Nicholls v. Barrick, 27 Colo. 432

Nicholls v. Barrick

27 Colo. 432 | Colo. | 1900

Mr. Justice Gabbert

delivered the opinion of the court.

1. The bond for costs required by the statute in proceedings of this character is for the benefit of the contestee. Whether it be given or not in the first instance, does not affect the jurisdiction of the court. If none be given when the action is commenced, or if the one accepted be insufficient, it is incumbent upon the contestee, to object at the earliest opportunity ; otherwise, he will waive his rights in this respect. In the case at bar he made no objection to the bond until after issues were joined, and the cause set for trial. The motion to dismiss was in the nature of a plea in abatement, which he could not interpose after answering on the merits. Trustees v. Walters, 12 Ill. 154; Randolph v. Emerick, 13 Ill. 344; Yocum v. Waynesville, 39 Ill. 320.

The bond in cases of this character should be conditioned for the payment of all costs, and not in any specified penalty. It being intended, however, to secure the contestee the re*439payment of any costs to which he might become entitled, he is not in a position to complain of the action of the court, in refusing to order a bond conditioned as the statute requires, in the absence of a showing upon his part that the penalty of the bond accepted was insufficient to cover the probable costs which he might incur in the case.

The application addressed to the trial judge, requesting him to call in another judge to try the cause, was not presented until the date set for the trial of the action. This application was based upon the alleged prejudice of the trial judge, in that he had made statements to the effect that the ballots in question should be counted in favor of the contestar. This statement appears to have been made some thirty days before the petition for a change of judges was presented. It does not appear when contestee first obtained knowledge that this statement had been made. Whether or not what the judge is said to have stated regarding the merits of this controversy was sufficient to disqualify him from trying the cause, it is not necessary to determine, as the petition should have been presented within a reasonable time after contestee was advised that it had been made. In view of the fact that thirty days had elapsed between the date when the trial judge is said to have made the statement attributed to him, and the time when the petition for a change was presented, in connection with the fact that no excuse is offered why this petition was not filed at an earlier date than it was, we are of the opinion that it came too late, and was, therefore, properly overruled. In this connection we suggest that a judge should refrain from expressing an opinion upon the law of any case pending, or likely to come before the court over which he presides, until properly submitted for his determination.

The object of the statute in requiring the judge to fix a day for the trial of the cause not more than twenty days after issue is joined, is for the purpose of enabling a speedy trial. This is for the benefit of both parties. They may waive this provision; that is what they did in this case by stipulation, and contestee thereby having consented to fixing *440the date of the trial of the cause at a period greater than twenty days after issue was joined, cannot complain of the results of his own voluntary acts.

2. It is urged that the statement of contest filed by contestor is not sufficient in that it contains no averment regarding his qualifications to hold the office of sheriff. The act under which this proceeding was commenced is special in character, and furnishes a complete system of procedure within itself. Schwartz v. County Court, 14 Colo. 44. The statute provides what the statement of contest shall contain, and it is only necessary to set out in such statement the averments and matters required by the statute in order to state a cause of action. This the contestor did, and his statement was, therefore, sufficient.

8. A party cannot maintain an action to contest an election until after the votes are canvassed by the canvassing board. That body, in case of' a tie between two or more persons for the same office, having a higher number than any other person, shall determine by lot which of the candidates is elected. This constitutes part of its duty as a canvassing board, and its determination, in case of a tie, must be settled in the way pointed out by the statute. Such action does not settle the question of the legality of any votes canvassed, or estop the defeated party from asserting that votes counted for his opponent were illegal.

4. In support of the proposition that the court erred in counting for contestor the forty-three ballots in question, counsel for appellant contend that the act over which the voter has control are mandatory, and that, therefore, these ballots were illegal, for two reasons: (1) Because not marked as required by law; (2) that the marks employed distinguish them from other ballots cast at the election.

Many authorities are cited in support of these propositions. As to the first, the conclusion of the courts so holding appears to be based upon the construction of particular statutes controlling elections under the Australian ballot system; that the provisions of such statutes relative to marking bal*441lots are mandatory, and that nothing short of a substantial literal compliance with the requirements of the law in this respect would suffice. Having so construed the statute in a given case, it logically follows that a ballot not marked as the law prescribed could not be counted. In the case at bar, however, these authorities are of but little assistance, as the decision of the question now under consideration must rest upon a construction of our own statute. With the second we are not concerned, because the marks employed upon the tickets are not of a character which distinguish them from other ballots cast, any more than if the voters had employed a straight political party name, instead of the word “fusion.”

The prime object of all election laws is to obtain an honest expression of the voters on all questions submitted to them. The Australian ballot was adopted because it was believed that thereby bribery would be frustrated, and the voters freed from the equally pernicious influence of coercion and surrounding conditions. In considering the details of the act, the result sought to be accomplished must not be overlooked. Dickerman v. Gelsthorpe, 47 Pac. Rep. 999.

Our statute requires that the ballot be marked in a certain way. The main object of this requirement is to obtain an expression of the voters upon any question submitted to their determination, uninfluenced by the acts of others. All voters are not endowed with the same ability to construe a statute, or to understand instructions directing the manner in which ballots should be prepared. Even if they were, it would not be surprising if they failed to agree. The legislature undoubtedly has the power to prescribe reasonable restrictions under which the right to vote may be exercised. If it declares a ballot void under certain conditions, the courts must so hold; but no voter should be disfranchised, or ballot held void, upon a doubtful construction. All statutes which tend to limit the voter in the exercise of his right should be liberally construed in his favor. Tibbe v. Smith, 108 Cal. 101; Owens v. State, 64 Tex. 500.

*442This court has held that a ballot should be admitted if the spirit and intention of the law is not violated, even though not literally in accordance with its provisions ; and that unless the statute declares that a strict compliance with its requirements by the voters is essential to have their ballots counted, the courts will not undertake to disfranchise them if, in the attempted exercise of their right, there is manifestly an effort to comply in good faith with the statutory requirements. Kellogg v. Hickman, 12 Colo. 256 ; Young v. Simpson, 21 Colo. 460. See, also, Bechtel v. Albin, 134 Ind. 193; State v. Fawcett, 49 Pac. Rep. 346.

The intention of the voter, as expressed upon the face of his ballot, has always been regarded as the cardinal principle controlling the count. Under a system providing for balloting like the Australian, it is necessary that certain rules be prescribed to prevent confusion and secure uniformity. By this means the intention of the voter is to be ascertained; but when the statute does not declare, either expressly or by necessary implication, that particular informalities with respect to the marking of ballots render them illegal, it is a misconception to treat the requirements for this purpose as controlling essentials, instead of the means by which the object sought to be obtained shall be determined. Wigmore Aus. Ballot System (2d ed.), 193; Waggoner v. Russell, 34 Neb. 116; Spurgin v. Thompson, 37 Neb. 39.

That the legislature had in view the probabilities that in some instances ballots would not be marked precisely as the law specified, is apparent from the provisions relative to imperfect and defective ballots, as also those improperly marked, which do not, in fact, obscure the intention of the voter. At least, there is nothing in our statutes, so far as we are able to find, from which it can be inferred that unless voters mark their ballots in the manner required by the law, that they should not be counted. In the absence of such provisions, a construction holding that the provisions relative to the marking of ballots was mandatory, in the sense that they must be strictly observed, would result in sacrificing substance to form, *443by treating tbe features of detail as of tbe essence of the law. State v. Fawcett, supra ; Wigmore Aus. Ballot System, supra ; Waggoner v. Russell, supra ; Spurgin v. Thompson, supra.

Tested by these rules, our construction of the statute is, that if a ballot is substantially marked as the law requires, and from such marking the intention of the voter can be ascertained, the ballot is legal, and should be counted. Filling in the blank at the head of the ticket is one of the ways designated by the statute for the voter to indicate his choice of candidates. It may be that if a ballot was so marked that it violated some provision of law, either expressly or by necessary implication, it would be rendered illegal, and the intention of the voter would be immaterial as against an express violation of the statute. It is not necessary, however, for us to determine that question in this case, because it is not presented.

The final question on the subject under consideration is, whether or not the intention of the voters who cast the ballots in question can be determined, from the markings which they employed to designate their choice of candidates as between the parties to this action. The contestor was the candidate of several different parties-; in other words, they had all united upon him as against his opponent. So with the other candidates for county officers. It is a well known fact, that certain political parties in this state for several years ■ last past, at state, county and municipal elections, claiming practically to advocate the same principles, have united upon the same candidates for office, as against a political party which they claimed opposed these principles. This action of several political parties uniting in the way indicated is spoken of generally, through the press and by the people, as “fusion.” The Standard Dictionary defines the word to mean “ The act of coalescing two political parties, or the state of coalescence; used, also, attributively as a fusion ticket.” See, also, Century' Dictionary. Courts take judicial notice of those matters which may be desig*444nated“ common knowledge.” 1 Greenleaf on Evidence, § 6; Watson v. State, 55 Ala. 158.

It is not necessary to prove the meaning of terms which, from continuous use, have acquired a definite signification. Watson v. State, supra; U. S. Express Co. v. Keefer, 59 Ind. 263.

It is unnecessary, therefore, to resort to extraneous evidence for the purpose of ascertaining the choice of voters upon the forty-three ballots in question, as between the parties to this action. By employing the word “ fusion ” upon these ballots, there can be no doubt but that each of the voters so marking his ballot intended to vote for the contestor. In effect, he was a fusion candidate upon a fusion ticket. It being clear that these ballots were intended to be cast for the contestor, the judgment of the trial court in so holding was correct, and it is, therefore, affirmed. The costs of this appeal will be taxed to the appellant.

In conclusion, we suggest that the legislature has wisely simplified the official ballot, and also the manner of voting; that it is the duty of every voter to familiarize himself with the law governing the preparation of ballots, and .to follow its provisions on this subject; and that a disregard of the law in this respect is at the peril of the voter so doing.

Judgment affirmed.