Smith v. Harris

| Colo. | Jan 15, 1893

Per Curiam.

The illegality complained of. in the first cause of contest consists in the printing of the names of Higley, Berry, Overholt and Hanchett as presidential electors upon the ticket designated as the rooster ticket.

That by reason of the printing of thos'e names thereon a large number of voters refused and declined to vote that ticket, and thereby contestor lost their votes. The insufficiency of this claim to entitle contestor to the office seems to be conceded by his counsel in his argument; but it is insisted that if insufficient for that purpose, it should be held adequate cause for voiding the election.

If it be conceded that the secretary of state acted illegally in certifying those names, in accordance with a certificate of their nomination by the committee, without their acceptance being first had, or in refusing to certify their declination and therefore the names were illegally printed upon that ticket, —such illegal action could in no way affect other candidates properly printed thereon — much less affect other ballots legally and properly certified and printed.

The misconduct of the secretary of state (if his action can be held to be such), in wrongfully certifying the names of these particular candidates, could not deprive voters of their franchise, or destroy the efficacy of their ballots cast for other candidates who were legally and properly nominated and certified.

To this effect is the decision of this court in Allen v. Glynn, 17 Colo. 338" court="Colo." date_filed="1892-01-15" href="https://app.midpage.ai/document/allen-v-glynn-6562237?utm_source=webapp" opinion_id="6562237">17 Colo. 338.

' The remedy, if any existed, for the alleged misconduct of the secretary of state, should have been sought in a proper proceeding against him. It was not properly invoked in this case. It was the duty of the county clerk to cause to be printed the names as certified to him. Sec. 17, p. 150, Laws of 1891.

If such nominations were improperly certified, it constituted no such error or omission * * * in the publication of the name or description of the candidates as the county clerk was authorized to correct under sec. 20, p. 152, Laws of 1891.

The second cause of contest is of the same purport, with the additional fact alleged that the county clerk refused to print contestor’s name upon the “ Miner ” ticket. Whether it was the duty of the clerk to so print it, we have no means of knowing. It is alleged that a democratic county convention nominated and certified to the county clerk a list of candidates, including contestor’s name; that the convention neglected to select or designate any emblem. It appears that there were two factions of the democratic party, and that each held a separate state convention; but it nowhere appears which wing or faction of the democratic party this county convention represented. Unless the convention represented the party that selected the miner as the emblem for the state ticket its nominees were not entitled to have their names printed on that ticket. The eontestor had no right to have his name on more than one ticket by reason of his nomination by that convention. We cannot, therefore, determine whether the county clerk acted illegally in this particular or not; and we must indulge the presumption that his acts were legal and proper.

The third cause as alleged is obnoxious to demurrer for indefiniteness. The fourth and fifth are insufficient under the rule announced in Todd v. Stewart, 14 Colo. 286" court="Colo." date_filed="1890-01-15" href="https://app.midpage.ai/document/todd-v-stewart-6561916?utm_source=webapp" opinion_id="6561916">14 Colo. 286.

The same particularity is required in stating causes of contest in this court under rule 39 as in cases of other county officers under the statute.

Demurrer is sustained as to the first and third grounds and overruled as to the second.