People ex rel. Miller v. Tool

• Decision Date: 03 July 1905
• Citation: 86 P. 229,35 Colo. 225
• Parties: PEOPLE ex rel. MILLER, Atty. Gen., et al. v. TOOL et al.
• Court: Colorado Supreme Court

86 P. 229

35 Colo. 225

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

Supreme Court of Colorado

July 3, 1905

Proceeding by the people, on relation of N.C. Miller, Attorney General and others, against John Tool and others. On motion to restrain the election commission from canvassing returns from certain precincts and to exclude such returns in making up the official abstract of votes. Sustained.

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 injunction in this case, as indicated by the preceding opinion was duly issued and served upon respondents prior to the election. After the election proceedings in contempt were instituted against certain of these parties. At their trial it developed that they had disobeyed the mandates of the writ by the perpetration of gross frauds, for which they were adjudged guilty of contempt. The facts upon which such conclusions were based are substantially as follows: In precinct 8, Ward 7, none of the ballots cast were counted, but in their place and stead ballots were substituted which were returned and certified. In precinct 10 of Ward 7, upwards of 200 ballots were introduced into the box after the polls were closed, which ballots were counted and certified as having been duly cast. In precinct 8, Ward 5, the election officials knowingly and willfully permitted repeating to such an extent that it was impossible to determine the number of votes so fraudulently cast. In precinct 7, Ward 5, an examination of the ballot box disclosed that upwards of 150 ballots were written by one person, and that the election officials knowingly and willfully permitted repeating. In precinct 6, Ward 5, repeating was also knowingly and willfully permitted by the election officials, it appearing that in some instances the same person voted as many as 8 times. In precinct 9, Ward 5, after the polls were closed, the election officials mingled with the ballots cast a large number of false, fictitious, and spurious ballots, which were subsequently counted, returned, and certified by them. In precinct 3, Ward 4, the election officials also permitted repeating. The same is true with respect to precincts 1 and 2 of this ward. In precinct 13, Ward 3, in addition to the election officials knowingly and willfully permitting repeating, it appears that over 80 ballots were found in the box so folded that they could not have been introduced through the slot; that these ballots were counted and certified, and it also appeared that, according to the returns made, there had been a willful miscount of the votes found in the box.

In brief, it appeared, from the facts established in the contempt proceedings, that the returns made by the election officials of the precincts mentioned were false; that in no instance did they represent the bona fide vote cast in either of these precincts; that this vote could only be determined by an investigation independent of the returns; that the respective election officials had knowingly and willfully committed frauds through which these results were accomplished, and that these several acts were in violation of the mandates of the injunction issued. After these proceedings, the people, through the Attorney General, moved for an order directing the election commission to exclude the returns from these precincts in making up the final abstract of votes. In opposition to this motion it is contended that an order of the character demanded will disfranchise the people of the precincts embraced in the motion that such an order will be an interference with the duties of the commission, because by law they are required to canvass the returns in the first instance; that it will affect candidates who were not parties to the original proceeding, and are not before the court on this motion; and that title to an office cannot be determined, or a contest inaugurated, in the manner contemplated by the motion. None of these questions are involved. Sustaining the motion will not disfranchise the voters in the precincts mentioned. If they have been disfranchised, it is because of the fraudulent acts of election officials. The motion does not make a case of an election contest, nor does it involve title to an office, so that candidates are neither proper nor necessary parties to the original...