People ex rel. Miller v. Tool
| Decision Date | 03 July 1905 |
| Citation | 86 P. 224,35 Colo. 225 |
| Parties | PEOPLE ex rel. MILLER, Atty. Gen., et al. v. TOOL et al. |
| Court | Colorado Supreme Court |
Bill by the people, on the relation of N.C. Miller, Attorney General and others, against John Tool and others. Decree for petitioners.
The purpose of this proceeding, instituted by the people of the state of Colorado, on the relation of the Attorney, General and others, petitioners, is to obtain such relief as will secure an honest election in certain precincts of the city and county of Denver, by preventing frauds which, it is said certain of the respondents will commit at the general election to be held on the 8th day of November, 1904, and which, in a measure, will be consummated by frauds already perpetrated. To this end, it is sought to obtain an order of this court which will require these respondents to observe the law relating to elections. It appears from the averments of the bill that one of the relators is a candidate of the Republican Party for the office of Governor, and the other the chairman of the state central committee of that political organization. The judges of election in the precincts designated, the fire and police board, the sheriff, the chief of police, the chief of the fire department, the members of the election commission, the chairman of the Democratic central committee of the city and county of Denver, and the chairman of the Democratic state central committee of the state, are named as respondents. The bill charges that a majority of the members of the election commission are Democrats, and that two out of three election judges in each precinct have been appointed by the majority members, and that such judges, the members of the commission appointing them, and the other respondents, except the Republican member of the election commission, have conspired and confederated to prevent a fair and open election at the next ensuing general election, and to defeat the will of the people as lawfully expressed at the polls, and to this end have caused many thousands of false, fraudulent, and fictitious names to be entered upon the registration lists which will be certified to the judges of election for use in such election. The bill further charges that the respondents engaged in the conspiracy threaten with physical violence and arrest on fictitious charges, the Republican judges of election appointed by the minority member of the election commission, in order to prevent them from serving, and by other fraudulent practices, to bring about vacancies which may be filled by membership from the Democratic Party, and thus prevent the Republican Party from having a representation as judge in the several precincts, and through this means, secure both clerks of election in such precincts. The bill also charged that, as a part of the plan to prevent a fair election, it was the purpose of the majority of the election judges, the election commission, and the other respondents, to refuse to allow watchers and challengers of the Republican Party to be present at the polling places, to which they may be appointed for the purpose of challenging votes, and watching the count, and that the fire and police board and other peace officers named as respondents, will, unless restrained, eject such watchers and challengers from the polling places. It is also alleged that, in the recent past, gross frauds at the elections in these precincts have been perpetrated, but that the perpetrators have gone free, without any attempt on the part of the peace officers named as respondents to arrest or bring them to justice. It is also charged that it is the purpose of the peace officers mentioned as respondents to permit the practices heretofore indulged in to be repeated at the ensuing election, and to overawe and intimidate reputable citizens desirous of securing a fair and honest election, and to prevent fraud thereat, by driving them away from the polling places, or, at least, afford them no protection as against wicked and vicious persons who will congregate at such polling places to intimidate such citizens, so that they may not witness, or in any manner prevent, the frauds contemplated. It is also alleged that the respondent judges and the clerks engaged in the conspiracy pretend and claim to have the right to exclude from the polling places all challengers and persons other than the judges and clerks of election after the polls shall be closed and during the counting of the ballots, and the making of the returns thereof, and threaten, and intend to, and will, unless restrained, exclude all persons during this time, so that neither watchers nor challengers will be permitted to witness the count and the making up of the returns. It is further alleged that it is the purpose of the respondents, charged with the conspiracy to prevent a fair and honest election, to permit the false and fictitious names on the registration lists to be voted for the Democratic candidates, and to make use of such fictitious names by having them placed upon the pollbooks in advance, and deposit ballots in the ballot boxes to represent these names. It is also charged that it is the purpose of the conspirators to cause gangs of armed and wicked men to vote as repeaters and personators, and by threats and intimidation, prevent the representatives of the Republican Party from discharging their duty or reputable electors and citizens from visiting the polling places in order to gather evidence of the disreputable practices which, it is alleged, the conspirators will indulge in unless restrained. It is also charged that the campaign is heated and intense; that the alleged acts which it is claimed the conspirators will commit have been committed by them in the recent past, and that the temper of the public is such that, if they are permitted at the ensuing general election, riot and bloodshed may occur. The prayer of the complaint is to the effect that an injunction issue, restraining the respondents from committing the illegal acts which it is said they contemplate committing; that the injunction, by its mandate, specifically direct that the election officials comply with the law in the conduct of elections, and that two watchers in each of the several precincts be appointed by this court for the purpose of observing how the election in these precincts is conducted. To this bill the members of the fire and police board, the sheriff, the chief of police, the chief of the fire department, the chairman of the Democratic central committee of the city and county of Denver, and the chairman of the state central committee of the Democratic Party of the state answered, by which they challenged the jurisdiction of the court to determine the issues presented by the bill, and claimed that it did not state facts sufficient to constitute a cause of action, and that the relief sought was in conflict with section 5, art. 2, of the Constitution, which provides that 'all elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.' They further answered, denying the conspiracy charged, or purpose upon their part to commit any of the threatened illegal acts mentioned in the bill. The election commission also filed an answer to the same effect.
John M. Waldron, Thos. Ward, Jr., and Henry J. Hersey, for petitioners.
Chas. J. Hugher, Jr., S.W. Belford, H. M. Teller, Chas. S. Thomas, T. J. O'Donnell, Philip Hornbein, and John G. Taylor, for respondents.
GABBERT, C.J. (after stating the facts).
The object of this proceeding is to prevent the carrying out of a conspiracy to commit illegal and fraudulent acts which would result in the pollution of the ballot box. It is instituted on behalf of the people on the information of the Attorney General. According to the averments of the bill, a wide-spread conspiracy exists, which, if not frustrated, will deprive the people of the constitutional right to an open, fair, and bonest election; that officials upon whom devolves the duty of conducting the election are engaged in this conspiracy; and that part of the nefarious scheme has already been consummated, in that thousands of fictitious names have been placed upon the registration lists which it is the purpose of the conspirators to have voted by repeaters and personators with the connivance of judges and clerks of election. In short, that officials and instrumentalities of the state in control of the election machinery in the precincts mentioned have committed, and purpose to commit, frauds, in the way of permitting repeating and personating, and in counting the votes and certifying the returns which will render the election in those precincts a mere farce. The general purpose and scope of the relief demanded is to secure a judicial enforcement of the statutes relating to elections so as to prevent the perpetration of these frauds. In other words, to require the rsspondents engaged in the conspiracy to commit the frauds contemplated to refrain therefrom by simply conducting the election honestly, and obeying the laws prescribed for the conduct of elections.
As reasons why this relief cannot be granted, it is contended on the part of respondents, that, although the frauds charged may be perpetrated, the most sacred rights of the citizens violated, and the election laws of the state set at naught they cannot be enjoined from committing them because the commission of crimes may not be enjoined; that these frauds may be reached after their perpetration by the prosecution and conviction of those guilty of committing them, and through election contests; that political questions only are involved; and that the exercise of jurisdiction by this court in the...
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