Town of Sugar City v. Board of Com'rs of Crowley County

• Decision Date: 04 May 1914
• Docket Number: 8100.
• Citation: 140 P. 809,57 Colo. 432
• Parties: TOWN OF SUGAR CITY et al. v. BOARD OF COM'RS OF CROWLEY COUNTY.
• Court: Colorado Supreme Court

140 P. 809

57 Colo. 432

TOWN OF SUGAR CITY et al. v. BOARD OF COM'RS OF CROWLEY COUNTY.

No. 8100.

Supreme Court of Colorado, En Banc.

May 4, 1914

Error to District Court, Crowley County; J. E. Rizer, Judge.

Election contest by the Town of Sugar City and another against the Board of County Commissioners of the County of Crowley. There was a judgment for defendant, and plaintiffs, contestants bring error. Affirmed.

Thomas & Thomas, of Denver, for plaintiffs in error.

H. A Hicks, of Denver, and I. H. Stanley and Perry Behymer, both of Ordway (Charles Roach, of Denver, of counsel), for defendant in error.

BAILEY J.

The general assembly created the County of Crowley in 1911 and temporarily established its county seat at the town of Ordway, and provided that the county seat should remain there until a permanent county seat was selected and established as provided by law.

The board of county commissioners called and caused to be held at a general election for state and county officers on November 5th, 1912, a special election for the purpose of permanently locating the county seat. Acting under the law of 1881 (Laws 1881, p. 103), separate registers and judges of this election were appointed and separate ballot boxes therefor provided. The judges were required, and actually did, permit to be registered and to vote upon that question only such persons as were by the terms of the act of 1881 entitled to vote, namely, such electors as had resided within the state of Colorado one year, in the county six months and in the precinct ninety days.

As a result of the election, the board of canvassers, on the 8th day of November, 1912, returned that the town of Ordway had received a majority of twenty-seven of all votes cast upon that question. On the 18th day of November next thereafter, the tenth day after the official canvass, plaintiffs in error filed in the district court their statement of contest, thereby undertaking to overturn such election. On the 27th day of that month the defendant in error filed its answer, consisting of five separate defenses and pleas, and one counterclaim. On the 16th of December following, the answer of defendant in error having raised the sufficiency of such statement of contest, because of its failure to set forth a list of names of alleged illegal voters, plaintiffs in error asked leave to amend, and tendered and requested to have made a part of their original contest statement a list of such alleged illegal voters, which leave the court denied. It is to be noted that the filing of the application to amend was three weeks after the filing of the answer of defendant in error, and lacked but two days of being a full month after the filing of the original statement of contest.

There are two main questions in this case, incidentally involving some minor ones: First. Should plaintiffs in error have been allowed to file an amendment to the third paragraph of the complaint, by inserting therein or adding thereto the names of those persons who it is claimed were illegal voters? Second. Was the election to locate the county seat held under the provisions of the proper statute, or was the election void because of the residential qualifications required to entitle persons to vote upon that question?

The act providing for election contests of this character is not only special, but furnishes a complete system of procedure within itself, summary in its nature. Sections 2308-2319, R. S. 1908. Under the plain terms of section 2308 and those immediately following, it is manifest that the contestors were without right to amend their statement of contest by supplying the very thing which was essential in the first instance to state a ground of contest and give the court jurisdiction. The allegation in the statement of contest to which the amendment was offered reads:

'Third.--That sufficient illegal votes were received, and counted, for the town of Ordway, as the location of the permanent county seat of the County of Crowley, at said election, in each of the several voting precincts of the said County of Crowley, to change the result of said election.'

Section 2312, R. S. 1908, reads in part as follows:

'When the reception of illegal or the rejection of legal votes is alleged as the cause of the contest, a list of the number of persons who so voted, or offered to vote, shall be set forth in the statement of contestor.'

This provision is mandatory and must be strictly construed. The language of the statute in this particular, as well as in all other fundamental features, is not subject to amendment under the liberal provisions of the code of civil procedure. In Schwarz v. County Court, 14 Colo., page 44, 23 P. 84, it was held that in order to give the court jurisdiction the contest statement must contain the list required by section 2312, and the opinion therein contains the following:

'The proceedings upon an election contest before the county judge, under the statute, are special and summary in their nature; and it is a general rule that a strict observance of the statute, so far as regards the steps necessary to give jurisdiction, must be required in such cases. The act under which these contests were instituted not having been complied with in the particular mentioned, the statements filed as the basis of the proceedings are radically defective. Sedg. St. & Const. Law, 299; Dorsey v. Barry, 24 Cal. 449; Casgrave v. Howland, Id. 457; Norwood v. Kenfield , supra; Loomis v. Jackson, 6 W.Va. 613; Buckley v. Lowry, 2 Mich. 418.

'The act is not only special in character, but it furnishes a complete system of procedure within itself. It requires that such contests shall be tried and determined by the county judge of the county in which the contests arise. It provides for a written statement as the basis of the proceedings, and designates what it shall contain, and the officer with whom it shall be filed. It designates the officer by whom the summons shall be issued, and provides the time and manner of making up the issues. Provision is also made for fixing the time of trial, and for the form of judgment to be entered, etc. As we have seen, the jurisdiction of the court, under such a statute, depends entirely upon the terms of the act, and consequently, before contestors can invoke such jurisdiction, facts must be stated by them which bring the cases within the purview of the act. In these statements, while the board of registration is charged with fraudulently permitting the names of those not entitled to vote to be registered, the gravamen of complaint in each case is that sufficient illegal votes were received and counted for the contestee to change the result of the election; and, unless this can be maintained as a cause of contest, contestors must fail; and yet no attempt has been made to comply with that portion of the act requiring a list of the number of persons who so voted, with the precinct or ward where such votes were cast, to be set forth in the statement. It is reasonable to conclude that the legislature in enacting this requirement had in view the fact that by previous legislation the utmost care had been exercised to provide for the casting of the ballots and the integrity of the count; and it is certainly not unreasonable to require those who desire to contest the right of a person to an office to which he has been declared duly elected by the tribunal provided by law to determine that question, to state with reasonable certainty and precision the cause upon which they rely to overthrow such result. We cannot say that the provision of the statute of 1885, under consideration, is unreasonable, and, if it were, relief must be looked for from the legislature, and not from the courts.

'The court below should have sustained the pleas to its jurisdiction based upon the failure to include in the statements the lists required by the statute. Faribault v. Hulett, 10 Minn. 38 (Gil. 15); High, Extr. Rem. § 781; Keller v. Chapman, 34 Cal. 635; Garretson v. County of Santa Barbara, 61 Cal. 54; Quimbo Appo v. People, 20 N.Y. 531.'

Under this rule, upon principle and reason, obviously a contestor should not be permitted to make such an amendment, long after the time in which a contest might be instituted, the effect of which would be to extend the time allowed by statute within which such an action can be begun, a thing which the legislature could never have contemplated, since the proceedings are special and summary. In the case of Kindel v. Le Bert, 23 Colo. 385, 48 P. 641, 58 Am.St.Rep. 234, it is definitely ruled that amendments such as the one here proposed are not permissible under our statute. Speaking to this point in that case this court said:

'In McCrary on Elections, § 396, it is said that an amendment in proper cases should be allowed. Where it is proper, it should be seasonably applied for and under sufficient showing. Id. §§ 407, 408. And if it would work a continuance or a considerable delay, it should not be granted.

'Upon the other hand, where, as in Colorado, the procedure is governed by a special act which does not provide for amendments, and in which the proceedings are not assimilated to some practice that does so provide, it has been expressly held that it was beyond the power of the court to permit amendments to be made. Ford v. Wright, 13 Minn. 518 (Gil. 480); Bull v. Southwick, 2 N.M. 321, 362, et seq.; Vigil v. Pradt, 4 N.M. (Johns.) 375 ; 6 Am. & Eng. Ency. of Law, 407.

'In the case of Schwarz v. County Court, 14 Colo. 44 , because not necessary to the determination of that case, this court expressly declined to decide the point. But as it held that the act furnished a complete system of procedure within itself, this case gives countenance to the

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