any of the causes hereinbefore enumerated, as causes of contest in relation to county officers, which he relies upon as entitling him to the office to which he has been declared elected. When the reception of illegal or the rejection of legal votes is alleged as the cause of the contest, a list of the number of persons who so voted, or offered to vote, shall be set forth in the statement of contestor, and shall be likewise set forth in the...