Allen v. Glynn

Chief Justice Hayt delivered the opinion of the court. This is the first contest instituted in this court under the new election law — “ The Australian Ballot System.” Questions affecting the freedom and purity of elections are of vital importance under our system of government. While the present contest is important to the contestants and the people of the Thirteenth judicial district, it is of still greater importance on account of its effect upon the cause of ballot reform. It is to be noted at the outset that in common parlance “ The Australian Ballot System ” is a name applied indiscriminately, in enactments of different states, widely dissimilar in many important particulars, so that with us the name is of little significance. It is doubtful if any state has yet, or will in the future, adopt without change “ The Australian Ballot Law,” as it is found in the island of its birth. Some of its essential features have been discarded no doubt as inapplicable to our institutions and theory of government. The act under which this contest must be determined contains 44 sections. It will only be necessary, however, to refer to a few of these sections in this opinion. By the first section provision is made for printing and distributing all ballots by public officers at public expense. Sec. 2 excepts certain school and special elections from the requirements of the first section. Sections 3 to 12 inclusive provide in detail the manner of making, certifying and publishing nominations. Sec. 13 provides the mode in which objections to certificates of nominations may be made and determined, and also provides how defects in such certificates may be cured. Sec. 14 relates to acceptances of nominations, while by the next section provision is made for filling vacancies in nominations. Turning to the complaint we find that paragraphs 12 to 15 inclusive, against which (and paragraphs 16 to 17) this motion to strike is interposed, relate exclusively to the manner in which certain candidates were nominated and their names published, and the way in which Glynn’s name was placed upon certain tickets. Paragraphs 16 to 17 have refer — 343 — ence to the number of legal votes received and registered. If the allegations contained in these latter paragraphs are to be taken as true, then it appears that contestant received a majority of all the legal votes cast. It is probable these paragraphs were included in the motion to strike out by mistake. The allegations appear to be legal and proper, and so far as the motion applies to them it will be overruled without further comment. That part of the motion which is directed to paragraphs 12 to 15, inclusive, raises the principal question upon which we are called to pass at this time. It is alleged in substance in these paragraphs that contestee, Gtynn, was originally nominated by 100 independent voters of the district. These independents selected as the name by which they were to be designated, “Peoples’ Party ” and adopted the device or design, “ Emblem of Justice.” That one Quitman Brown was nominated as a candidate for district attorney by the same persons and at the same time. The certificate of these nominations was duly filed in the office of the secretary of state. Some time after this had been done five hundred, or more, independent voters, residing principally in Arapahoe county, and none of them in the Thirteenth judicial district, placed in nomination a eat)didate for justice of the supreme court, and selected as their name “ The Peoples’ Party for Colorado,” and as their emblem or device, “ Cottage Home.” A certificate of this nomination was duly filed in the office of the secretary of state. Neither the contestee, nor his associate, Brown, accepted the first nomination as required by law. To remedy this omission certain persons, chosen by the original convention to fill vacancies, selected contestee and said Brown for the offices of district judge and district attorney, respectively, and the candidateshaving accepted, their names were certified by the secretary of state to the several county clerks as thus duly nominated. In four of the five counties of the district there was no printed notice given by any newspaper or publication advising the electors of the nomination of either contestee or his associate. In the fifth county, this — 344 — being the county of Washington, their nominations were published under the device, “ Emblem of Justice,” as a separate set of nominations. In this county official ballots were printed containing four columns or sets of nominations, viz.: First, the Republican list under the device-“Eagle,” containing the name of contestor; second, the democratic list under the device “ Rooster,” containing the name of William T. Skelton ; third, a list designated as “ Peoples’ Party,” under the device “ Cottage Home,” containing the name of a.candidate for supreme judge only ; fourth, a list also designated, “Peoples’ Party, ” under the device, “Emblem of Justice,” containing the name of contestee and others. In the remaining counties of the district the official ballots were printed with three parallel columns; the first and second containing the republican and democratic list, respectively, and' the third, designated “Peoples’ Party;” under the device “Cottage Home,” containing the name of John 'H. Croxton for supreme judge, contestee for district judge, Quitman- Brown for district attorney, and other candidates. It is claimed that about 150 ballots in said four counties, of which 100 were in the county of Yuma, were erroneously counted, certified and returned as votes cast for contestee-for the office of judge of the Thirteenth judicial district. That said ballots were marked by said electors at said election only by a cross in ink, under the device, “ Cottage Home.” That there was no other mark to indicate that said voters desired to vote for contestee. That all the other.ballots which were counted, certified and returned for contestee were marked by a cross against his name, as printed under the device, “ Cottage Home,” and not under the emblem or device “ The Emblem of Justice,” as was the case with the county of Washington. It is futher alleged that the state board of canvassers certified as the result, of the returns submitted to them that contestee received a plurality- of two votes. - The position of contestor with reference to the 150 .ballots with the device “ Cottage Home,” is that said ballots should not have been counted for contestee, since under the law- it is — 345 — claimed that there was no possible way of voting for him except by placing a cross near the device “ Emblem of Justice,” or by a cross to the right of his name. If this position can be maintained, it follows that contestor is shown to have been elected regardless of those allegations of the complaint which relate to certain other alleged irregularities. In support of the position taken by contestor our attention is directed to the provisions of section 18 of the act. The arguments based upon this section being that the nominations of Glynn and Brown constituted a single set of nominations. That the persons who filed, the certificate selected a name and also a device and nominated a candidate for district judge, and a candidate for district attorney, and no other candidates. While those who placed in' nomination John H. Croxton selected a different device and a different name, both said device and name being quite dissimilar from that selected by'the Glynn and Brown convention. It is said that there is absolutely nothing in the statute which justified the placing of the name of Glynn or Brown in the list or set of nominations with the name of John H. Croxton under the device “ Cottage Home.” The argument further proceeds to assume that for the purpose of preventing the putting in one list of nominations for different offices made at different times and by different persons not connected by party ties, the statute expressly provided when there is no nominee of any party, or set of nominations, a blank shall be left under said office. It is said, therefore, that under the device“Cottage Home” and under the name of John H. Croxton as candidate for supreme judge a blank should have been left for district judge and for district attorney, no nominations having been made for either of said offices by the persons who nominated John H. Croxton or by any persons who selected the device “ Cottage Home.” If the contention of counsel- be correct and if it be admitted that these names were improperly printed upon certain ballots, does it follow that; such ballots, after having been — 346 — voted, should not be counted for the person for whom they were cast? An examination of the statute shows that provisions for the correction of certain defects and irregularities are therein made. By section 13 of the act it is provided that certificates shall be deemed valid unless written objection be filed within a time fixed, and that when such objections are filed the candidates shall be notified of the same. It further provides that the officer with whom the certificate is filed shall pass upon the validity of the objection made, and that his decision shall be final. And in case any objection shall be sustained the certificates may be amended or a new certificate filed. In considering this phase of the present controversy we have to do more particularly with another section, and refer to section 13 merely for the purpose of showing the liberal tenor of the act, so far as the voter is concerned. In section 20 it is provided that whenever it shall appear by affidavit of a candidate or his agent that an error or omission has occurred in the publication of the names or description of candidates nominated for office or in the printing of the sample or official ballots, the district or county court may correct such error. By this section it is further provided that the county clerk, city clerk, or town clerk, as the case may be, may, on his own motion correct, without delay, any error in all ballots which he or they may discover, or which shall be brought to his notice and which can be corrected without interfering with the timely distribution of the ballots. By other sections it is provided that the name of every candidate, whose name has been properly certified, shall be on one and the same ballot; that sample ballots shall be in the county clerk’s possession seven days before election, subject to public inspection, and official ballots four days before election. It is also provided for posting of sample ballots, etc. An examination of these sections will show that the legislature has made ample provision for the correction of ballots prior to the election. And it would seem to be the duty of — 347 — candidates to make such objections in seasonable time. It is believed that it would not be in the interests of a fair expression of the-will of the people to allow a candidate, to lie by and not point out such objections as he may have to the form of the ballot until after the election has been held. If this be true contestor should have spoken before the election. The fundamental object of all election laws is the freedom and purity of the ballot. It is to be observed that the votei- has no control whatever over the publication of the names of candidates or the form of the ballots. If, for some defect in these particulars, the ballot must be rejected the door would be open to fraud. To defeat the will of the people it would only be necessary to have the county clerk furnish the electors, or some of them, with tickets slightly variant from those prescribed by law. It would seem to be the purpose of this section to give the opposing candidate ample opportunity to see that his opponent’s name was not upon an unauthorized ticket, or under a device to the use of which he was not entitled. We do not think that those decisions which have been cited, holding that all provisions of the statutes are mandatory, and that ballots should be rejected that are not in all particulars in conformity to the requirements of the act, are entitled to much weight in view of the provisions of this act. In order to make such decisions controlling it should appear that the provision for objection and amendment was equally as liberal in those states as under our statute. It may be said that all provisions of such laws are mandatory in the sense that the}'- place a duty upon those who come within their terms. But it does not follow that an election should be invalidated because of every departure on the part of public officers from the terms of the act. Bowers v. Smith, 17 S. W. Rep. 761. We do not feel at liberty to place a narrow construction upon this act. To overthrow the expressed will of a large number of voters for no fault of theirs, as we are asked to do, would be to defeat the purpose of all election laws, which is to obtain a full — 348 — and fair expression of the wishes of the voters. Kellogg v. Hickman, 12 Colo. 256. Something is predicated upon the fact that certain voters put a cross opposite the name of Glynn upon the tickets claimed to be irregular. This was necessary under the statute whenever a voter did not wish to vote for all the names-in a particular set of “ nominations.” If he desired to vote the entire ticket it was only necessary for him to put a cross near the emblem, but if there was the name of a single candidate he did not wish to vote for, included in the list, he was practically compelled to check the name of every candidate voted for in order that his ballot might not be counted for the candidate falling under his displeasure. It' affirmatively appears from this petition that all tickets voted had printed thereon in parallel columns the names of Glynn, Allen and Skelton. Now, if the voters, by putting a cross near the emblem upon the Peoples’ ticket, did not thereby intend to vote for all the candidates whose names were beneath, including Glynn’s, we would certainly have found a cross opposite the name of the opposing candidates, Allen or Skelton, according as the choice of the voter may have fallen upon the one or the other of these. It is certainty unreasonable to suppose, as the argument assumes, that voters to the number of 150 did not wish to vote for any candidate for this important office. There is no basis for any claim of fraudulent-intent on the part of the county clerks or either of them; on the contrary, it appears that Glynn was put in nomination by an independent party, and that he ran against the nominees of both of the old parties, to which parties the clerks owed allegiance. For failure to publish the names of candidates as required and for violations of the statute with reference to the printing of tickets, severe penalties are prescribed by the act. Under these circumstances we do not believe that the court would be justified in rejecting these 150 ballots because of the failure of the county clerks to make the proper publication, or for the reason that they improperly printed the name of con — 349 — testee under the device “ Cottage Home.” The case of Bowers v. Smith, supra, is strictly in point. In that case the Union Labor party, not having polled the requisite vote in the next preceding election, was not entitled as a party to put a ticket in the field. A ticket having been nominated, however, duly certified, and ballots printed and furnished to voters with such nominations, the court held that objection, because of insufficiency of votes at the previous election, must be made before such ballots were polled and not afterward. There is but one other matter reached by this motion. It is alleged in the complaint that the contestor was duly appointed to the office of district judge by the governor, and that he was the qualified and acting district judge at the time con-' testee assumed to discharge the duties of said office. This being an election contest pure and simple, and not a proceeding in the nature of quo warranto under the code, no question as to contestor Allen’s right to hold over under the original appointment can be considered. And for the reasons already given, paragraphs 12 to 15, inclusive, will be stricken out. Paragraphs 16 to 17 being properly in the complaint the motion as to these paragraphs will be overruled.