MacMillan v. Spencer

• Decision Date: 27 October 1900
• Citation: 28 Colo. 80,62 P. 849
• Parties: MacMILLAN v. SPENCER, County Clerk.
• Court: Colorado Supreme Court

62 P. 849

28 Colo. 80

MacMILLAN v. SPENCER, County Clerk.

Supreme Court of Colorado

October 27, 1900

Review from district court, Arapahoe county.

Proceeding by Charles A. MacMillan against Otis B. Spencer, as county clerk and recorder of Arapahoe county. On review from a judgment of the district court sustaining a judgment of the clerk, sustaining a protest to a nomination. Affirmed.

Wm. L Dayton, for petitioner.

PER CURIAM.

October 21, 1900, there was filed with respondent a certificate of nomination by petition for offices to be filled by the voters of Arapahoe county, and of the Second judicial district. The party name selected was 'Republican Ticket.' Theretofore the Republican party for this county and district had placed in nomination, by convention, candidates for the same offices named in the petition, under the name 'Republican Party.' This party is a political organization entitled to nominate by convention. The nominees by petition were protested before respondent, who sustained such protest. Thereupon petitioner sought to have this action reviewed in the district court. The cause came on for hearing before a judge of that court who had been named as a nominee by the petition, the validity of which is involved in this action. It is conceded that prior to the institution of this proceeding in the district court he had declined to accept such nomination. It appears that he is a candidate on the ticket nominated by the Republican party. Respondent objected to the cause being tried before this judge for the reason that he was a candidate, which objection was overruled. Upon the evidence being submitted, the action of respondent was sustained. From this judgment petitioner brings the cause here for review. It is only necessary to pass upon two questions: (1) Should the judge have tried this cause in the face of the objections made? (2) What judgment should be rendered?

The refusal of the judge to accept the nomination by petition did not remove his disqualification arising from the fact that he was a candidate of the Republican party. Being a candidate of the latter, he was certainly interested in the result, for the reason that the list of nominations in controversy in this case, if awarded a place upon the official ballot, would be inimical to the interests of the party of which he was a candidate, and therefore hostile to his. Parties to a controversy are entitled to have it determined...