People v. Lindsey , 80 Colo. 465 ( 1927 )

On Rehearing. Respondent's chief reliance for a rehearing is based upon the proposition that this court erred in remanding the case to the trial court with instructions to enter judgment of ouster, and that by so doing we have denied respondent his day in court and deprived him of his property, without due process of law, in violation of the 14th Amendment to the federal Constitution.

Respondent states that we overlooked that portion of the original record where the trial court said no defense was necessary. This part of the record does not appear in either the printed abstract of the record nor in the supplemental abstract filed by respondent. By rule 36 it is provided that if anything necessary to a determination of the case is omitted from the abstract it may be supplied in a supplemental abstract.

While we are not required to look beyond the printed abstracts, we did, however, consult the original record, and did not overlook the portion thereof to which our attention has been called. The record discloses that after all the testimony had been introduced, relators moved that the ballot boxes in precinct 6, district J, be opened, and objection being made the trial court said, "The evidence in this case discloses that there was fraud committed in this precinct. That has not been disputed up to this time * * *." The objection was overruled and the boxes in that precinct ordered opened, which was done, and the recount was made.

Thereupon the parties stipulated that either party might open any ballot box in any precinct in the City and County of Denver, and this was followed by the opening of all the remaining ballot boxes, 210 in number, and the ballots therein recounted. Later, and after some further proceedings, the relators moved to reject the returns, certified by the election commission, and the entire vote cast in precinct 6, district J, for the candidate for juvenile judge.

When the trial court observed that the evidence of fraud had not been disputed, the defendant made no suggestion at that time that he had, or would introduce, any evidence then or thereafter to contradict the evidence of fraud.

When the motion was presented, by relators, to reject the entire vote of this precinct, no objection, to the presentation of the motion at that time, was made by respondent, and no suggestion was then made by him that he had any evidence, or desired to introduce any, before the motion should be heard, or that if the motion should be sustained he would desire to introduce evidence to dispute the evidence of fraud.

The respondent could not know that the court would overrule the motion, and he might well have assumed, in view of the court's statement that fraud had been established, the motion would be sustained, especially so in view of this court's holding in Vigil v. Garcia, 36 Colo. 430,87 P. 543. For the purpose of the hearing of the motion the respondent occupied the position of having rested his case on the evidence already submitted, and taking a chance on the ruling of the court. The ruling, however, was favorable to defendant and the motion of relators was denied.

Then counsel for respondent offered to place Judge Lindsey and Mr. Francis upon the witness stand to testify for the sole purpose of refuting the testimony of the witness Unter, as to any participation of Lindsey and Francis in the alleged fraud, and to vindicate the character of Judge Lindsey. This evidence was not again offered, nor was any other or further offer of evidence made at that or any other time, and no intimation made then that respondent at that or any other time had or would introduce evidence to contradict the evidence of fraud.

As pointed out in the original opinion, this offer of evidence was rejected because the court held that the offer was premature.

After some further proceedings the relator rested, and the court proceeded with its findings to the effect that respondent was elected by thirty-five votes in excess of the votes cast and counted for relator Graham. It was at this point the court remarked that no defense was necessary and respondent then moved for judgment, which was granted.

It is true we did assume, but not erroneously as respondent contends, that respondent had rested his case, and did not desire to introduce any further proof. After a careful reading of the record in this case we cannot escape the conclusion that respondent had no evidence which he wished to introduce upon the trial, other than that already mentioned, and the recount of all the ballots hereinafter referred to, and that he submitted his case upon the evidence then before the court.

In Schwanekamp v. Modern Woodmen of America,44 Mont. 526, 120 P. 806, the plaintiff sued upon a benefit certificate. The case was tried to the court without a jury, and at the close of plaintiff's case the defendant moved for judgment which was granted, judgment accordingly and plaintiff appealed.

The court said: "The motion interposed by the defendant amounted to a submission of the case upon the evidence introduced by the plaintiff, and it is of little consequence by what name it was designated, or whether any grounds were specified. The court properly treated it as a submission of the entire case for decision upon the evidence then before it."

It has at no time, either in the oral argument or in respondent's brief, been suggested that respondent had any evidence which he wished to introduce to dispute or contradict the evidence of fraud or misconduct, or that he had any witness which he wished to call upon the stand for that purpose.

It is not even intimated in the petition for rehearing that if the case is sent back for a new trial they can or will introduce such evidence, and they failed to point out or indicate the kind or character of the evidence they would offer, if any.

Furthermore, and aside from the foregoing, the burden of proof was upon the respondent in the trial court, and not upon the relators. We have held, in proceedings of this character, that the burden is upon the respondent to prove his right to the office by a preponderance of the testimony. People v. Owers, 29 Colo. 535,69 P. 515; People ex rel. v. Stratton, 33 Colo. 464, 81 P. 245;Lyons Estes Park Toll Road Co. v. People ex rel.Sprague, 29 Colo. 434, 436, 68 P. 275.

In People v. Owers, supra, Campbell, C.J., speaking for the court, said: "The burden of proof in quo warranto proceedings instituted by the state is always upon the defendant, to establish his right to hold and enjoy the office constituting the subject matter in controversy; and we think it is also true that defendant must with particularity allege all necessary facts, showing not only that he was eligible to the office at the time of his election, but he must also allege and prove all essential facts, showing a continuing right to hold that office down to the time of the institution of the proceedings to oust him. * * * It must appear that defendant's alleged right to hold is clearly established by him, or he will be removed."

In the Lyons case, supra, we held: "In quo warranto the form of the issue as between the state and the respondent is not like that in ordinary civil proceedings. In the latter the burden rests upon the plaintiff to allege and prove his title to the thing in controversy; whereas the rule is reversed in cases of quo warranto, and the respondent, or defendant, is required to disclose his title to the alleged franchise, and if in any particular he fails to show a complete title, judgment must go against him."

In the note to State, ex rel. Dawson v. City of Harper, Ann. Cas. 1917B, at page 467, stating the majority rule, it is said: "In a majority of jurisdictions the rule still obtains that in a quo warranto proceeding or an action in the nature thereof, the burden of proof is on the respondent." Citing cases in support thereof from England, Canada, Alabama, Arkansas, the Colorado cases above cited, Connecticut, Delaware, Illinois and many others.

In People v. Baldridge, 267 Ill. 190 (108 N.E. 49) at page 195, it was said: "In a long line of decisions this court has held that in proceedings by information in the nature of quo warranto the defendant, if he justifies, must set out his title specifically and must show on the face of the plea that he has a valid title to the office; that the people are not called upon to show anything; that the entire onus is on the defendant, and that he must not only show by his plea, but prove, that he has a valid title to his office, and if this proof is not made the people will be entitled to judgment of ouster. * * * This is also the rule in other jurisdictions. The form of the issue in quo warranto between the state and the respondent is not like that in other civil proceedings, but the defendant is called on to show title by his plea, which presents an issue of fact, and the burden of proof is upon him to establish it."

In State, ex rel. v. Port of Tillamook, 62 Ore. 332, (124 P. 637, Ann. Cas. 1914C, 483), at page 336, the court said: "In an action partaking of the nature of quo warranto, in the absence of any legislation or controlling consideration to the contrary, the rule that the onus probandi is upon the respondent applies, and the defendants must prove the existence of the corporate franchise which they are alleged to have usurped, and their title to the offices, with the wrongful claim or usurpation of which they are charged. State, ex rel. v. Sharp,27 Minn. 38, 6 N.W. 408; 3 High, Ex. Legal Rem. § 629. We find that in ordinary civil actions the burden rests upon the plaintiff to allege and prove his title to the thing in controversy. In quo warranto proceedings we find the rule reversed, and it rests upon the respondent to show his title to the office or franchise in dispute. If he fails to show complete title, judgment is rendered against him."

In 4 Dillon on Municipal Corporations (5th Ed.) section 1554, the author says: "In quo warranto the court will go behind the certificate or commission, and inquire into the validity of the election or appointment, and decide the legal rights of the parties upon full investigation of the facts."

In section 1555, Mr. Dillon says: "In a proceeding by information in the nature of a quo warranto the defendant must either disclaim or justify. If he disclaims, the state is at once entitled to judgment. If he justifies, he must set out his title specifically. It is not enough to allege generally that he was duly elected or appointed to the office. He must plead facts, showing on the face of the plea that he has a valid title to the office. The state is not bound to show anything."

In People v. Thacher, 55 N. Y. 525, 14 Am. Rep. 312, quoted in People v. Baldridge, supra, the court said: "The people are here the ultimate source of the right to hold a public office; and now, as heretofore, when the right of a person exercising an office is challenged in a direct proceeding by the attorney-general, the defendant must establish his title, or judgment will be rendered against him. * * * The possession of the office was not in this action evidence of his right. The burden was upon him to show by affirmative evidence that his possession was a legal and rightful one."

In People v. Mayworm 5 Mich. 146, it was said: "The rule is well settled, that where the state calls upon an individual to show his title to an office, he must show the continued existence of every qualification necessary to the enjoyment of the office. The state is bound to make no showing, and the defendant must make out an undoubted case."

State, ex rel. Wallen v. Hatch, 82 Conn. 122,72 Atl. 575, was an action in quo warranto brought by the relator against respondent to determine the title of the respondent to the office of school committeeman, and the court said: "In quo warranto proceedings the burden is upon the respondent to show a complete title to the office in dispute, otherwise judgment of ouster must be rendered against him."

In People v. Clayton (4 Utah, 421, 436) 11 P. 206, at page 212, the court, quoting from High on Extraordinary Remedies, § 713, said: "The people are not bound to show anything, and the respondent must show, on the face of his plea, that he has a valid and sufficient title; and if he fails to exhibit sufficient authority for exercising the functions of the office, the people are entitled to judgment of ouster. * * * he should allege such facts as, if true, invest him fully with the legal title; otherwise he is considered as a mere usurper."

In Lockhard v. People, 65 Colo. 558, 178 P. 565, Mr. Justice Teller, rendering the opinion of the court, said: "The rule is that the state has no burden to assume in the first instance. The complaint or information is a challenge to the defendant to show by what right he is exercising a franchise or holding office, as the case may be."

We cited with approval in that case People v. CanalCo., 23 Ohio St. 123, wherein that court said: "The office of an information in the nature of quo warranto is not to tender an issue of fact, but simply to call upon the defendant to show its warrant or charter for exercising the privileges or franchises named."

In the note to State v. Harper, supra, there is citedDunton v. People, 36 Colo. 128, 87 P. 540, as holding that where the action is brought on the relation of a claimant to the office the burden of proof is on the relator, but that case does not so hold. This court in that case expressly states, "It is not necessary for us to determine what the true rule is as to the burden of the proof in such cases."

No distinction, as to this rule, can be made between a case where the district attorney institutes the proceeding upon his own information in the name of the people, and where the proceeding is instituted upon the complaint of a private party where the district attorney neglects or refuses to act. Our statute provides, among other things, that the action may be brought by the district attorney in the name of the people; that in case the district attorney shall neglect or refuse to bring the action upon the complaint of a private party, such action may be brought by such private party, upon his own relation, in the name of the people of the state; and further provides that "in every such case judgment may be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice shall require."

In the instant case it appears that the relators applied to the district attorney to institute the action upon their complaint as relators; that he refused so to do; that they then applied to the district court for permission to bring the action upon their own relation in the name of the people, which was granted, and thereupon the action proceeded upon the relation of the parties in the name of the people. The sovereign people are here represented by private relators, instead of by the district attorney, and therefore the rule with regard to the burden of proof applies to the same extent as it would apply if the action had been brought by that official.

It necessarily follows that the respondent, having offered no proof to show his title and right to the office, no judgment other than ouster could properly be rendered.

Respondent claims that we overlooked his verified answer in which he avers that mistakes and irregularities of judges and clerks had occurred in numerous precincts at that election, and that he was entitled to offer evidence in support of those allegations.

After all the ballot boxes in all the precincts had been opened, and the ballots therein had been recounted, it was found that no fraud, mistakes or irregularities had occurred in any of the precincts, save the one in question here, and both parties centered the contest on that precinct. Counsel for respondent at the oral argument before this court stated that this precinct was the only one in controversy.

In their brief, counsel for respondent state: "Here every ballot box in the city of Denver was opened; every ballot was closely scrutinized; in many cases subjected to an actual microscopic examination; every questionable ballot was rejected; and yet the result arrived at by the election officials stood * * *. They now come into this court and concentrate their attack upon one precinct, J-6."

Respondent therefore not only had the opportunity to introduce evidence in support of his answer, but availed himself thereof by participating in the opening of the ballot boxes in all the precincts, and recounting the ballots therein.

Having consented to the opening of all the ballot boxes and the counting of the ballots and having conceded that precinct 6, district J, is the only one in controversy here, the respondent is certainly not in a position to now ask that this case be sent back to enable him to prove the allegations of his answer as to other precincts. But if that were done, respondent could not escape the record already made by him. When the court made its findings on all disputed questions, including every ballot cast in every precinct in the city, respondent excepted only to the ruling against him on 102 ballots marked in ink below the line, and the ruling on the ballots marked in lead pencil which resulted in loss of 52, and moved for judgment. He thus, in any event, waived his right to introduce evidence on every point decided against him, save as to said 154 ballots. We reversed the judgment only as to precinct 6, J. If that goes out, and every other ballot claimed by respondent is counted for him, he failed of election by more than 250. It thus clearly appears that his right to the office depends solely upon precinct 6, J. Were he entitled to introduce further evidence, he would thus be limited to evidence touching that precinct.

Counsel for respondent at the oral argument before this court and in their brief argued the case upon the assumption that without the testimony of Unter there was no testimony which would justify excluding the vote cast in this precinct. In this we think they are mistaken. We might wholly disregard the testimony of the witness Unter and still we find that the evidence was ample to sustain relators' contention that the evidence of fraud or misconduct on the part of the judges and clerks of election in this precinct was sufficient, being uncontradicted, to exclude the vote in that precinct.

There is no merit in respondent's contention that by ordering judgment of ouster we have deprived him of his property without due process of law. There is no property in a statutory public office. The Legislature created the juvenile court, and the Legislature can abolish it. There is no contractual relation between the state and the incumbent of an office. If the office be abolished the incumbent can have no recourse to the state for the salary. In the instant case the question of salary is not involved. The only question is as to the right of the respondent to hold the office.

In 12 C.J. p. 1213, § 989, it is said: "The rule supported by the great weight of authority is that a public office is not property within the sense of the constitutional guaranties of due process of law. An officer therefore is not denied due process of law by the abolition of his office before the expiration of his term, of by his removal in the manner prescribed by statute."

We think this question is definitely settled in Sanchezv. United States, 216 U.S. 167, 30 Sup. Ct. 361,54 L.Ed. 432. Mr. Justice Harlan, in delivering the opinion of the court, said: "The appellant, an inhabitant and citizen of Porto Rico, seeks to recover from the United States the value of a certain office held by him in that Island before and during the war with Spain, of which office, it is alleged, he was illegally deprived by the United States. A demurrer to the complaint was sustained and judgment given for the United States, the opinion of the Court of Claims being delivered by Chief Justice Peelle. * * * In the year 1878 the claimant, Sanchez, purchased from one Florenzio Berrios y Lopez, for a valuable consideration, the office known as 'Numbered Procurador (Solicitor) of the Courts of First Instance of the capital of Porto Rico."

A provisional patent was issued to him, and from that date he exercised all the rights and privileges belonging to the office, until he was deprived of it on August 31, 1899.

Justice Harlan, in concluding his opinion, said: "It is clear that claimant is not entitled to be compensated for his office by the United States because of its exercise of an authority unquestionably possessed by it as the lawful sovereign of the Island and its inhabitants. The abolition of the office was not, we think, in violation of any provision of the Constitution, nor did it infringe any right of property which the claimant could assert as against the United States. See O'Reilly de Camara v.Brooke, 209 U.S. 45, 49. The judgment of the Court of Claims must be affirmed."

We deem further discussion unnecessary. Rehearing denied.

En banc.

MR. JUSTICE BUTLER not participating.