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2. SAMIC-CONTEST-DISMISSAL-RES JUDICATA.

Where an election contest was dismissed by contestant after answer and replication filed, over the objection of the contestee, such dismissal would not bar another contest depending on the same facts.

[Ed. Yote. For cases in point, see Cent. Dig. vol. 18, Elections, 8 302.) 3. SAME--CONTESTS-FINDINGS-REVIEW.

The Supreme Court will not set aside findings of fact by the trial court, especially in contested election cases, if such findings are supported by coinpetent testimony.

[Ed. Note-For cases in point, sée Cent. Dig. vol. 18, Elections, $ 329.] 4. SAME--VOTE-FRAUD--REJECTIOX.

Where fraud and irregularities occurred in the conduct of an election to such an extent that it is impossible for the contest tribunal to separate with reasonable certainty the legal from the illegal or spurious votes cast, the precinct wherein the fraud occurs should be excluded.

(Ed. Note.-For cases in point, see Ceut. Dig. vol. 18, Elections. $201.] .3. SAME-VOTE-EVIDENCE.

One of the judges of election in a particular precinct frequently left the polling place and remained away a considerable time while voting was going on, an unsworn substitute being appointed in his place. The judge became intoxicated and was compelled to sleep during much of the time the votes were being counted. When required to assist an illiterate voter, he refused. and requested other judges of another political party to do so, and "be sure to vote him

gainst" two prominent candidates. Illiterates Wire assisted in preparing their ballots without making affidavits ils to their illiteracy, and by unsworn interpreters. There were 290 more roles in the box than there were voters' names on the certified list, additional names being subsequently found on uncertified slips of paper. The count of the ballots was made largely by insworn and unauthorized persons, while the

lertion officers were either sleeping or sitting around smoking. the persons making the count being two of the deputies of contestee, and another a candidate for election. Many of the ballois were also marked on the outside with the number of the ballot, so as to be easily distinguished, and strangers were permitted to vote under the nanes of residents, many of whom were for the first time seen in the precinct a few days before election, and never thereafter. TIeld to constitute such fraud and irregularities as to require the rejection of the entire vote of the precinct, though certain legal voters would be disfranchised thereby. 6. SAME-CRIMINAL OFFENSES-DEFENSE.

Where acts of election officers in a particular precinct constituted gross fraud and willful violation of the law, the fact that such acts were criminal and could be prosecuted as such, did not propent the rejection of the vote of the precinct in which the acts occurred. Gunter and Steele, JJ., dissenting.

En Banc. 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.

W. M. Bates, W. B. Morgan, and C. S. Thomas, for appellant. James C. Starkweather, amicus curiæ, Elwell & Collins, and Eusebio (hacon, for appellee.

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 Pac. 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 gaineal 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 complaineil 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, anil, 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 No'vember a writ of injunction was issued froin 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 manda mus 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 De(ember 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

BAILEY, J. This matter was submitted to the court en banc, for the reason that the constitutionality of the law permitting

so iar as these two offices were affected was credited by the gross frauds and irregularities completed upon the 17th day of November. committed in said precinct by the judges and We cannot agree with this contention. The clerks of election and intermeddlers, that statute provides that the contest must be the entire rote of said precinct should be filed "within ten days after the date when rejected." This general finding is based the votes are canvassed.” This means all upon the further special findings that one of the votes. It does not mean a sufficient of the julges of election in precinct 31 was number to show that one or the other of the intoxicated, and was absent many times parties was elected, but it means the votes from the polling place during the casting of of the entire county and if for any reason i the ballots, was asleep during a large part one or more precincts are not canvassed, at of the time in which the ballots were counted; the time of the first sitting of the board, the that he electioneered against a portion of statute will not commence to run until those the Repulliian ticket in the polling place; precincts are canvassed, even though the re that a large number of foreigners, who were turns from those precincts when counteil design:tel and known as "strikers," were will not affect the result as between candi huddled together in quarters adjacent to, dates for any single office. If this is not true, and in the macaroni factory located in this then the time for the filing of the contest precinct; that these strikers were supported would be an uncertain period, because the by the strike committee and were not bona time would commence to run as soon as fide residents of the precinct; they cast their it was determined that the candidates for votes and immediately disappeared: persons one or more of the offices were elected. The who were not registered voted on the names period of 10 lays olid not commence to run of registeret voters who did not vote; that nntil after the 30th day of December, at persons were assisted in preparing their balwhich time the canvassing hoaril completed lots by interpreters who were not sworn; its canvass, under the direction of the dis that many persons were assisted who were trict court.

| not sworn as to their own inability, but no The second contention of appellant is that record of assistance was kept: a large numthis matter is res adjudicata. It appears ber of intruders and persons not sworn asthat, upon the 26th of November, 1904. apuel sisted in keeping the tallies or in reading lee instituted a contest against appellant off the ballots; that, during a portion of the for the same office, and growing out of the time, there was but one sworn officer assistsame election for which this contest was in ing in the counting and canvassing of the stituted. The statement of contest was an votes: two deputy clerks in the office of the swered and a replication filed and upon contestee unlawfully participated in the the 29th day of December, the cause came on count and canvass of the votes, neither of for hearing and was dismissed on the motion whom were sworn officers of said precinct, of contestor, over the objection of the con and said deputies are still holding office testee. It is insisted that this dismissal over under the contestee. The candidate for justhe protests and objections of the contestee tire of the peace upon the Democratic ticket was a bar to the right of appellee to institute assisted in counting the votes. The registra another proceeding of the same nature. Ital. tion in this precinct was greatly in excess lack v. Loft, 19 Colo. SO, 34 Pac... and of all previous elections; the secrecy of the other cases are cited in support of this con ballot was destroyed; almost every ballot tention. What the court said in the case hore a distinguishing mark, showing the mentioned was: "A judgment of non-uit or number of the ballot, and the hallots were mere dismissal is no har to another action not numbered in pen and ink, as required by for the same cause. * * * Our conclu law, but were folded and then marked with sions are that the judgment of dismissal is an indelible pencil in such a manner as to a final judgment and put an end to plaintiff's leave the number plain and visible upon a action, but that it was not it judgment upon portion of the hallot. The trial court in addithe merits and so did not put an end to his tion to its findings rendered an opinion in cause of action. He is therefore at liberty which it is stated that about 296 more ballots to rommence another action for the same were found in the box than appeared on the cause." The authority cited is in direct op pollins list kept br the clerks: that this irposition to the contention of appellant, and regularity was sought to be explained hy preis the rule of practice which has invariably senting some loose sheets of paper on which been adopted in this state. D. & R. G. R. R. 1. the names of 296 voters appeared, but that Co. v. Iles, 23 Colo, 19, 53 Pac. 222; Martin these loose sheets were not certified to, or v. JcCarthy, 3 Colo. App. 37, 32 Pac. 551; were not in any way authenticated, by the Freas v. Englebrecht, 3 Colo. 377: County proper election officials as being a part of Com. v. Schradsky, 31 Colo. 178, 71 Pac. 1104. the polling list. In Charles V. People's Ins. Co., 3 Colo. 419, Counsel for appellant contends that these it is stated that an order of dismissal is findings are all wrong, and are against the simply the blowing out of a candle that may weight of the testimony, and requests this he lighted at pleasure. The court found court that a thorough examination of the “that, in precinct 31, ward 4, city of Trinidad, abstract be made for the purpose of deterthe entire returns are so far vitiated and dis mining upon which side the testimony pre

87 P.-35

dominates. We have made a careful ex and that there was no intention to commit amination of the record, and find that there fraud. It requires a great deal of credulity is legal and competent testimony upon which to maintain that an election board in a the court might have made its findings. As city of the size and intelligence of Trinidad to the intoxication and electioneering of the could be so ignorant as not to know that the judge of election there is practically no dis law was transgressed most flagrantly by pute, and many of the other findings are sup every person employed in conducting this ported by a great preponderance of the testi election. The Australian ballot law was mony. However, it will serve no good pur enacted for the purpose of promoting purity pose to analyze the testimony of the several of elections, and, if it should be said that witnesses for the purpose of determining the fact that one of the judges of election whether the findings are supported by a pre frequently left the polling place and remainponderance of the testimony or not. If there ed away for considerable periods while yotis anything that is well settled in this state, ing was going on, an unsworn substitute beit is that this court will not set aside the ing appointed in his place, this continuing findings of fact of the trial court if they are until the judge became so intoxicated as to supported by competent testimony. Jordan be incapacitated for duty and compelled to v. Greig, 33 Colo. 360, 80 Pac. 1045; Gwynn sleep during much of the time that the votes v. Butler, 17 Colo. 114, 28 Pac. 466. And were being counted; that, when requested to this is particularly true in cases of contesto assist an illiterate voter, he refused, and reed election. Leighton v. Bates, 24 Colo. 311, quested the other judges, who were of an50 Pac. 836, 858; 3 Current Law, 1177. The other political party, to do so and to be sure findings of the court, being supported by legal to vote him against two prominent candidattestimony, will not be disturbed.

es; that a judge of election can use his posiIt is urged with great force that the vote tion to electioneer against certain candidates; of this precinct should not be rejected, be that alleged illiterates could be assisted in cause by rejecting it legal electors who hon the preparation of their ballots without makestly cast their ballots will be disfranchised ing aflidavit as to their illiteracy, as the and will have lost their right to vote, through law demands; that illiterates could be assistno fault of theirs, but because of the mis ed by unsworn interpreters; that where 296 conduct of others. There is force in this con

more votes were found in the ballot box than tention. If possible to avoid it, the innocent there were voters named on the certified list should never lose their votes because of the as having voted, but the additional names misconduct or the negligence of others, but, were found upon uncertified slips of paper; under our form of government, if there is that the count of the ballots was made in a anything that should be held sacred, it is

large part by unsworn and unauthorized perthe ballot, and, if the aspirants for office, the sous while the election officers were either election officials, and the party leaders so far asleep or sitting around smoking, the persons forget themselves as to commit, or permit the making the count being two of the deputies commission of, gross frauds, so that the will

of contestee, and another a candidate for of the legal electors cannot be determined, election; that, during the counting of the there is nothing left for the courts to do votes, the room was crowded with onlookers but to set aside the election in the precincts who added to the confusion and opportunities contaminated by such fraudulent conduct. for mistake; that very many of the ballots Atty. Gen. es rel. v. Stillson, 10S Mich. 414, were marked on the outside with the number 66 N. W. 388. Where fraud and irregular of the ballot, so that they could be easily disities occur in the conduct of an election to tinguished; that persons other than the such an extent that it is impossible for the judges of election prepared some of the balcontest tribunal to separate with reasonable lots for illiterates; that strangers were percertainty the legal from the illegal or spu mitted to vote under the names of residents; rious votes, the precinct wherein the fraud that many of the people who were permitted occurs should be excluded. This is the well to vote were, for the first time, seen in the settled law. If this were not the law, one precinct but a few days before election, and or two precincts in which the election is never after-should be looked upon as mere fraudulently conducted could practically dis irregularities which do not affect the purity franchise the legal voters of all the remain of the, ballot, then we are unable to detering precincts in the county. If any persons | mine what conduct will be sufficient to set are to lose their votes by reason of the mis aside the election. To give judicial sanction conduct of the election officials, it should be to such actions is but to put a premium upthose who reside in the precinct wherein the on fraud and political corruption. To suffer wrongdoing occurs, rather than to have the an election to be held as was done in this legal and honest votes in honest precincts | precinct would be to abandon all safeguards overcome by fraudulent conduct taking place provided by the law of the land for insuring in other precincts over which they have no a fair and equal election by secret ballot. control.

Banks v. Sergent, 104 Ky. 849, 48 S. W. 149:

It is irregularities in this precinct were the result not enough to say that these offenses are of accident, or occasioned by mere oversight, criminal and can be prosecuted as such.

It is seriously contended that many of the Combs v. Eversole (Ky.) 70 S. W. 638

.

for the preservation of pure elections, will become a machine in aid of corruption.

Appellant earnestly contends that the court erred in not excluding entirely the vote of precinct No. 46, otherwise known as "Primero."

The contention is based exclusively upon matters of fact concerning which the testimony was conflicting. The court found that the integrity of the ballot had not been impaired, that the illegal ballots could be easily separated from the legal ones, and this it proceeded to do. The trial court heard the testimony, and saw the witnesses, and was better able to determine their credibility than we are, consequently his findings in this respect will not be disturbed. We must again say that this court is not sitting to review matters of fact passed upon by the trial court in election cases, where the testimony is conflicting.

This practically disposes of the case. While many other alleged errors are discussed in the briefs, they are for the most part based upon disputed facts, and we are not inclined to disturb the finding of the court in such matters. However, if we should determine each of the remaining matters in the manner contended for by appellant, it would not affect the result.

The trial court having committed no substantial error, the judgment will be affirmed.

Aflirmel.

This does not stop the fraud; it simply necessitates the procuring of other implements for the next election. If those for whose benefit the wrong is perpetrated fail to profit by it, the misconduct will soon cease.

But, it is said, that there was no fraud intended, and that there is nothing to show that contestor suffered on account of any of these things. This will not avail. The conduct of election officials may, though actual fraud be not apparent, amount to such culpable negligence as to render their doings unworthy of credence. If the misconduct has the effect of destroying the integrity of the returns and avoiding the prima facie character which they ought to bear, such returns should be rejected. McCrary on Elections, SS 188-540. In Tebbe v. Smith, 41 Pac. 157, 29 L. R. A. 676, 49 Am. St. Rep. 68, the Supreme Court of California, in relation to the irregular conduct of an election says: "In this we are quite willing to believe that the misconduct of the officers of Lake precinct was prompted by nothing worse than ignorance, and lack of appreciation of the responsibility of their position, and we may say further, that no harm is shown to have resulted from this conduct, but looking to the purity of elections, and the integrity of the ballot box, we are constrained to hold that conduct like this amounts, in itself, to such a failure to observe the substantial requirements of the law as must invalidate the election.” In Sweeny v. Hjul, 23 Nev. 409, 48 Pac. 1036, 49 Pac. 169, it appeared that in a certain precinct the election judges neglected to remove the perforated slip containing the printed number of the ballot. There was no allegation of fraud, yet the vote of the entire precinct was thrown out because these ballots could be thus distinguished. There is no difference in principle between that case and this one, where the marking was done with pencil instead of ink, and in such a manner as to leave the carbon impression of the number on the ballot. In Kelso v. Wright, 81 N. W. 805, the Supreme Court of Iowa held that what constitutes an identifying mark upon a ballot is a question of fact for the trial court, and the finding is conclusive upon appeal. In Attorney General v. McQuad, 94 Mich. 439, 53 N. W. 944, it is held that the provisions of the election law require the voter to enter the booth alone and prepare bis ballot concealed from view, and the section providing for the marking of the ballots of illiterates is mandatory and must be strictly adhered to or the vote rejected. See, also, Attorney General v. May, 99 Mich. 538, 58 N. W. 483, 25 L. R. A. 325. Here it is found by the trial court that many persons who were assisted were not sworn as to their liability, and no record of assistance was kept. If this can be permitted, then the provisions of the law are without avail. It will be possible for any number of voters to market their votes and call in the judges to see the goods properly delivered, wherefore this act, made

GODDARD, J., did not participate. GUNTER and STEELE, JJ., dissent.

(36 Colo. 242) STICKLEY V. MULROONEY et al.

(Supreme Court of Colorado. Jan. 8, 1906.) TEXANCY IN COMMON-CONTRIBUTION-UNAUTHORIZED EXPENDITURES.

In an action by one co-owner against the other co-owners of mining property, for an accounting, defendants, on the order of the court, paid into the registry the amount of money which the court found they held as trustees for plaintiff. Thereafter defendants, without plaintiff's consent, made expenditures in development or prospecting in the mining property. Held, that they were not entitled to ask contribution from plaintiff out of the fund in court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Tenancy in Common, SS 92-94, 105.]

Appeal from District Court, Lake County ; Frank W. Owers, Judge.

Action by B. F. Stickley against Patrick Mulrooney and others. From an order directing that part of the sum deposited in court be paid by the clerk to defendants, plaintiff appeals. Reversed.

John A. Ewing and Patterson, Richardson & Hawkins, for appellant.

STEELE, J. The plaintiff (appellant here), in his complaint filed in the district court of Lake county, alleged that he, at the time

of the filing of the suit, was the owner in court refused. The plaintifi' never granted fee of an undivided one-sixteenth interest in permission to the defendants to expend monthe Greenback Lode mining claim situate in ey in his behalf in the working of the propersaid county. Ile further alleged that the said ty; and it was stated on cross-examination mining claim was of great value, and that that the plaintiff never notified the defendhis co-owners, since the year 1894, had been ants herein not to work the property. extracting large quantities of gold, silver, The judgment must be reverseil. It apand lead bearing ores therefrom; and that, pears to be well settled that one co-owner, after paying the legitimate expenses of min without the consent of the other co-owners, ing and extracting the ore and mineral from cannot demand from the co-owners who have said premises, the defendants had realized a not joined with him or in some way given. large sum of money, to wit, the sum of their consent to the development or prospect$160,000. IIe prayed judgment for the sum ing in mining property remuneration for exof $10,000, for an accounting, and for an penses incurred in so prospecting or developinjunction restraining the defendants from in ing the common property. At the time the any manner disposing of the proceeds arising deposit was paid into the registry of the from the premises, and that the said injune court the mine had been operated for sertion be made perpetual. Later, he applied eral years by the owners of fifteen-sixteenthis for a receiver. The ipplication for the re interests in the property, and a large profit ceiver was denied; but the court, finding had been realized from the ore. After this that the defendants had certain sums of mon division of profits was made, the mine was ey in their hands which they held as trustees shut down. Thereafter the owners of the for the plaintiff, ordereil paid into the regis- | majority interests began further developinent try of the court the amount of money due and prospecting, and spent large sums in such to Stickley as the owner of the one-sixteenth work as well as in the purchase of machinery, interest in the property. In June, 1901, the and it is for this they ask contribution from defendants filed a petition in the district the plaintiff, and it was for these expendicourt setting forth that they were owners of tures that the court ordered the sum of an undivided fifteen-sixteenths interest in the $1,500 withdrawn from the registry. After said lode and that the title to the one-six a balance has been struck, and a division of teenth interest was in dispute. They further profits made, under the circumstances present represented that they had been operating in this case, if the owners of a majority insaid premises for many years past, and that terest desire to make further exploration of on or about the 28th of September, 1900, the property they have a right to do so, but there had been a profit re:ulized to the one they cannot require the minority owners to sixteenth interest of upwards of $6,400, and contribute their share of the expense inthat that amount had been paid into the curred in so doing out of the profits divided. registry of the court pursuant to the order They must get contribution, if at all, from of the court. They further set forth in said the further profits realized from the property. petition that since the said 28th of Septem "A co-tenant in possession, whether his in ber no proceeds had been realized from the terest be large or small, cannot bind those operation of said premises, and that since who do not voluntarily participate in the the last order of court there had necessarily venture. He cannot force contribution for been incurred a certain indebtedness for and improvements made, nor for the cost and exon behalf of the interests in said Greenback pense of developing or working." Lindley Lode amounting to upwards of $32,000; and on Mines, p. 1422. Neuman v. Dreifurst, 9 praying the court for an order to withdraw Colo., 228, 11 Pac. 98; Rico Red. & Min. from the registry of the court the sum of Co. v. Musgrave, 14 Colo. 79. 23 Pac. 458; $1,500. This application was resisted, and Brunswick et al. v. Winter's Heirs, 3 N. M. a hearing was had. The court ordered the 211, 5 Pac. 700. sum of $1,500 to be paid by the clerk to the The judgment is reversed. defendants. The plaintiff appealed to the court of appeals.

The CHIEF JUSTICE and CAMPBELL, It appears from the testimony taken that

J., coniur. the mine was shut down, and filled with water, in July, 1900; that the water remained in the shaft from July until January, 1901,

(36 Colo. 261) and that the money expended had been ex

CHRISTY V. CAMPBELL. pended in exploration and in sinking the (Supreme Court of Colorado. Jan. 8, 1906.) shaft. It further appears that there were 1. APPEAL AND ERROR PARTIES – SEPARATE no shipments made from the mine after June, APPEAL. 1900; that the shaft had been sunk about Under Mills' Ann. Code, $ 100, authorizing 125 feet, and that much of the money which

a separate appeal, and providing that for the

purposes of appeal the party appealing shall it was stated had been expended upon the be permitted to use the name of all persons property had been expended in buying a against whom judgment was rendered, where plant of machinery. The plaintiff requested

judgment was rendered in the district court

against the principal and suretics on a bond the court to require the defendants to give

given to carry the case by appeal from the counbond for the return of the $1,500, which the ty to the district court it was not necessary for

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