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2. SAMI-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. Xote-For cases in point, see Cent. Dig. vol. 18, Elections, $ 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 competent testimony.

[Ed. Note-For cases in point, see 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 Cent. Dig. vol. 18, Elections. 201.] .). SAME--VOTE--EVIDENCE.

One of the judges of election in a particular precinct frequently left the polling place and remained away a considerable time whiie 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 requentrul to assist an illiterate voter, he refused, und requested other judges of another political party to do so, and “be sure to vote him

gainst" two prominent candidates. Illiterates Ware 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 certifinal list, additional names being subsequently found on uncertified slips of paper. The count of the ballots was made largely by Unsworn and unauthorized persons, while the plertion 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 names of residents, many of whom were for the first time seen in the precinct a few days before election, and never thereafter. IIcld 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 prevent 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 Chacon, 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 gained 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 exclucleil by the trial court, thus making contestor's plurality 2055.

The first error complained 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 rotes 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, anıl, on the same day, from the county court of Las Animas county, an alte"native 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 from 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 far 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 vote 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 judges 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 Repullivan 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 days did not commence to run of registerert voters who did not vote; that until 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 į record of :ssistance 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. appel- 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 assistsaame election for which this contest was in- ing in the counting and canvassing of the stituted. The statement of contest was all- 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 canrass of the votes, neither of for hearing and was dismissed on the motion whom were worn officers of saill precinot, of contestor, over the objection of the con- and said deputies are still holding office testee. It is insisted that this dismissal nyer under the contestee. The candidate for justhe protests and objections of the contestee tice of the peace upon the Democratic ticket was a bar to the right of appeller to institute assisteil in counting the votes. The registra another proceeding of the same nature. Ital. tion in this prerinct was creatly in excess lack v. Loft. 19 Colo. SO, 34 Pac... and of all previous elections: the serrery 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 bore a distinguishing mark, showing the mentioned was: "A judgment of non-uit or number of the hallot, 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 a judgment upon portion of the ballot. 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 by 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. | the names of 296 voters appeared, but that Co. v. Ilcs, 25 Colo. 19, 53 Pac. 222: Martin these loose sheets were not certified to, or v. McCarthy, 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 be 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. 300, 80 Pac. 1045; Gwynn sleep during much of the time that the votes v. Butler, 17 Colo. 114, 23 Pac. 466. And were being counted; that, when requested to this is particularly true in cases of contest- assist an illiterate voter, he refused, and reed election. Leighton v. Bates, 24 Colo. 311, quested the other judges, who were of an50 Pac. 856, 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 sons 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. ex 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 seriously contended that many of the Combs v. Eversole (Ky.) 70 S. W. 638. 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

criminal and can be prosecuted as such. ero."

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This does not stop the fraud; it simply ne- for the preservation of pure elections, will
cessitates the procuring of other implements become a machine in aid of corruption.
for the next election. If those for whose Appellant earnestly contends that the court
benefit the wrong is perpetrated fail to profit erred in not excluding entirely the vote of
by it, the misconduct will soon cease.

precinct No. 46, otherwise known as "PrimBut, it is said, that there was no fraud

The contention is based exclusively intended, and that there is nothing to show upon matters of fact concerning which the that contestor suffered on account of any of testimony was conflicting. The court found

. these things. This will not avail. The con- that the integrity of the ballot had not been duct of election officials may, though actual impaired, that the illegal ballots could be fraud be not apparent, amount to such cul- easily separated from the legal ones, and pable negligence as to render their doings un- this it proceeded to do. The trial court heard worthy of credence. If the misconduct has the testimony, and saw the witnesses, and the effect of destroying the integrity of the was better able to determine their credibility returns and avoiding the prima facie char- than we are, consequently his findings in acter which they ought to bear, such returns this respect will not be disturbed. We must should be rejected. McCrary on Elections, SS again say that this court is not sitting to 188-540. In Tebbe v. Smith, 41 Pac. 157, 29 review matters of fact passed upon by the L. R. A. 676, 49 Am. St. Rep. 68, the Supreme trial court in election cases, where the testiCourt of California, in relation to the irreg- mony is conflicting. ular conduct of an election says: "In this This practically disposes of the case. While we are quite willing to believe that the mis- many other alleged errors are discussed in conduct of the officers of Lake precinct was the briefs, they are for the most part based prompted by nothing worse than ignorance, upon disputed facts, and we are not inclined and lack of appreciation of the responsibility to disturb the finding of the court in such of their position, and we may say further, matters. IIowever, if we should determine that no harm is shown to have resulted from each of the remaining matters in the manner this conduct, but looking to the purity of contended for by appellant, it would not elections, and the integrity of the ballot box, affect the result. we are constrained to hold that conduct like The trial court having committed no subthis amounts, in itself, to such a failure to stantial error, the judgment will be affirmed. observe the substantial requirements of the Aflirmed. law as must invalidate the election." In Sweeny v. Hjul, 23 Nev. 409, 48 Pac. 1036, 49 GODDARD, J., did not participate. GUNPac. 169, it appeared that in a certain precinct TER and STEELE, JJ., dissent. the election judges neglected to remove the perforated slip containing the printed number of the ballot. There was no allegation of

(36 Colo. 242) fraud, yet the vote of the entire precinct was

STICKLEY V. MULROONEY et al. thrown out because these ballots could be

(Supreme Court of Colorado. Jan. 8, 1906.) thus distinguished. There is no difference in

TEXANCY IN COMMON-CONTRIBUTION-UNAUprinciple between that case and this one,

THORIZED EXPENDITURES. where the marking was done with pencil In an action by one co-owner against the instead of ink, and in such a manner as to other co-owners of mining property, for an acleave the carbon impression of the number

counting, defendants, on the order of the court,

paid into the registry the amount of money on the ballot. In Kelso v. Wright, 81 N. W.

which the court found they held as trustees for 805, the Supreme Court of Iowa held that plaintiff. Thereafter defendants, without plainwhat constitutes an identifying mark upon

tiff's consent, made expenditures in development a ballot is a question of fact for the trial

or prospecting in the mining property. Held,

that they were not entitled to ask contribution court, and the finding is conclusive upon ap- from plaintiff out of the fund in court. peal. In Attorney General v. McQuad, 94 [Ed. Note.--For cases in point, see Cent. Dig. Mich. 439, 53 N. W. 944, it is held that the vol. 45, Tenancy in Common, $$ 92-94, 105.] provisions of the election law require the Appeal froin District Court, Lake County ; voter to enter the booth alone and prepare Frank W. Owers, Judge. his ballot concealed from view, and the sec

Action by B. F. Stickley against Patrick tion providing for the marking of the ballots

Mulrooney and others. From an order diof illiterates is mandatory and must be strict

recting that part of the sum deposited in ly adhered to or the vote rejected. See, also,

court be paid by the clerk to defendants, Attorney General v. May, 99 Mich. 538, 58 N.

plaintiff appeals. Reversed. W. 483, 25 L. R. A. 325. Here it is found by the trial court that many persons who were

John A. Ewing and Patterson, Richardson assisted were not sworn as to their liability,

& Hawkins, for appellant. 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 STEELE, J. The plaintiff (appellant here), votes and call in the judges to see the goods in his complaint filed in the district court properly delivered, wherefore this act, made of Lake county, alleged that he, at the time

of the filing of the suit, was the owner in fee of an undivided one-sixteenth interest in the Greenback Lode mining claim situate in said county. Ile further allegedl that the said mining claim was of great value, and that his co-owners, since the year 1894, had been extracting large quantities of gold, silver, and lead bearing ores therefrom; and that, after paying the legitimate expenses of mining and extracting the ore and mineral from said premises, the defendants had realized a large sum of money, to wit, the sum of $160,000. IIe prayed judgment for the sum of $10,000, for an accounting, and injunction restraining the defendants from in any manner disposing of the proceeds arising from the premises, and that the said injunetion be made perpetual. Later, he applied for a receiver. The ipplication for the receiver was denied; but the court, finding

; that the defendants had certain sums of money in their hands which they held as trustees for the plaintiff, ordered paid into the registry of the court the amount of money due to Stickley as the owner of the one-sixteenth interest in the property. In June, 1901, the defendants filed a petition in the district (ourt setting forth that they were owners of an undivided fifteen-sixteenths interest in the said lode and that the title to the one-sixteenth interest was in dispute. They further represented that they had been operating said premises for many year's past, and that on or about the 28th of September, 1900, there had been a profit re:alized to the onesixteenth interest of upwards of $0.400, and that that amount had been paid into the registry of the court pursuant to the order of the court. They further set forth in said petition that since the said 28th of September no proceeds had been realized from the operation of said premises, and that since the last order of court there had necessarily been incurred a certain indebtedness for and on behalf of the interests in said Greenback Lode amounting to upwards of $32.000; and praying the court for an order to withdraw from the registry of the court the sum of $1,500. This application was resisted, and a hearing was had. The court ordered the sum of $1,500 to be paid by the clerk to the defendants. The plaintiff appealed to the (court of appeals.

It appears from the testimony taken that the mine was shut down, and filled with water, in July, 1900; that the water remained in the shaft from July until January, 1901, and that the money expended had been expended in exploration and in sinking the shaft. It further appears that there were no shipments made from the mine after June, 1900; that the shaft had been sunk about 125 feet, and that much of the money which it was stated had been expended upon the property had been expended in buying a plant of machinery. The plaintiff requested the court to require the defendants to give bond for the return of the $1,500, which the

court refused. The plaintif never granted permission to the defendants to expend money in his behalf in the working of the property; and it was stated on cross-examination that the plaintiff never notificd the defendants herein not to work the property.

The judgment must be reversel. It appears to be well settled that one co-owner, without the consent of the other co-owners, cannot demand from the co-owners who have not joined with him or in some way given. their consent to the development or prospecting in mining property remuneration for expenses incurred in so prospecting or developing the common property. At the time the deposit was paid into the registry of the court the mine had been operated for sereral years by the owners of fifteen-sixteenths interests in the property, and a large profit had been realized from the ore. After this division of profits was made, the mine was shut down. Thereafter the owners of the majority interests began further developinent and prospecting, and spent large sums in such work as well as in the purchase of machinery, and it is for this they ask contribution from the plaintiff, and it was for these expenditures that the court ordered the sum of $1,500 withdrawn from the registry. After a balance has been struck, and a division of profits made, under the circumstances present in this case, if the owners of a majority interest desire to make further exploration of the property they have a right to do so, but they cannot require the minority owners to contribute their share of the expense incurred in so doing out of the profits divided. They must get contribution, if at all, from the further profits realized from the property. "A co-tenant in possession, whether his in terest be large or small, cannot bind those who do not voluntarily participate in the venture. He cannot force contribution for improvements made, nor for the cost and expense of developing or working.” Lindley on Mines, p. 1422. Neuman v. Dreifurst, 9 Colo., 228, 11 Pac. 98; Rico Red. & Min. Co. v. Musgrave, 14 Colo. 79, 23 Pac. 458; Brunswick et al. v. Winter's Heirs, 3 N. M. 2411, J Pac. 706.

The judgment is reversed.

The CHIEF JUSTICE and CAMPBELL, J., Concur.

(36 Colo. 261) CIRISTY V. CAMPBELL. (Supreme Court of Colorado. Jan. 8, 1906.) 1. APPEAL AND ERROR — PARTIES – SEPARATE APPEAL.

Under Mills' Ann. Code, $ 400, authorizing à separate appeal, and providing that for the purposes of appeal the party appealing shall be permitted to use the name of all persons against whom judgment was rendered," where judgment was rendered in the district court against the principal and suretics on a bond given to carry the case by appeal from the county to the district court it was not necessary for

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