Londoner v. People ex rel. Barton

• Decision Date: 06 February 1891
• Citation: 26 P. 135,15 Colo. 557
• Parties: LONDONER v. PEOPLE ex rel. BARTON.
• Court: Colorado Supreme Court

26 P. 135

15 Colo. 557

LONDONER v. PEOPLE ex rel. BARTON.

Supreme Court of Colorado

February 6, 1891

Error to district court, Arapahoe county.

At a muncipal election held in April, 1889, relator, Barton, and respondent, Londoner, were opposing candidates for the office of mayor of the city of Denver. The returns showed an apparent majority for respondent, who was duly declared elected, received his certificate of election, took the requisite oath, and entered upon his official duties. Relator at once instituted the present proceeding, and a demurrer to his complaint or petition was sustained; but on a former review by the supreme court (22 P. 764) it was held that while an election contest proper was, under the circumstances, not maintainable, the pleading in question contained averments sufficient to lay the foundation for a proceeding in the nature of quo warranto, and that in pursuance thereof the title of respondent might, on behalf of the people, be thus investigated. The cause went back to the district court, the issue mentioned was made, and upon trial, judgment of ouster was rendered against respondent. To reverse this judgment the present writ of error was sued out.

The special findings of the court contain the following, among other, conclusions of fact: 'That with respect to the conduct of said election upon said 2d day of April, 1889, in the 18th, 19th, and 30th precincts of said city, and in each and every of said three precincts, upon the evidence introduced upon the trial of said cause, and upon the findings made by the jury with respect thereto, the court finds that certain persons combined and confederated together to procure the casting of illegal ballots for the defendant for said office of mayor; that such persons did procure to be cast for the defendant for the office of mayor fraudulent and illegal ballots in the 18th precinct, to the number of about 210, in the 19th precinct about 220, and in the 30th precinct about 250; that it is not possible to estimate or calculate with reasonable certainty the number of illegal ballots cast in either the 18th, 19th, or 30th precincts for the defendant for the office of mayor ; that fraud was practiced in each of said three precincts in the conduct of said election, and such fraud culminated in the deposit of illegal votes in the ballot-boxes in each of said precincts, and the same were counted, returned, and canvassed; that such illegal votes amounted to about the following in number, to-wit: In the 18th precinct, to about 100 illegal votes; in the 19th precinct, to about 100 illegal votes; and in the 30th precinct, to about 150 illegal votes; that the casting counting, and returning of said illegal votes was done with the knowledge of some of the election judges in each of said precincts, and the acts of such judges of election in so receiving, counting, and returning such illegal votes were knowingly, willfully, and deliberately done; that the conduct of the judges of election at each of said three precincts was not fair or faithful in receiving legal votes, and rejecting illegal votes; that fraud was practiced in the conduct of said election in each of said three precincts, and some of the judges of election participated in such fraud in each of said three precincts; that the judges of election receiving ballots in each of said there precincts connived at consented to, acquiesced in, and knowingly permitted the casting of illegal votes at said election for the office of mayor; that the judges of said election, receiving ballots in each of said three precincts, negligently and carelessly permitted the casting of illegal ballots for the office of mayor; that the judges of election, receiving ballots in each of the said three precincts, intentionally disregarded challenges offered against illegal votes, and such disregard led to the deposit of illegal votes in each of said three precincts; that the judges of election, receiving ballots in each of said three precincts, received votes without challenging the persons offering them, or requiring such persons to be sworn after receiving reasonable and credible notice that such persons were not entitled to vote, or that they were voting upon the names of other persons, or that they had voted before; that votes were cast at said election for the defendant for mayor by persons on the names of persons other than themselves, in each of said three precincts, to the number of about 100 in the 18th, and about 100 in the 19th, and about 150 in the 30th, precincts; that the judges of election in the 30th precinct refused to permit persons entitled thereto to inspect the register list of said precinct for the purpose of preparing a challenge book; that the police officers, or some of them, who were present at the polling places in each of said three precincts, connived at the casting of illegal votes for mayor, and interfered to prevent the challenging of illegal voters, and by force or threats prevented the challenging of illegal votes at said election; that the polling place in the said 30th precinct was so boarded up that the voters, when casting their ballots, could not see the ballot-box or the persons in the room other than the judge who was receiving the ballots, nor could the bystanders or citizens immediately in front of the polling place see the ballot-box or the persons in the room other than the judge who was receiving the ballots, nor could the voters when voting, nor the bystanders or citizens immediately in front of the polling place, see what disposition was made of the ballots after they were handed to the election judge; that said polling place was so boarded up by the order of the then chief of police of the said city of Denver, and in the interest of the candidacy of the defendant for mayor; that the public registry list in said 30th precinct was torn down and taken away by a police officer of said city of Denver, and working at said election in the interest of defendant, for the purpose of preventing persons from making a challenge book to be used at said election that Matthew Finehart and one _____ Wenning acted as clerks of election at said election in said 30th precinct, and neither said Finehart nor said Wenning was an elector in or of said 30th precinct; that in said said 18th precinct during the progress of said election, the said Elias R Barton, as a candidate for said office of mayor, presented to one of the judges of election in said precinct, and who was then receiving ballots thereat, a written request, addressed to the judges of election at said precinct, that J. N. Douglas, a friend of said Barton, be permitted to be present within the polling place while the ballots were being received and counted, and said judge peremptorily refused and denied such request.'

Civil Code Colo. § 173, provides: 'An issue of law shall be tried by the court, unless it be referred, as provided in the title in regard to references. In actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due on contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived or a reference is ordered, as provided in this Code. In other cases, issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury, or to be referred to a referee, as provided in this Code.' Section 289 provides: 'An action may be brought by the district attorney in the name of the people of this state, upon his own information, or upon the relation and complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise, within his district in the state; and it shall be the duty of the district attorney to bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor; and, in case such district attorney shall neglect or refuse to bring such action upon the complaint of a private party, such action may be brought by such private party upon his own relation, in the name of the people of the state.'

Under Civil Code, § 289, a defeated candidate may maintain quo warranto though not entitled to the office against an opponent who is not entitled to the office.

Lucius P. Marsh and L. C. Rockwell, for plaintiff in error.

Pence & Pence and Sam P. Rose, for defendant in error.

HELM, C.J., ( after stating the facts.)

The extraordinary conclusions of fact embodied in the findings of the trial court were predicated upon a solemn, fair, and extended judicial investigation, and are in substantial accord with the answers of the jury to questions propounded. We are bound to regard them as amply sustained by the proofs-- First, because only a small portion of the evidence is before us, and inquiry on our part into its sufficiency is therefore precluded; and, second because this sufficiency is admitted, the record reciting that 'respondent makes no point, and does not claim, that the verdict of the jury is contrary to the evidence.' The findings mentioned refer to frauds perpetrated in three specified election precincts within the city of Denver. The following is a brief epitome of these findings in so far as they bear upon one branch of the subject in hand: That the conduct of the election judges was neither fair nor faithful; that they knowingly, willfully, and deliberately received, counted, and returned illegal votes for respondent; that they purposely disregarded challenges offered against fraudulent votes; that they refrained from challenging or...