Vailes v. Brown

• Decision Date: 19 October 1891
• Citation: 27 P. 945,16 Colo. 462
• Parties: VAILES v. BROWN.
• Court: Colorado Supreme Court

27 P. 945

16 Colo. 462

VAILES v. BROWN.

Supreme Court of Colorado

October 19, 1891

Error to La Plata county court; H. GARBANATI, Judge.

William T. Vailes and Callahill Brown were opposing candidates for the office of commissioner of La Plata county at the general election in November, 1890. The vote being canvassed, it appeared that the total number of votes cast for said office was 1,223, of which Vailes received 614; Brown, 608 scattering, 1. Vailes received the certificate of election. This proceeding was instituted in the county court by Brown for the purpose of contesting the election of Vailes. The case being tried, the court found in favor of the contestor Brown, and rendered judgment declaring him to have been duly elected. Vailes brings the case to this court by appeal. Reversed.

Syllabus by the Court

1. Under the act of 1885 the county judge, sitting in term time in his regular capacity as the county court, is invested with jurisdiction to try and determine contested election cases of county officers. Whether the county judge sitting in vacation may exercise such jurisdiction, not determined.

2. Section 14 of the act is to be construed as a statute of limitations upon a summary proceeding; and when the period for filing the statement under said section has fully elapsed, excluding the day when the votes are canvassed, the time cannot be extended merely on the ground that the last day happens to fall on Sunday.

Decker & O'Donnell, N.C. Miller, W. C. Davidson, and Spickard & Pike, for plaintiff in error.

Russell & McCloskey, for defendant in error.

ELLIOTT, J., ( after stating the facts as above.)

This was a contested election case under the act of April 10, 1885, (Sess. Laws, p. 193.) The contestor having filed his statement and served his summons, the contestee appeared, and, first by demurrer and afterwards by answer, challenged the jurisdiction of the court over the proceeding. The grounds of objection to the jurisdiction of the court were: First, that the proceeding was tried and determined by the county court instead of by the county judge; second, that the written statement of contest was not filed in the office of the clerk of the county court within 10 days after the day when the votes were canvassed.

1. The act of 1885, supra, is somewhat ambiguous as to whether the county judge or the county court shall exercise jurisdiction in contested election cases of county officers. Upon careful consideration of its various provisions from section 13 to section 22, inclusive, we are satisfied that the county judge, sitting in term-time, in his regular capacity as the county court, is invested with jurisdiction to try and determine such election contests. Whether the county judge sitting in vacation may or may not exercise such jurisdiction, we need not now determine. The court did not err in overruling the challenge to its jurisdiction on the ground that the proceedings were had before the county court instead of the county judge.

2. From the record it appears that the votes were canvassed on November 6, 1890. The contestor did not file the written statement of his intention to contest the election until November 17, 1890. Section 14 of the statute requires that the statement shall be filed 'within ten days after the day when the votes are canvassed.' Hence it is contended by appellant that the court below was without jurisdiction over the proceeding. On the other hand, it is claimed by appellee that, as November 16, 1890, fell on Sunday, the contestor was entitled to file his statement on the following Monday. In a recent contested election case under the act of 1885 Mr. Justice HAYT, in delivering the opinion of this court, used the following language: '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 is not only special in character, but it furnishes a complete system of procedure within itself. * * * It provides for a written statement as the basis of the proceedings.' See Schwarz v. County Court, 14 Colo. 47, 48, 23 P. 84, and authorities there cited. In McCrary, Elect. (2d Ed.) § 276, it is said: 'A statutory provision requiring notice of contest to be given within a given time from the date of the official count, or from the declaration of the result, or the issuing of the certificate of election, or the like, is peremptory, and the time cannot be enlarged. * * * And it may be added that there is the strongest reason for enforcing this rule most rigidly in cases of contested elections, because promptness in commencing and prosecuting the proceedings is of the utmost importance, to the end that a decision may be reached before the term has wholly or in great part expired.' It has been held that where a rule to plead expires on Sunday the party has the next day in which to plead; but this rule has generally been limited in its application to causes over which the court has already acquired jurisdiction. Cock v. Bunn, 6 Johns. 326. So, where administrative or judicial acts are required to be performed within a specified time, if the last day falls upon Sunday, the succeeding Monday becomes the return-day or court-day, unless the same be also a legal holiday. In re Computation of Time, 9 Colo. 632, 21 P. 475. So, also, the Civil Code of this state (section 382) provides that 'the time within which an act is to be done as provided in this act' shall exclude the last day if it be Sunday; but the rule is expressly limited to matters provided for in the Code. The act of 1885, regulating proceedings in contested election cases, contains no such provision; and it is, as...