Leary v. Jones

• Decision Date: 05 June 1911
• Parties: LEARY et al. v. JONES.
• Court: Colorado Supreme Court

116 P. 130

51 Colo. 185

LEARY et al. v. JONES.

Supreme Court of Colorado, En Banc.

June 5, 1911

Error to District Court, City and County of Denver; Hubert L Shattuck, Judge.

Mandamus on petition of Helen Brown Jones against Frank Leary and another. Judgment for plaintiff and defendants bring error. Affirmed.

Charles S. Thomas and Theodore H. Thomas, for plaintiffs in error.

Gail Laughlin, for defendant in error.

HILL J.

It appears from the pleadings that the plaintiffs in error (who were the respondents in the court below), with one Moran constituted the judges of election in precinct No. 3 for the school election held in the city and county of Denver on the 3d day of May, 1909; that, after the closing of the polls all the judges of election from the 31 precincts (which constitute said school district), including the respondents and Moran, immediately repaired to one of the voting places, to wit, the East Denver High School, and then and there proceeded to count the ballots cast in their respective precincts. It is alleged, and not denied, that the judges for all of the other precincts immediately after having counted the ballots in their respective precincts reported their results to the secretary of the school board, who entered such returns upon a tally sheet, to which all the other judges affixed their respective signatures, but that the respondents, after the count of the ballots found in the box in precinct No. 3, refused to make a report of the result of said count to the secretary of the board or at all; that Moran did report in writing to the secretary the result of said count, which report the respondents refused to sign and have ever since so refused to do; that the board of directors refused to accept the report from precinct No. 3 signed by Moran, as a proper return, and have denied to the relator (defendant in error here) the right to participate in the deliberations of said board, after proper and lawful demand was made therefor, etc. Upon account thereof she instituted mandamus proceedings against the respondents to compel them to certify the result of the count in their precinct, alleging, in addition to the foregoing, that the result of the count of said respondents and Moran for said precinct was a certain number for each of three candidates, naming them and giving the number for each, followed with the total vote of the district, which, when this precinct was included, showed that the relator had been elected, and that, if the result of said election in said precinct was so certified, the total would then show that she was elected as a member of the directors of said board, entitled to qualify, etc. A demurrer was sustained to the answer. The respondents elected to stand by their answer. Judgment was in favor of the relator, making the alternative writ peremptory, commanding the respondents, within five days, to sign the returns from precinct No. 3 of the vote cast in said precinct at the election held on the 3d day of May, 1909, theretofore signed by said Moran. The respondents bring the case here for review upon error.

The answer, including its admissions, and by its failure to deny certain allegations of the relator, sets forth only two defenses. In substance, the first and principal defense is that, while it is true the respondents and Moran acted as said judges of election, 365 persons and no more cast ballots in said precinct and deposited the same in the ballot box prepared and used for that purpose at said election; that their names were duly recorded upon the pollbook or voters' list kept by the clerks of said election precinct; that immediately after the polls were closed all three judges went to the East Denver High School for the purpose of counting and canvassing the ballots; that, when they opened the ballot box, they found therein 1,163 ballots, each of which was in exact similitude of the official ballot voted at the several precincts, or 798 excess papers or ballots. By failing to deny, they admit the allegation that the ballots disclosed upon their faces the result as set forth by the relator, but they allege that, on account of the above facts, they were unable to ascertain or determine which of said papers were ballots cast by the 365 voters who voted in said precinct at said election and which were not such ballots, for which reasons they allege they made a return to the board containing the above statement, including the fact that they were unable to determine what ballots were good and what ones fraudulent, and therefore made return that no valid election was held in said precinct, and that they ought not to be required to furnish a false and fraudulent report and return. As a part of this defense, they set forth the further facts that, eliminating this precinct, another candidate other than the relator had received the highest number of votes for such office, and that there being no election in this precinct, account of such frauds, the other candidate, naming him, and not this relator, was elected to said office and entitled to the seat.

The second defense is that, inasmuch as the respondents have fulfilled their mission, made their report to the board of school directors, surrendered the ballot box and poll list, and departed their several ways, their offices as judges of the school election absolutely ceased, and that since said time they have not been, nor are they now, judges of the school election.

The first question necessary to consider is the duties of judges of election. It is claimed by the relator that they are purely ministerial, and, if performance is refused, it may be compelled by mandamus. In support of this position, we are referred to 15 Cyc. p. 379, wherein it is stated 'Inspectors and judges of election are ministerial officers, and, where they neglect or refuse to make a return or make an erroneous or improper one, they may be compelled by mandamus to perform their duty.' Also to McCrary on Elections (4th Ed.) § 264, wherein that learned author says: 'The doctrine that canvassing boards and return judges are ministerial officers possessing no discretionary or judicial power is settled in nearly or quite all the states.' Also, to 26 Cyc. p. 278, wherein it is said: 'It is very generally held that certifying or declaring the results of an election is a ministerial duty which may be compelled by mandamus, and this, it has been held, although the refusal to act was on the grounds of fraudulent voting.' Also to the case of People ex rel. v. Bell et al., 119 N.Y. 185, 23 N.E. 536, wherein that court said: 'We cannot hold otherwise as to inspectors of elections than that they are under the provisions of the election law made ministerial officers wholly, for their duties are pointed out by the law definitely.' The respondents contend that for the purpose of determining the result in the precinct and certifying the returns the decision rests solely with the judges of election as to the result of the votes, what is legal, and what is not, for whom cast and for whom not, and the right to so certify, and that in the performance of these duties their acts are judicial and not ministerial, that it requires the exercise of official judgment, the sound discretion of the person in whom the duty is confided, and that in all such cases mandamus will not lie. To support this position, they cite People v. Reardon, 49 Hun. 425, 3 N.Y.S. 560, wherein it is said: 'A majority made and signed and filed with the city clerk the result as found by them. This action on their part was judicial in its nature. A writ of mandamus does not lie to compel an officer, exercising judicial functions, to make any particular decision, or to set aside a decision already made.' They also cite the case of People ex rel. Haverly v. Hanes et al., 44 Misc. 475, 90 N.Y.S. 61, wherein the court said: 'Inspectors of election have both judicial and ministerial duties to perform. In determining what ballots shall be counted for or against any candidate, or any question voted on, or what ballots shall be rejected, they act judicially. They may perhaps be required by mandamus to perform merely ministerial acts in a particular way, and they may also be required to exercise their judicial functions; but they cannot be required by a common-law mandamus to decide in a particular manner. * * * It is the performance of a judicial act on the part of the inspectors which is complained of in this case, not the failure on their part to act judicially, but the judicial conclusion reached by them; and it is this judicial conclusion which it is sought to have changed. The inspectors have performed the judicial act complained of. They may not have reached a correct conclusion, but they have acted and exercised their judgment, and the conclusion reached by them cannot be reviewed herein.' Also, the case of Dent v. Board of Commissioners, 45 W.Va. 750, 32 S.E. 250, wherein the court said: 'One canvasser says that it is correct, and satisfies his judgment and conscience. The other says it is not correct, and does not satisfy his judgment and conscience. Shall he be compelled to give an assent under such circumstances? * * * They act judicially in determining that the ballots, pollbooks, and certificates of the election returns are genuine or altered.' They also cite, as supporting their position, the cases of Metz v. Maddox, 189 N.Y. 461, 82 N.E. 507, 121 Am.St.Rep. 909; Cannon v. Board of Canvassers, 24 R.I. 473, 53 A. 637; Corbett v. Naylor, 25 R.I. 520, 57 A. 303; County Judge v. Kenner, 105 Ky. 517, 49 S.W. 330, 20 Ky. Law Rep. 1343. From a careful examination of the authorities cited, we are of opinion that all of those referred to, when limited to the particular matters intended to be covered, are in the...