Kindel v. Le Bert

• Decision Date: 18 January 1897
• Citation: 23 Colo. 385,48 P. 641
• Parties: KINDEL v. LE BERT.
• Court: Colorado Supreme Court

48 P. 641

23 Colo. 385

KINDEL v. LE BERT.

Supreme Court of Colorado

January 18, 1897

Appeal from district court, Arapahoe county.

Proceeding by George J. Kindel against Richard Le Bert to contest the election of the latter to the office of county clerk of Arapahoe county, Colo., for which contestant was also a candidate. From a judgment in favor of the contestee contestant appeals. Affirmed.

At the general election in November, 1895, Richard Le Bert and George J. Kindel were opposing candidates for the office of county clerk of Arapahoe county. Upon the face of the returns, Le Bert was declared elected by the canvassing board; and Kindel instituted this proceeding in the county court of Arapahoe county, under our contested elections act (Sess. Laws 1885, p. 193), against Le Bert, as contestee, to set aside the election as declared, and to obtain judgment declaring contestor elected to the office. The original voluminous statement of the contestor, filed in the county court on the 30th of November, 1895, specifically charges that legal votes cast in the various precincts of the county for the contestor were improperly and fraudulently rejected by the judges of election; that votes which, for various reasons, were illegal, were therein cast and counted for the contestee; that the latter, by bribery, intimidation, and corruption, and other nefarious means, received illegal votes that ought not to have been counted for him, and prevented legal votes from being cast and counted for contestor; that the contestee was guilty of various designated acts of fraud in the matter of the distribution of the ballot boxes and ballots to the various election boards; and that in one precinct the judges were guilty of fraud. In the twenty-ninth specification of the statement is a general allegation that the contestee, as county clerk, performed certain acts in and about the conduct of the election which the statute itself imposes upon the county clerk, but which, under the facts of this case, as contestee was himself a candidate for re-election, were fraudulent and void; particularly were those acts void which he performed in assisting in the canvass of the votes upon the returns made to him by the various election boards. This is followed by another general charge of tampering with and altering the returns by the contestee after they were received by him, as county clerk from the judges of election. By reason of all of which the contestor says he was cheated and defrauded out of the election, and that in truth and fact he received a majority of the legal votes cast, and was entitled to be declared elected. To this statement, on the 10th of the following December, the contestee filed his answer, specifically denying all the charges made against him, except those, if any there be, set forth in the twenty-ninth specification of the statement, and setting up counter charges of frauds and wrongdoings of a character as sweeping and specific, and just as corrupt and flagrant, as were those charged in the statement of the contestor; the contestee alleging that his majority of the legal votes cast was in fact in excess of that appearing upon the face of the returns. These new matters in the answer in turn were denied in the replication which was filed on the 18th of December. There is no order in the record setting the case for trial, although, from the subpoenas which have been certified up, it seems that the county court fixed as the day for trial the 4th of February 1896, although trial was not then begun. After the issues had thus been made up, the counsel who originally were acting for the contestor withdrew, and new counsel appeared for him. On the 18th of February, upon application of the contestor, alleging prejudice of the county judge, the cause was certified to the district court of the Second judicial district of Colorado, embracing Arapahoe county only. There are five judges of the court, each presiding in a separate division. On the 21st of February the new counsel for contestor, appearing in the division to which this proceeding was assigned by the clerk, claimed that it was improperly there, and asked that it be sent to another division, in which, under the standing rules of the court, it ought to have been filed in the first instance. The request of contestor, as made, was denied, but the presiding judge sent the cause to another division, where he decided it belonged. Before the judge of the latter division, where the cause was thus sent, the contestor again, on February 24th, presented his application, asking that the cause be sent to that division which contestor claimed had jurisdiction of it; and his application was again denied. Thereafter it appears that the five judges of the court, as properly they might do, agreed among themselves that neither one should hear this cause, and so the cause was set for trial April 20th, and Hon. C. C. Holbrook, judge of the Twelfth judicial district of this state, was requested by Judge Palmer, who was presiding in the division of the court where the cause was pending, to try the same. Judge Holbrook complied with this request, and no objection to him was made by the contestor. On the day as thus set for trial, the contestor made an application to the court (Judge Holbrook presiding) for leave to file an amended statement of contest. It would seem from the record, although it is somewhat uncertain, that like application was made before the county court on the 12th of February, after the issues were made up and the day for trial had passed, for leave to file this amended statement; but inasmuch as, by consent of the parties, all interlocutory orders of the county court were vacated, and have not been inserted in the record, it does not clearly appear what, if any, ruling the county court made. This amended statement does not purport to be merely an amendment of the original causes of contest set up in the original statement, nor was its design to perfect or supplement any of the same; but by far the larger part thereof sets up, as causes of contest, grounds that were not in the original statement at all, while other portions charge additional fraudulent acts of the same general nature as those contained in some of the original specifications,--such, for example, as that the board of county commissioners of Arapahoe county and the contestee, as clerk, were guilty of malconduct, fraud, and corruption in the making of the registration of electors for said election, and in the appointment of judges, and in the registration of illegal voters; and such charges as that the county clerk certified upon the registry lists which were sent out to the judges the names of persons not entitled to be thereon, and in issuing certificates of registration upon the day of the election to persons not entitled to receive them, and various charges of fraud against the election judges, were each and all distinct causes of contest not appearing in the original statement. The court denied leave to file the amended statement, upon the ground that the special proceeding under which this contest must be determined does not authorize any amendment of the pleadings. Thereupon proof was made by the contestor, under his original statement, that he was an elector. He then asked permission to open the ballot boxes and inspect and count the ballots. As a condition precedent, the court required him first to introduce some evidence tending to establish some of the frauds alleged, and the boxes would then be opened, but the contestor refused to avail himself of this offer. The court further ruled that the boxes might then be opened for the purpose of ascertaining from the ballots if any of the mistakes complained of had been committed. This offer was likewise declined by the contestor, and he refused to offer any further evidence. The court then found the issues for the contestee, and it appearing from the pleadings that, upon the face of the returns, Le Bert had a majority of the votes, and held the certificate from the canvassing board, he was thereupon adjudged to be duly elected, and entitled to hold the office in question. To reverse this judgment, contestor has appealed to this court.

H. J. Hersey, H. B. O'Reilly, and E. F. Richardson, for appellant.

Felker & Dayton, for appellee.

CAMPBELL J. (after stating the facts).

Although the contestee does not concede the power of the county court to transfer this proceeding to the district court, or the jurisdiction of the district court to hear and determine this contest, he has not assigned for error the act of the former in certifying the cause to the latter, or the assumption by the latter of such jurisdiction. While jurisdiction of the subject-matter cannot be conferred by waiver or consent of the parties, yet, as counsel have not discussed either of these points, we do not feel called upon, in the absence of full argument, to determine questions of such importance. We therefore proceed directly to a consideration of the errors assigned. This must not be taken either as an affirmance or disapproval of said respective rulings of the lower courts. The errors specified are that the case was improperly assigned; that the court erred in refusing leave to file the amended statement, in refusing a recount of the ballots, and in denying contestor's motion for judgment upon the pleadings.

1. Except in the brief of counsel, we are not advised that there is a standing rule of the district court for the assignment of causes to the different divisions. If that is so, and it was violated by the district court, to entitle the party aggrieved to a review of the ruling complained of it is indispensable that the rule be embodied somewhere in the transcript of the record, for rules prescribed by...