People ex rel. Eaton v. District Court of Arapahoe County

• Decision Date: 08 October 1892
• Citation: 31 P. 339,18 Colo. 26
• Parties: PEOPLE ex rel. EATON v. DISTRICT COURT OF ARAPAHOE COUNTY et al.
• Court: Colorado Supreme Court

31 P. 339

18 Colo. 26

PEOPLE ex rel. EATON v. DISTRICT COURT OF ARAPAHOE COUNTY et al.

Supreme Court of Colorado

October 8, 1892

Application by the people of the state of Colorado, on the relation of Edwin J. Eaton, for a writ of prohibition. Writ denied.

The other facts fully appear in the following statement by HAYT C.J.:

A convention of the Democratic party of the state of Colorado recently convened in the city of Pueblo. This convention appears to have been regularly called in accordance with the practices of the party in such cases for the purpose of nominating presidential electors, and a full state ticket, to be voted for at the approaching election. Upon the assembling of this convention, a disagreement arose between the members. This disagreement caused a division of the convention into two bodies, each claiming the right to act for and on behalf of the Democratic party of the state. One of these conventions organized by the election of T. J. O'Donnell as president, and H. W. Havens as secretary, and the other by the selection of Benjamin F. McDaniel as the presiding officer, and S. Harrison White as secretary. Both of these conventions proceeded to make nominations, and the same were certified in due form to the secretary of state within the time provided by law. In one certificate it is certified that T. J. O'Donnell was the presiding officer, and H. W Havens the secretary, of a convention of the Democratic party of the state of Colorado held at Pueblo, in said state, on the 12th day of September, 1892; and in the other it is certified that Benjamin F. McDaniel was the presiding officer, and S. Harrison White the secretary, of a convention of the Democratic party of the state of Colorado held at Pueblo, in said state of Colorado, on the 12th and 13th days of September, 1892. To the filing of each of these certificates objection was thereafter made, in the nature of a verified protest signed and sworn to. The protest against the filing of the O'Donnell certificate is in substance as follows: That the persons nominated as electors by the convention presided over by Mr. O'Donnell are pledged to vote for James B. Weaver for president, and James G. Field for vice president, candidates of the People's party, and are pledged to vote against the candidates of the Democratic party for president and vice president, and are therefore not the nominees of, and do not represent, the Democratic party whereas the electors nominated by the convention presided over by McDaniel are pledged to vote for Grover Cleveland for president, and Adlai E. Stevenson for vice president, and are therefore, as claimed by said protest, the representatives and nominees of the Democratic party. Afterwards such proceedings were had before the secretary of state upon these protests as resulted in the decision of the secretary to the effect that the names of the McDaniel electors should be certified to the various county clerks of the state to be printed upon the official ballots, and that the names of the electors chosen by the O'Donnell convention were not entitled to be so certified. A further result of these two conventions was the putting in nomination of two complete state tickets. The O'Donnell branch of the Democratic party, being dissatisfied with the decision of the secretary of state, commenced proceedings in the district court for the purpose of enjoining the secretary from certifying the nominees of the McDaniel convention, and for the further purpose of obtaining a writ of mandamus directed to the secretary to compel him to certify the nominees of the O'Donnell convention so that their names alone might be printed upon the official ballots. To the petition in the district court the secretary in due time filed his answer. In this answer the jurisdiction of the district court is denied and the acts of the secretary in the premises set out at length. The district court having overruled the plea to its jurisdiction, the secretary made application to this court for a writ of prohibition, in order that the question of jurisdiction of the district court might be determined. The application was made upon notice, and a full hearing had thereon.

James H. Brown, A. B. McKinley, John M. Waldron, and Caldwell Yeaman, for relator.

Thomas M. Patterson and T. J. O'Donnell, for defendant.

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

The controversy in this case is between two branches of the Democratic party. It is precipitated upon the courts in the heat of a political campaign, and at a time when party and factional feeling is at its height. This statement is sufficient to show that the question to be determined is one that the courts would gladly avoid, if it were possible to do so without being recreant to duty. However, as the issue is forced upon us, it must be met and determined the same as other controversies. The contest arises under what is familiarly known as the 'Australian Ballot Law,' enacted at the last session of the legislature. In its decision is involved the right to have printed upon the official ballots the names of the nominees of two separate conventions, both claiming to represent the Democratic party of the state of Colorado. The contention of relator in this proceeding is that the secretary of state has jurisdiction, under the act, to hear and determine the controversy between these divisions of the Democratic party, and that his decision thereon is not subject to review.

The first question to be determined, therefore, has reference to the powers and duties of the secretary of state in case objections are filed to nominations. The Australian ballot system, in one form or another, has been adopted in many of the states of this Union. The act as it exists to-day in the island of its birth, and from which it derives its name, has, however, been modified and changed to such an extent that it is impossible to find anything more than a general similarity between the acts of the various states. This legislation is the result, however, of an effort in the interest of ballot reform, and therefore commends itself, not only to the courts, but to all those solicitous for the purity of the ballot. No doubt the act as found upon the statute books of this state is crude in many particulars, and perhaps totally silent upon matters which the legislature should have put at rest by positive enactment. Experience will doubtless suggest changes, but until such changes are made it is the duty of the courts to uphold the integrity of the act, and to so shape their decisions as to best advance the interests of ballot reform. The first section of the act provides that 'all ballots cast in elections * * * shall be printed and distributed at public expense.' By the terms of the act a candidate for office can only receive the suffages of voters in case his name is placed upon the official tickets, and the names of candidates for state or national offices can only be placed upon such official tickets when the names are duly certified by the secretary of state to the county clerks. This brief statement will suffice to show the importance of the questions now presented.

In determining the powers of the secretary of state in the present instance, it will be well to note the far-reaching effect of the authority claimed for him by his counsel. It is contended that, when objections are filed to nominations, it is the exclusive province of the secretary to pass upon such objections, and that his decisions thereon are final. If this be true then in the present case, as objections were filed to both sets of nominations made by the Democratic party, the secretary of state, by his decision, might have prevented either ticket from being recognized at the approaching election. If the secretary is correct in assuming that by the provisions of the act he was authorized to reject the nominations made by the O'Donnell convention, his power to reject the nominees of the McDaniel wing of the party must also be conceded. If this power is lodged in the hands of the secretary, it is a most unusual investiture of power. Certainly, such power should not be inferred from any doubtful or ambiguous language to be found in the act. Counsel agree that it was unwise on the part of the legislature to clothe the secretary of state--a mere ministerial officer--with the powers claimed for him in this case, but say that the remedy should come from the legislature, and not from the courts. The fact that the power is extraordinary, and its exercise liable to result in the most stupendous consequences, calls for a critical examination of the act, in order that we may determine at the outset whether or not this unusual power has been conferred by its terms upon a purely ministerial officer. The secretary of state, in this instance, is exercising, or attempting to exercise, a quasi judicial power. The common law furnishes no precedent for the exercise by such an officer of the power claimed, and we must look to the statute for such authority, if it exists. The section of the statute more particularly relied upon by the officer in the present controversy is section 13 of the act under consideration. This section reads as follows: 'Sec. 13. All certificates of nomination which are in apparent conformity with the provisions of this act shall be deemed to be valid, unless objection thereto shall be duly made in writing within three days after the filing of the same. In case such objection is made, notice thereof shall forthwith be mailed to all candidates who may be affected thereby, addressed to them at their respective post-office addresses, if any, or places of residence, as given in the certificate of nomination. The officer with whom the original certificate was filed shall pass upon the...