People ex rel. Griffith v. Bundy

• Decision Date: 07 January 1941
• Docket Number: 14912.
• Citation: 107 Colo. 102,109 P.2d 261
• Parties: PEOPLE ex rel. GRIFFITH v. BUNDY et al.
• Court: Colorado Supreme Court

109 P.2d 261

107 Colo. 102

PEOPLE ex rel. GRIFFITH v. BUNDY et al.

No. 14912.

Supreme Court of Colorado, En Banc.

January 7, 1941

Original proceeding in mandamus by the People, on the relation of James E. Griffith, against Harry W. Bundy and others, as members of and constituting the election commission of the City and County of Denver, and others, to compel respondents to reconvene and change the abstract of votes for office of Attorney General in certain counties. On demurrers to the writ.

Demurrers sustained and writ dismissed.

HILLIARD C. J., and BOUCK, J., dissenting.

Philip Hornbein, Fred S. Caldwell, Theodore Epstein, and Teller Ammons, all of Denver, for relator.

Gail L Ireland, R. Hickman Walker, Clarence L. Ireland, E. B. Evans Geo. A. Crowder, Robert L. Gee, Donald H. Meyer, Theodore A Chisholm, Malcolm Lindsey, Henry E. Zarlengo, Duke W. Dunbar, and Frank L. Hays, all of Denver, Harry Behm, of Brighton, Leonard M. Haynie, of Alamosa, Charles R. Corlett and Frank Burris Goudy, both of Monte Vista, Mortimer Stone and Alden T. Hill, both of Fort Collins, James D. Lewis and Wm. O. De Souchet, both of Boulder, E. Tyndall Snyder and Robert G. Smith, both of Greeley, C. E. Robinson, Anderson & Anderson, George A. Epperson, George C. Twombly, Clayton C. Rickel, and Stoton R. Stephenson, et al., all of Fort Morgan, William B. Paynter, of Brush and Lionel Fisher, of Fort Morgan, for respondents.

Jean Breitenstein and Erskine R. Myer, both of Denver, amici curiae.

KNOUS, Justice.

This is an original proceeding in mandamus by relator, a candidate for the office of Attorney General in the 1940 election, to compel the boards of county canvassers of seven of the sixty-three counties of Colorado and the election commission of the City and County of Denver, which is vested with kindred functions therein, to reconvene and change the abstract of votes for the office of Attorney General in such counties and in the City and County of Denver by excluding therefrom some 2800 absent ballots designated by name and number in the petition and recounting the remaining ballots of absent electors. Relator prays that respondent boards be ordered to then certify and transmit such amended abstract of votes to the Secretary of State in lieu of the abstract heretofore certified and transmitted by them and that the original abstract be recalled from the Secretary of State. The petition alleges that if such exclusion be made and the remaining absent voters' ballots are recounted by the respondent boards, the result of the 1940 election for Attorney General as heretofore certified by the sixty-three counties of the state, which shows the respondent Ireland the opposing candidate, leading by 199 votes, will be changed and the relator will be elected to such office by a majority of 411 votes.

As a basis for exclusion from the count the petition charges that the challenged absent voters' ballots were illegal and void because of the failure of the voter to comply with what are alleged to be the mandatory requirements of the absent voters' statute (§§ 214, 217 to 220, inclusive, chapter 59, '35 C.S.A., and §§ 215 and 216, chapter 59, 1939 Supp. to '35 C.S.A.) which defects it is said appear on the face of the documents in the hands of the respondent boards. Specifically it is pleaded that of the aggregate of approximately 2800 ballots questioned, in excess of 1800 are defective in this, that either in the application for the absent voter's ballot, or in the affidavit of the voter made when the vote was cast, the voter failed to strike from the regular form provided, one of the following alternative statements therein printed: (1) That he will be absent from his county on the day of said election, or (2) that he is too seriously ill to attend the polls, see, § 215, supra, and permitted both statements to remain in the paper or papers accompanying his ballot; of nearly 100 ballots it is charged on information and belief, that some illegality exists which, however, is not specified since relator alleges the boards involved refused to permit inspection by him after the canvass was completed, see § 217, supra; it is charged that in three of the counties 115 ballots, which were never in the mail, were counted, see § 216, supra, and that four counties counted 370 ballots of voters who failed to duplicate their signatures on the duplicate applications for such ballots, see§ 216, supra. Asserting that the classes of officials authorized to administer oaths out of the state are limited to notaries public and clerks of courts of record by section 6, chapter 115, '35 C.S.A., the petitioner claims the invalidity of some forty ballots in connection with the casting of which a voter absent from the state made affidavit before other officials. See §§ 217, 218, supra. The alleged illegality of the remainder of the questioned ballots in smaller groups are variously and diversely premised on alleged derelictions in the form of the affidavit, the deficiency of signatures thereon, the question of the power or identity of the official receiving the vote or administering the oath, discrepancies between the venue and the jurat in the affidavit attached thereto, nonconformance with the requirements of section 216, supra, concerning postmarks on the return envelopes, and similar objections.

The respondent Ireland, who was served with a copy of the petition before the same was tendered for filing, objected to the filing of such and questioned the jurisdiction of this court to entertain the proceeding. After oral argument and the submission of briefs his objections were overruled and we directed the issuance of the alternative writ returnable at 10 o'clock a. m. December 31, 1940. In response, various returns were filed, the majority of which contained general demurrers. On said last-named day relator asked that the Secretary of State be made a party and restrained from transmitting the abstract of the state vote to the speaker of the House of Representatives as is provided by Article IV, Section 3 of the Colorado Constitution, and Section 250, chapter 59, '35 C.S.A. After oral argument on such motion this court, on December 31st, denied the same and thereupon ordered that the various demurrers to the writ be sustained and the writ dismissed. In such order it was stated that the opinion of the court would be filed later and, accordingly, we now express the reasons for the action so taken. Obviously, although reached subsequently to the disposition of the motion for the joinder of the Secretary of State and injunctive relief, our conclusion that the demurrers should be sustained renders unnecessary a discussion of such motion and we shall consider only whether the extraordinary relief sought can be accorded under the allegations of the petition.

Whether mandamus will lie to review the actions of canvassing or election boards in including or excluding ballots, of necessity depends upon the nature of the act sought to be compelled and the powers, functions and duties of such boards. In conformity with the ordinary rule that mandamus lies to enforce the performance of a ministerial act as distinguished from a judicial or discretionary one, the courts have generally held that where the act of the canvassing board or election board in rejecting or counting ballots is ministerial, mandamus is available to compel or control such act.

Accordingly in Lehman v. Pettingell, 39 Colo. 258, 89 P. 48, upon the authority of Kindel v. Le Bert, 23 Colo. 385, 48 P. 641, 58 Am.St.Rep. 234 (see, also, People ex rel. v. White, 88 Colo. 229, 294 P. 535) we held that the duties of the county board of canvassers in counting and certifying the result of the vote as certified to them by the precinct judges and clerks of election were purely ministerial acts, and by mandamus compelled certification of the vote by the county board in accordance with the certificate of the precinct officers. However, where the questioned action of such boards is deemed to involve judgment or discretion, it is equally certain the board's determination is conclusive so far as mandamus as a method of review is concerned, and the writ will not lie. Leary v. Jones, 51 Colo. 185, 116 P. 130; Orman v. People,...