People ex rel. Roberg v. Board of Com'rs of Chaffee County

• Decision Date: 16 September 1929
• Docket Number: 12330.
• Parties: PEOPLE ex rel. ROBERG v. BOARD OF COM'RS OF CHAFFEE COUNTY.
• Court: Colorado Supreme Court

281 P. 117

86 Colo. 249

PEOPLE ex rel. ROBERG v. BOARD OF COM'RS OF CHAFFEE COUNTY.

No. 12330.

Supreme Court of Colorado, En Banc.

September 16, 1929

Error to District Court, Chaffee County; Francis E. Bouck, Judge.

Action by the People, on the relation of George E. Roberg, against the Board of Commissioners of Chaffee County. Judgment adverse to plaintiff, and he brings error.

Affirmed.

A. L. Jeffrey, of Canon City, for plaintiff in error.

Wallace Schoolfield and Thomas A. Nevens, both of Salida, for defendant in error.

ADAMS J.

This is an election contest, brought by Roberg, plaintiff, a qualified elector of Chaffee county, against the board of county commissioners of that county, protesting against the removal of the county seat from the town of Buena Vista to the city of Salida.

A special election for the purpose of determining the question of removing the county seat from Buena Vista was held on November 6, 1928, concurrently with the general election for state and county officers. The result was that not less than two-thirds of all the votes cast were in favor of the city of Salida for the future county seat, and it was so certified by the board of canvassers. Plaintiff instituted his contest in the district court, but it was decided adversely to him. He brings error to review the judgment.

Plaintiff contested on two grounds, the first of which was alleged failure to give legal notice of the special election. He has abandoned and does not argue such ground in this court, and now relies on his remaining claim that in eight election precincts in the city of Salida there was no registration whatsoever for such special election, and that therefore the entire vote cast in such precincts must be discarded, and thus defeat the removal from Buena Vista to Salida. Eliminating 53 blank ballots which were cast but not counted the result in the entire county stood as follows: For Buena Vista, 942 votes; for Salida, 2,288--total, 3,230 votes. None for any other town or city. In the eight Salida precincts referred to, a total of 2,360 votes were cast, 234 of which were for Buena Vista, and 2,126 for Salida. If plaintiff succeeds in having the votes in these eight precincts thrown out bodily for lack of registration therein as contended, the case must be reversed, and the county seat remain at Buena Vista. Otherwise the judgment in favor of Salida must be affirmed.

A stipulation of facts, signed by counsel for both parties shows, inter alia, in addition to certain facts admitted in the pleadings: That on October 11, 1928, the board of county commissioners of Chaffee county ordered the special election referred to to be held at the time named pursuant to law that the county clerk was instructed to give notice thereof to the legal voters of said county, who have resided in the county 6 months and the election precinct 90 days next preceding such election, to designate upon their ballots at such election the place of their choice for the location of the county seat of said county; that, pursuant to said order, said special election was held at the same time and place as the general election; that there was published in the regular issues of certain newspapers a notice of special registration for the special election on such question, the names of the judges and registers of the election, times and places where registration would be held in each precinct, and other essential information, which notice was issued under the hand and seal of the county clerk of Chaffee county. A further notice of the special election, also by the county clerk, was published. The sixth and concluding paragraph of the stipulation reads as follows:

'6. That the persons appointed by the Board of County Commissioners of Chaffee County, Colorado, to act as judges and registers of election for said special election sat in said several election precincts on October 23rd and November 5th, 1928, and made a list of names intended to be used and which was used, at said special election as the registration lists of the voters of the several precincts.'

1. The essential facts are undisputed, and there is but one main legal proposition, the determination of which is decisive of the case; i. e., the legality of the Salida registration. The assertion in the complaint that there was no registration is not justified by the facts. It is contradicted by the stipulation above quoted, particularly by the sixth paragraph thereof. The election officials followed the procedure prescribed in subdivision 3, §§ 8649 to 8656, both inclusive, C. L. 1921. This is 'An Act to Regulate Elections for the Removal of County Seats.' Session Laws 1881, p. 103, and subsequent amendments thereto. This law was passed pursuant to the mandate of section 2, art. 14, of the Colorado Constitution, hereinafter quoted. The artificial point of cleavage upon which counsel for plaintiff predicates his argument, is that this 1881 statute is a nullity, in that it is repealed by implication. The manner in which plaintiff's counsel believes the 1881 act to have been repealed is hereinafter more fully referred to. Such counsel, having thus supposedly disposed of the obstacle of the 1881 act, thereupon finds no difficulty in reaching his conclusion that there was no registration at all, and therefore no election. Such a view is so diametrically opposed to ours that it calls for further brief comments.

2. The law concerning removal of county seats has its incipiency in section 2, art. 14, of the State Constitution, which reads as follows:

'The general assembly shall have no power to remove the county seat of any county, but the removal of county seats shall be provided for by general law, and no county seat shall be removed unless a majority of the qualified electors of the county, voting on the proposition at a general election, vote therefor; and no such proposition shall be submitted oftener than once in four years, and no person shall vote on such proposition who shall not have resided in the county six months and in the election precinct ninety days next preceding such election.'

In obedience to the above constitutional direction, the Legislature passed the 1881 act and amendments thereto, concerning the location and removal of county seats, which act will be found in sections 8649 to 8656, C. L. 1921. It is still in full force and effect. The first five sections of the 1881 statute are the only ones necessary to be considered here. They read as follows:

'8649. That whenever an election shall be ordered by the board of county commissioners of any county to ascertain the sense of the legal voters of such county upon the question of removal or location of the county seat of such county, it shall be the duty of such board of county commissioners to appoint special judges and registers of such elections, and to provide a special ballot box in each voting precinct, in which shall be deposited all the ballots cast at such election in such precinct on the question of location or removal of the county seat.

'8650. It shall be the duty of the judges and registers so appointed to make a special registration of the voters of each precinct who have resided in the county at least six months and in such precinct at least ninety days prior to the day designated for holding such election, which day shall be the day designated by law for holding a general election, and no other.

'8651. The election shall be held at the same places at which the general election is ordered to be held, but the vote for or against removal or location of the county seat shall be by a special ballot, separate and distinct from the general ticket voted at said election, which ballot shall be deposited in the special ballot box provided for in section 1 of this act, and no vote shall be counted for or against said removal or location which is not deposited in such special ballot box as herein provided.

'8652. No county seat shall be removed until the expiration of thirty days after the canvass of the votes had by the county canvassers upon the question of location or removal, nor until the board of county commissioners of such county shall have made and entered of record on their journal an order directing such removal, which order the said board shall make within thirty (30) days after the county canvass is completed, unless enjoined or restrained from so doing by an order of the district court of said county or the judge thereof, or by the supreme court.

'8653. All laws now in force relating to elections shall apply to elections held upon the question of removal or location of county seats, except that the question of location of such county seat shall be contested in the district court of said county in the first instance, but may be removed to the district court of any other county under the provisions of the code relating to change of the place of trial, and shall be also subject to appeal or writ of error to the supreme court; Provided, That not less than two-thirds of all the legal votes cast shall be necessary to effect the removal of the county seat of any county in this state.'

Salida is classified as a...