People Ex Rel. Dick v. Mosco

THESE parties occupy the same relative position here as in the trial court. For convenience we refer to them as Dick and Mosco, respectively. At the April 3, 1945 municipal election the parties were opposing candidates for mayor of Walsenburg, a city of the second class. The city canvassing board found (and it is admitted) that each received 626 votes and so reported to the retiring city council meeting to receive returns. At its suggestion and in its presence, the canvassing board cast lots to resolve the tie and Dick was successful. Whereupon the old council adjourned and the new organized. Pursuant to a resolution duly adopted by the latter declaring a vacancy in the office Mosco was selected to fill that vacancy. He thereupon entered into and has continued to execute the office. April 27, 1945 Dick brought this action demanding that Mosco be ousted and himself installed. Mosco by answer admitted all material statements of fact, denied all legal conclusions, alleged that the complaint failed to state a cause of action and prayed that he be declared the lawful mayor. Upon the trial judgment was entered for Mosco. To review that judgment Dick prosecutes this writ, asks that it be made a supersedeas and that final decision be rendered on this application. We have elected to so dispose of the cause. The sixteen specifications may be disregarded since counsel for Dick properly says that the two errors relied upon (and covered by the specifications) are the refusal of the court to pass upon Dick's title, and its *Page 466 refusal to determine the legality of the lot as the lawful method of resolving the votes in municipal elections. The only "evidence" offered on the trial was the following stipulation entered in open court. "It is hereby stipulated and agreed, that the city canvassing board, following the election of April, 1945, met to canvass the votes for mayor, among other offices, at the city election held in Walsenburg in April, 1945. And in canvassing the returns, the canvass showed there was a tie vote for the office of mayor, between the relator, James B. Dick, and the respondent, Joe Mosco, Jr., and the canvassing board determined the tie by casting a lot, and that the relator, James B. Dick, was selected by the city canvassing board in that manner, as the mayor." In an eight page "Opinion and Judgment" the trial court ignored the two questions above mentioned. It held that the old city council did not hold over; that it "assumed and exercised the functions of the canvassing board and that the city clerk and the justice of the peace were merely spectators of the proceedings except in one instance where it was provided in the resolution [adopted by the old city council] that they should determine the tie by lot, in the manner and by the mode prescribed by the council, and therefore, were only acting as its agents in determining the tie;" that Dick had not taken the required oath; that Dick was obliged to recover on the strength of his own title; that no certificate of election was issued to Dick; and, inferentially, that because of the foregoing Dick was not qualified to prosecute this action. All these findings are either wholly immaterial or contrary to the pleadings and the foregoing stipulations. [1] This being an action in the nature of quo warranto the primary question was the validity of Mosco's title. People ex rel. Barton v. Londoner, 13 Colo. 303,22 Pac. 764; Lockhard v. People, 65 Colo. 558,178 Pac. 565; Lyons and E. P. Toll Road Co. v. People, 29 Colo. 434,68 Pac. 275; 44 Am. Jur., p. 168, § 107. *Page 467 [2] If the incumbent is without title he may be ousted although it may be determined that relator's position is no better. [3] Assuming that it was the duty of the city canvassing board to decide the tie by lot, it is unquestioned that their procedure was in all respects proper and devoid of fraud or favoritism. Such being the case, who advised that procedure, or supervised it, or stood by and observed it, is wholly immaterial. [4] It is likewise immaterial that Dick had or had not taken the required oath. Before he could do so it became self-evident that further procedure on his part would be futile and the law requires no such action. This was no condition precedent to trying title to the office. 51 C.J., p. 324, § 21. Each of the parties here bases his claim upon specific statutory provisions and each denies the applicability of those relied upon by the other. Which is correct is the simple question at issue in this case, the determination of which settles the litigation. "In case of the mayor's death, disability, resignation or other vacation of his office, the city council shall order a special election as soon as practicable to fill the vacancy for the remainder of the term of office, and may appoint some qualified elector to act as mayor until such special election." '35 C.S.A., c. 163, § 92. Mosco says that the tie vote resulted in a vacancy to which vacancy he was selected by the council and is therefore rightfully in possession of the office. If there be no specific statute otherwise providing for the resolution of a tie he is correct. Dick says there is such provision and that the essential facts bringing this case within the purview thereof are covered by the stipulation. "The returns of all municipal elections in cities and incorporated towns, shall be made to the clerk or recorder of the corporation, and shall be opened by him on the third day after election. He shall call to his *Page 468 assistance * * * any justice of the peace of the county, and shall, in his presence, make out an abstract andascertain the candidates elected, in all respects as requiredby law for the canvass of the returns of countyelections, * * * ." '35 C.S.A., c. 163, § 191. "If any two or more persons have an equal number of votes for the same county or precinct office, and a higher number than any other person, the county clerk and his assistants aforesaid shall immediately determine by lot which of the two candidates shall be elected." '35 C.S.A., c. 59, § 246, as amended by S.L. '41, p. 405, § 18. [5] Such is the manner provided by statute for determining a tie in the election of county or precinct officers and this, says section 191, supra, is the method by which, in case of a tie, the city canvassing board shall "ascertain the candidate elected." Thus, says Dick, his election was determined. We are forced to the conclusion that he is correct, not only because there are numerous statutes of this state, and decisions of this court, indicating, but not expressly declaring, that such is the proper procedure; because no authorities to the contrary are called to our attention or known to us; and because counsel for Mosco in his brief evades the question; but principally because the language of the two statutes appears applicable and lucid and no other construction is suggested or occurs to us. The judgment is accordingly reversed and the case remanded with directions to enter judgment for Dick. MR. CHIEF JUSTICE KNOUS and MR. JUSTICE HILLIARD dissent.