People ex rel. Johnson v. Earl

• Decision Date: 03 February 1908
• Citation: 42 Colo. 238,94 P. 294
• Parties: PEOPLE ex rel. JOHNSON v. EARL et al.
• Court: Colorado Supreme Court

94 P. 294

42 Colo. 238

PEOPLE ex rel. JOHNSON v. EARL et al.

Supreme Court of Colorado, En Banc.

February 3, 1908

Appeal from District Court, Boulder County; James E. Garrigues Judge.

Information in the nature of quo warranto by the people on the relation of Oscar A. Johnson, a resident, citizen, elector, and taxpayer of the city of Boulder, against Isaac T. Earl and others. From a judgment of dismissal on sustaining demurrers to the information, relator appeals. Affirmed.

Oscar A. Johnson (C. A. Prentice, of counsel), for appellant.

Joseph T. Atwood and Cassius M. Eby, for appellees.

MAXWELL J.

Information in the nature of quo warranto. This proceeding was brought by appellant, relator, to test the right of respondents to the offices of mayor, city clerk, city treasurer, and aldermen of the city of Boulder, which they were holding under and by virtue of an election held April 2, 1907. The questions presented are (1) the regularity of the acts of the registration committees preceding the election, and (2) the constitutionality of Sess. Laws 1905, p. 188, c. 100, and the amendment thereof (Sess. Laws 1907, p. 321, c. 147), as applied to cities of the second class having a greater population than 5,000 inhabitants. The information was in two counts. A general demurrer to each count was sustained. Relator electing to stand on his complaint, judgment of dismissal was rendered, from which is this appeal.

What is Commonly known as the 'Booth Registration Law' (Sess Laws 1905, p. 188, c. 100), so far as pertinent to the questions here presented, provides for the appointment, by the county clerk of each county on the second Tuesday of July, 1906, and upon the same day every year thereafter, of a committee of three qualified electors in each precinct of the county, who shall act as a registration committee, and shall between 45 and 35 days preceding an election, make a house to house canvass of the precinct, for the purpose of making a registration of the qualified electors of the precinct, and on the 30th day preceding the election shall sit at a centrally located place within the precinct for the purpose of making registration, and shall file with the county clerk three certified copies of the registration lists made by them, and the books of original registration, at least 27 days preceding the election. Provision is also made for the purging of the registration lists of fraudulent registration, between 25 and 18 days preceding the election. The title of the act and its express provisions limit its operation to cities or municipalities with a greater population than 5,000 inhabitants, and it expressly provides that no person shall be permitted to vote at any election (excepting the election of school trustees) held in any election precinct included wholly or partially within the limits of any city with a greater population than 5,000 inhabitants, without first having been registered within the time and in the manner and form required by the provisions of the act. March 2, 1907, an act to amend subdivision 2 of section 3 of the act of 1905 (Acts 1905, p. 190, c. 100) was approved. Acts 1907, p. 321, c. 147. The amendment is as follows:

'The registration committee shall consist of three qualified electors in each precinct, who shall be appointed by the county clerk for each of the precincts included wholly or partially within the limits of any city with a greater population than five thousand inhabitants, biennially as heretofore, on the first Tuesday in July, beginning with the year 1906, and he shall make and file in his office a list of each and all persons so appointed, their names, business, post office and residence addresses, and the precinct and ward within which each lives: Provided, that in all such cities where the precinct lines for a city election are different from the precinct lines for a county election, the county clerk, at the same time and in the same manner, shall appoint additional or different registration committees for each of the precincts for such city election: Provided, further, that immediately upon the passage of this act, the county clerks of the different counties in this state, within which are cities with a greater population than five thousand inhabitants, may appoint such registration committees for such city elections to be held in 1907, the names to select from being immediately certified to such county clerks by the county chairman of the political parties as hereinafter defined and provided for in county elections.

'Sec. 2. All elections held under the provisions of this act, whether for the purposes of electing city officers or the issuance of bonds, shall be deemed to be regular and legal.'

By virtue of an emergency clause this act took effect March 2, 1907. The act of 1907 seems to have been made necessary by the failure of the boards of county commissioners of certain counties and the city councils of certain cities situate therein to conform the lines of election precincts in the cities to the lines of election precincts outside the cities prior to the first Tuesday of July, 1906, so that no registration committees were appointed by the county clerks on that day, under the act of 1905. The county clerk of Boulder county, within which county is the city of Boulder, appointed registration committees, for the precincts within the city, March 6, 1907, which committees proceeded to make registration lists of all the qualified electors within the city in strict conformity to all the requirements of the act of 1905, except as to the time within which they were by that act required to perform their several duties, commencing the house to house canvass and registration 27 days preceding the election, instead of 45 days, and returning to the county clerk the original registration books 15 days before the election. The registration so made was used at the election held in the city of Boulder April 2, 1907, at which election respondents were elected to their several offices, from which this proceeding seeks to oust them.

The gist of relator's complaint, embodied in his first count is thus stated: 'That said boards of registration were not appointed by said county clerk within the time prescribed by law for the same to be appointed; that said registration boards did not commence their duties within the times prescribed by law; that said registration boards did not make the lists within the times prescribed by law; that said registration boards did not return the original books of registration to the county clerk of Boulder county within the time prescribed by law, nor was any such registration of voters in said city or in the separate wards thereof made in compliance with the law; that, by reason of such neglect and failures to follow said statute and to make the registration as required by the law in that behalf made and provided, such pretended registrations were illegal and of no effect, and the pretended election held on the second day of April, 1907, in said city and in the separate wards thereof was unlawful, null, and void.' The complaint further alleges, in substance, that by reason of the failure of the several registration committees to perform the various acts required of them within the time designated by the law of 1905 large numbers of the citizens and qualified electors of said city were deprived of the right of registration and the right to cast their votes at the election, naming three alleged electors who were so deprived of such right; that, if such registration had been commenced 45 days before the election, the citizens named and other citizens and qualified electors could and would have registered, and could and would have voted at said election, and could and would have voted against the election of respondents herein. The complaint does not allege that any qualified elector who applied for registration was denied registration, or that persons were registered and allowed to vote who were not qualified electors, or that the failure to make the registration within the time required by the law of 1905 resulted in a loss of the right to vote to a sufficient number of electors to have changed the result of the election, or that any qualified elector was deprived of the right to vote at the election, or that any fraud or corrupt practices were indulged in by the registration committees or the judges of election which in any manner affected the result of the election, or defrauded relator of any of his constitutional rights.

Upon this branch of the case relator's contention is: (a) That the registration committees were not appointed at the time designated by the law of 1905, to wit on the first Tuesday of July, 1906, and therefore the appointment was invalid. This contention is disposed of by the provisions of the act of 1907 authorizing the county clerk to appoint registration committees, in the municipalities therein designated, immediately upon the taking effect of the act. (b) That all the acts of the registration committees in making the registration lists used at the election of April 2, 1907, were absolutely void because none of such acts were performed within the time preceding the election required by the act of 1905. In support of this contention it is most strenuously insisted that all of the requirements of the act of 1905 are mandatory, and that failure to strictly comply with any of the requirements within the time limited by the act will result in the absolute disfranchisement of the voters. Section 1 of the act (Sess. Laws 1905, p. 188, c. 100) is relied upon in support of this position. It reads: 'No person shall hereafter be permitted to vote at any general or special election, whether national, state, district, county or city (excepting election...