Vigil v. Garcia

• Citation: 36 Colo. 430,87 P. 543
• Parties: VIGIL v. GARCIA.
• Decision Date: 05 February 1906
• Court: Supreme Court of Colorado

87 P. 543

36 Colo. 430

VIGIL v. GARCIA.

Supreme Court of Colorado, En Banc.

February 5, 1906

Appeal from Las Animas County Court; Robert R. Ross, Judge.

Election contest by Eugenio Garcia against J. U. Vigil. From a decree in favor of contestant, contestee appeals. Affirmed.

Gunter and Steele, JJ., dissenting.

W. M. Bates, W. B. Morgan, and C. S. Thomas, for appellant.

James C. Starkweather, amicus curiae, Elwell & Collins, and Eusebio Chacon, for appellee.

BAILEY J.

This matter was submitted to the court en banc, for the reason that the constitutionality of the law permitting judges of the county court to interchange was involved. Inasmuch as that question has already been determined by this court in the case of Prudential Ins. Co. v. Hummer (decided at this present term) 84 P. 61, we shall pay no further attention to it.

This is a contest over the election to the office of clerk and recorder of Las Animas county. Upon the face of the returns appellant, who is contestee, received 34 votes more than appellee, who was the contestor. The court found that contestor received 23 illegal votes, and contestee gained one upon a recount of the ballots. Contestee received a plurality of 260 in precinct 31 of ward 4, in the city of Trinidad which precinct was excluded by the trial court, thus making contestor's plurality 205.

The first error complained of by appellant is that the contest proceedings were not instituted within the time required by law, namely, within 10 days after the day when the votes were canvassed. It appears that appellant was the clerk and recorder of Las Animas county, and, as is by law directed, he called to his aid two justices of the peace of that county to act as a board of canvassers. They made and canvassed the vote upon the 15th of November, and, on the same day, from the county court of Las Animas county, an alternative writ of mandamus issued, commanding the canvassing board to show cause why they should not canvass what was known as the 'Bradford Returns' from Primero precinct, and upon the same day this alternative writ of mandamus was made absolute. Upon the 16th day of November a writ of injunction was issued from the district court of the Third judicial district, restraining the respondent from acting upon or in pursuance of this judgment of the county court. An alternative writ of mandamus was also issued compelling them to show cause why they should not canvass what was known as the 'McPherson Returns' from the Primero precinct. This suit came on for trial on the 20th of December, 1904, and final judgment was rendered, from which a writ of error was sued out to the Court of Appeals and supersedeas applied for, which application was denied. Upon the 30th day of December the board of canvassers reconvened and completed its canvass, canvassing, as the court directed the McPherson returns from Primero precinct. Within 10 days after the 30th day of December these proceedings were instituted before the county court of Las Animas county. The contention of appellant is that the proceedings should have been instituted within 10 days after the 17th of November, when the canvass was completed, with the exception of the Primero precinct which was involved in the litigation; that, inasmuch as the returns from the Primero precinct did not change the result, so far as the office of county clerk was concerned, but simply lessened the appellant's majority, the canvass so far as these two offices were affected was completed upon the 17th day of November. We cannot agree with this contention. The statute provides that the contest must be filed 'within ten days after the date when the votes are canvassed.' This means all of the votes. It does not mean a sufficient number to show that one or the other of the parties was elected, but it means the votes of the entire county and if for any reason one or more precincts are not canvassed, at the time of the first sitting of the board, the statute will not commence to run until those precincts are canvassed, even though the returns from those precincts when counted will not affect the result as between candidates for any single office. If this is not true, then the time for the filing of the contest would be an uncertain period, because the time would commence to run as soon as it was determined that the candidates for one or more of the offices were elected. The period of 10 days did not commence to run until after the 30th day of December, at which time the canvassing board completed its canvass, under the direction of the district court.

The second contention of appellant is that this matter is res adjudicata. It appears that upon the 26th of November, 1904 appellee instituted a contest against appellant for the same office, and growing out of the same election for which this contest was instituted. The statement of contest was answered and a replication filed, and, upon the 29th day of December, the cause came on for hearing and was dismissed on the motion of contestor, over the objection of the contestee. It is insisted that this dismissal over the protests and objections of the contestee was a bar to the right of appellee to institute another proceeding of the same nature. Hallack v. Loft, 19 Colo. 80, 34 P. 568, and other cases are cited in support of this contention. What the court said in the case mentioned was: 'A judgment of nonsuit or mere dismissal is no bar to another action for the same cause. * * * Our conclusions are that the judgment of dismissal is a final judgment and put an end to plaintiff's action, but that it was not a judgment upon the merits and so did not put an end to his cause of action. He is therefore at liberty to commence another action for the same cause.' The authority cited is in direct opposition to the contention of appellant, and is the rule of practice which has invariably been adopted in this state. D. & R. G. R. R. Co. v. Iles, 25 Colo. 19, 53 P. 222; Martin v. McCarthy, 3 Colo.App. 37, 32 P. 551; Freas v. Englebrecht, 3 Colo. 377; County Com. v. Schradsky, 31 Colo. 178, 71 P. 1104. In Charles v. People's Ins. Co., 3 Colo. 419, it is stated that an order of dismissal is simply the blowing out of a candle that may be lighted at pleasure. The court found 'that, in precinct 31, ward 4, city of Trinidad, the entire returns are so far vitiated and discredited by the gross frauds and irregularities committed in said precinct by the judges and clerks of election and intermeddlers, that the entire vote of said precinct should be rejected.' This general finding is based upon the further special findings that one of the judges of election in precinct 31 was intoxicated, and was absent many times from the polling place during the casting of the ballots, was asleep during a large part of the time in which the ballots were counted; that he electioneered against a portion of the Republican ticket in the polling place; that a large number of foreigners, who were designated and known as 'strikers,' were huddled together in quarters adjacent to, and in, the macaroni factory located in this precinct; that these strikers were supported by the strike committee and were not bona fide residents of the precinct; they cast their votes and immediately disappeared; persons who were not registered voted on the names of registered voters who did not vote; that persons were assisted in preparing their ballots by interpreters who were not sworn; that many persons were assisted who were not sworn as to their own inability, but no record of assistance was kept; a large number of intruders and persons not sworn assisted in keeping the tallies or in reading off the ballots; that, during a portion of the time, there was but one sworn officer assisting in the counting and canvassing of the votes; two deputy clerks in the office of the contestee unlawfully participated in the count and canvass of the votes, neither of whom were sworn officers of said precinct, and said deputies are still holding office under the contestee. The candidate for justice of the peace upon the Democratic ticket assisted in counting the votes. The registration in this precinct was greatly in excess of all previous elections; the secrecy of the ballot was destroyed; almost every ballot bore a distinguishing mark, showing the number of the ballot, and the ballots were not numbered in pen and ink, as required by law, but were...