Israel v. Wood
| Decision Date | 06 November 1933 |
| Docket Number | 13297. |
| Citation | 27 P.2d 1024,93 Colo. 500 |
| Parties | ISRAEL v. WOOD. |
| Court | Colorado Supreme Court |
Rehearing Denied Dec. 18, 1933.
Error to Ouray County Court; D. N. McDonald, Judge.
Proceeding by Harve E. Israel to contest the election of Jess M. Wood to the office of sheriff of Ouray county. To review an adverse judgment, contestant brings error.
Reversed and remanded, with directions.
Carl J. Sigfrid, of Ouray, for plaintiff in error.
Moynihan Hughes & Knous, of Montrose, for defendant in error.
At an election held on November 8, 1932, Harve E. Israel and Jess M. Wood were rival candidates for the office of sheriff of Ouray county. The canvassing board held that Wood was elected by a plurality of two votes. Israel thereupon commenced a contest proceeding in the county court. The court found that the contestee, Wood, was elected by a plurality of one vote and rendered judgment accordingly. We are asked to reverse that judgment.
Five votes were cast in precinct No. 2 by persons who were inmates of, and were kept at public expense at, the county poorhouse of Ouray county. The votes were for the contestee, and the court credited them to him. The contestor claims that those votes should have been rejected.
Section 4 of article 7 of the state Constitution provides: 'For the purpose of voting * * * no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence, * * * while kept at public expense in any poorhouse. * * *' That provision occurs also in section 7528, Compiled Laws. If, just prior to their becoming inmates of the poorhouse, the voters had a bona fide residence in the precinct in which the poorhouse is situated, they did not lose their residence in that precinct by becoming inmates of the poorhouse. But their presence in the institution as public charges raised a presumption against their right to vote in the precinct in which it is situated, and it requires evidence to overcome that presumption. Merrill v. Shearston, 73 Colo. 230, 214 P. 540; Kemp v. Heebner, 77 Colo. 177, 234 P. 1068. No such evidence was offered.
Counsel for the contestee say that there is no evidence showing in what precinct the poorhouse is situated. The county court took judicial notice of the fact that the poorhouse is in precinct No. 2. Ouray county is one of the smallest counties in the state, and its population in 1930, according to the census, was only 1,784. Colorado Year Book for 1932, p. 18. According to the evidence, the poorhouse is about five miles north of the county seat. It is a public institution, established by the county commissioners under statutory authority and maintained at public expense. C. L. §§ 8915 to 8919, both inclusive. The election precincts, also, are established by the county commissioners under statutory authority. C. L. § 7705. Courts take judicial notice of matters of common knowledge in the community where they sit. Antlers Athletic Association v. Hartung, 85 Colo. 125, 274 P. 831; National Optical Co. v. United States Fidelity & Guaranty Co., 77 Colo. 130, 235 P. 343. In the latter case we took judicial notice of the relative positions of number 1522 Glenarm place and the corner of Seventeenth and Champa streets in Denver. We have held that courts may take judicial notice of the following matters: The location of a city in a county, Gould v. Mathes, 55 Colo. 384, 135 P. 780; the existence and location of railroads within the jurisdiction of the court, Stuart v. Colorado Eastern Railroad Co., 61 Colo. 58, 156 P. 152; the distance by railroad between Denver and Hot Sulphur Springs, Osborn v. People, 83 Colo. 4, 262 P. 892. It has been held by the Court of Appeals that the court will take judicial notice of the location of the counties, cities, and towns of the state, and that particular places are in the same judicial district trict and are connected by railroads. Gibson v. Austin, 23 Colo.App. 220, 128 P. 859. In Re City and County of San Francisco, 191 Cal. 172, 215 P. 549, it was held that the Supreme Court may take judicial notice of the geographical positions of the San Francisco General Hospital and the Arroyo Sanatorium, near Livermore, In Alameda county, with reference to their proximity to the sea, the influence of ocean winds on their climate, and the density of the population of each, as bearing on their respective merits as places for the treatment of tuberculosis patients. In McCoy v. World's Columbian Exposition, 186 Ill. 356, 57 N.E. 1043, 78 Am.St.Rep. 288, judicial notice was taken of the location of the exposition.
The locations of the county poorhouse and election precinct No. 2 must have been matters of common knowledge in the county; hence the county court was justified in taking judicial notice of their locations.
The county court found that the five men were registered as voters in precinct No. 2 at the time of the general election in 1932, and voted there. It also found, but without any evidence to support the finding, that at the general election in 1930 they voted in the Portland precinct, which now, it appears, is merged in precinct No. 2. The court rejected one of the five votes. As to the other four, it held that, as the voters voted in the Portland precinct in 1930 and in precinct No. 2 in 1932, they must have been registered as voters in those precincts; that, as there is a presumption that the election officers regularly performed their duty, it must be assumed that in 1932 the four voters had their residence in precinct No. 2, within the meaning of the election laws. But it appears that one of the four was admitted to the poorhouse in 1928; two others in 1929; and one on September 19, 1930. The presumption is that they were not only not entitled to vote in that precinct while they were inmates of the poorhouse, but that during that time they were not entitled to register there. Gray v. Huntley, 77 Colo. 478, 480, 238 P. 53. There is no evidence that they had their residence in precinct No. 2 just prior to their becoming inmates of the poorhouse; hence there is no evidence to overcome the presumption that they were not entitled to register and vote in that precinct.
Deducting the four votes from the number credited to the contestee gives the contestor a plurality of three votes. The contestor, therefore, according to the record Before us, was elected sheriff of Ouray county.
There are other votes counted for the contestee that the contestor claims should have been rejected; but it is unnecessary to consider the objections to those votes, for a rejection of the votes would merely increase the contestor's plurality, while counting the votes for the contestee could not give him a plurality.
The judgment is reversed, and the cause is remanded for evidence and a finding concerning the last place of residence prior to their becoming inmates of the poorhouse of those inmates who voted in precinct No. 2.
From the judgment of reversal in this election contest, which involves the office of sheriff of Ouray county, I dissent.
1. By that judgment this court denies the contestee Wood, defendant in error here, the benefit of certain well-recognized and universally accepted presumptions to which he, as the holder of a regular certificate of election, is entitled; for there is here no suspicion or suggestion of fraud. Among these presumptions are (1) the one in favor of the regularity and honesty of conduct on the part of each of the registration, election, and canvassing officers, including registration of the voters, receiving and counting of the ballots, and issuance of a certificate of election to the contestee; (2) the one in favor of the regularity and legality of the election and the result certified; (3) the one in favor of the regularity and legality of the votes cast and the qualifications of those who cast them; and (4) the one constituting prima facie proof that voters have a legal voting residence in the precincts where they respectively vote. Burbank v. Board of Com'rs, 70 Colo. 302, 201 P. 43; Kay v. Strobeck, 81 Colo. 144, 149, 254 P. 150, 152; 20 C. J. pages 238, 239, 240, §§ 322, 323, 324; 9 R.C.L. 1162, § 152; McCrary, Elections, pp. 339, 342, §§ 459, 466a; 1 Jones, Commentaries on Ev. (2d Ed. by Henderson), p. 238, § 146; 2 Nichols, Applied Ev. pp. 1882, 1883, 1884, 1887, §§ 8, 11, 13, 26; Hammon on Ev. p. 96 (§ 26b).
2. The burden of proof was on the contestor. See Price v. Archuleta, 17 Colo. 288, 29 P. 460, and authorities supra. He did not sustain it. His persistent efforts to elicit from the witnesses evidence favorable to himself were futile. It is admitted that, among the persons who cast their ballots for the contestee, five were inmates of the county poorhouse. The rejection of these votes, which the contestor claims are illegal, would leave a bare majority in his favor. However, there is in the record nothing upon which a legitimate argument for such a result can be based. I shall endeavor to show presently that in attempting to make such an argument the majority opinion is not supported by the authorities it cites. The evidence was so overwhelming in sustaining the contestee that the lower court could not have found for the contestor except by invoking, as the majority opinion has invoked, the supposed doctrine of two Colorado cases (Merrill v. Shearston, 73 Colo. 230, 214 P. 540; Kemp v. Heebner, 77 Colo. 177, 234 P. 1068), which the majority opinion obviously considers decisive of this case. In this, I think, it is in error.
3. Before analyzing the two cases just mentioned, I shall discuss the Colorado constitutional provision, article 7, § 4, referred to...
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