People ex rel. Miller v. Tool

• Decision Date: 23 July 1905
• Parties: PEOPLE ex rel. MILLER, Atty. Gen., et al. v. TOOL et al.
• Court: Colorado Supreme Court

86 P. 231

35 Colo. 225

PEOPLE ex rel. MILLER, Atty. Gen., et al. v. TOOL et al.

Supreme Court of Colorado

July 23, 1905

Proceeding by the people, on relation of N.C. Miller, Attorney General and others, against John Tool and others. On motion for an order directing the temporary election commission, in the capacity of a board of canvassers, to reject certain tally lists in case of a discrepancy between such lists and the certificate of the precinct election officials. Granted.

Steele J., dissenting.

John M Waldron, Thomas Ward, Jr. and Henry J. Hersey, for petitioners.

Chas J. Hughes, Jr., T. J. O'Donnell, S.W. Belford, Philip Hornbern, H. M. Teller, Jno. G. Taylor and C. S. Thomas, for respondents.

GABBERT, C.J.

The question raised by the motion under consideration is whether the temporary election commission, in the capacity of a board of canvassers, may, in making up the returns, consider the tally list, or is this board, in making up such returns limited to the certificate of the precinct election officials? In other words, in case of a discrepancy between the tally list and such certificate, which shall control? Counsel presenting the motion contend that the certificate alone, can be considered, while on the part of counsel for the election commission it is claimed that the tally list is a part of the returns, and that such list, as well as the certificate, may be considered by the commission in canvassing the returns. The election law, after directing the preliminary steps to be taken by precinct election officials in counting the ballots and making up the returns, provides: 'As the judges of election shall open and read the tickets, each clerk shall, upon tally lists prepared for that purpose, carefully mark down the votes each of the candidates shall have received, in separate lines, with the name of such candidate at the end of the line, and the office it is designed by the voter such candidate shall fill.' Section 32, p. 162, Laws 1891. The law further provides that 'as soon as all the votes shall have been read off and counted, the judges of election shall make out a certificate under their hands, and attested by the clerks, stating the number of votes each candidate received, designating the office for which such person received such vote or votes, and the number he did receive, the number being expressed in words at full length, and in numerical figures, such entry to be made as nearly as circumstances will admit in the following form.' Then follows the form, from which it appears that it was the express purpose of the Legislature, in passing the foregoing provision, that the number of votes cast for each candidate should be written out full length, and also in figures immediately following. Section 44, p. 77, Election Law (1 Mills' Ann. St. § 1624). This section further directs that the certificate of the election officials, together with one of the lists of voters and one of the tally lists, shall, on the completion of the count, be inclosed and sealed up, under cover, and directed to the official who has charge of making the canvass. Section 46 (1 Mills' Ann. St. § 1626) following directs that the canvassing board 'shall proceed to open the said returns, and make abstracts of the votes in the following manner.' The direction following makes no reference as to what shall be considered in making this abstract, but is merely directory as to what such abstract shall show for the respective candidates. Section 61 (1 Mills' Ann. St. § 1642) of the act also provides that 'if, upon proceeding to canvass the votes, it shall clearly appear to the canvassers that in any statement produced to them certain matters are omitted in such statement which should have been inserted, or that any mistakes which are clerical, merely, exist, they...