
    [No. 3866.]
    Dickinson v. Freed.
    1. Elections—Ballots—Emblems.
    Where tlie state convention of tlie Democratic party met and made nominations and adopted an emblem, and tbe county convention of tbe same party met and made nominations for county officers and adopted a different emblem, and because tbe county emblem was different from the state, tbe secretary of state and county clerk refused to print it on tbe ballot, and tbe ballot was printed witb tbe words Democratic ticket at tbe bead in two places, and opposite one tbe emblem adopted by tbe state convention, and tbe word Democrat was printed opposite tbe county nominees as well as opposite tbe state nominees, and instructions were sent to all the precincts in tbe county that a cross opposite tbe emblem adopted by tbe state convention would count as a vote for tbe county Democratic, nominees; ballots voted witb a cross opposite tbe emblem were properly counted for tbe county Democratic nominees.
    2. Elections—Mistake in Ballot—Estoppel.
    If tbe county clerk makes a mistake in designating a candidate on tbe ballot as tbe nominee of a political party represented by an emblem, and tbe opposing candidate having notice of sucb mistake in time to have tbe mistake corrected, be will not be permitted to lie by and allow voters to be misled thereby, and afterwards take advantage of sucb defect to defeat tbe expressed will of a majority of tbe voters.
    
      Appeal from the County Court of Lincoln County.
    
    Mr. T. J. Edwabds and Messrs. Wells, Taylob & Taylob, for appellant.
    Messrs. Talbot, Denison & Wadley, for appellee.
   Mb. Justice Goddabd

delivered the opinion of the court.

At the election held on November 2, 1897, George D. Freed, contestee, was a nominee of the Democratic party of Lincoln county, for the office of treasurer; and John P. Dickinson, contestor, was a candidate for this office on the Republican ticket. Upon a canvass of the vote it was found by the board of canvassers that Dickinson had received 156, and Freed 190, of the votes cast; and Freed was declared elected. Thereupon Dickinson instituted this proceeding in the county court of Lincoln county, to contest the right of Freed to the office, upon the ground that the judges of election counted, and the board of canvassers canvassed, sixty-two votes for Freed to which he was not entitled. It appeared upon the trial that the state convention of the Democratic party nominated a candidate for judge of the supreme court, and chose as its emblem the rooster and a bust of William J. Bryan; that the county convention of the Democratic party which nominated Freed adopted as its emblem a rooster. The secretary of state refused to allow the use of the emblem selected by this convention because it had been previously selected by the state convention; and in certifying the list of nominations to the county clerk of Lincoln county, included as the only emblem of the Democratic party the rooster and bust of Bryan. On the official ballot, as printed, the words “Democratic Party” occurred twice, once on the fifth line from the top, having as an emblem the rooster and bust of Bryan; and the other on the twelfth line, with no emblem whatever. Opposite the name of contestee the word “Democrat” was added, thereby designating the party by which he was nominated, as provided in section 18 of the “Act in relation to elections,” as amended in 1894. It also appeared that the county clerk prepared and printed the ballot in this form, leaving off the emblem adopted by the county convention because of the action of the secretary of state, and of an opinion of the attorney general recently theretofore published, to the effect that the emblem adopted by the state Democratic convention was the official emblem of the party, and should be recognized as such, notwithstanding any action taken by subordinate conventions of the party; and with the understanding that their nominees were represented by such emblem, and that a cross placed opposite to it would vote the entire state, county and precinct nominations of the Democratic party; that he informed the eontestee and other' nominees upon the Democratic ticket that he had left the rooster emblem off of the ticket for these reasons, and that a cross opposite the words “Democratic Party” and the emblem of the rooster and bust of Bryan would result as above stated.

It further appears that, in pursuance of the information given them by the county clerk, the eontestee and others sent instructions to all the precincts in the county that a cross marked in the space opposite the bust of Bryan and rooster would vote for every candidate on the ballot nominated by the Democratic party. It is admitted that sixty-two of the ballots thus marked were counted for the eontestee, thus giving him a majority of thirty-four votes over the contestor. While the statement of contestor specifies as grounds of contest the casting and counting of illegal votes in favor of ■eontestee, and the rejection of legal votes offered for the contestor, upon the trial these grounds of complaint were withdrawn, and the contestor stood upon the sole proposition that “legal votes, votes of qualified electors in the county were counted for eontestee when in fact and in law they were not cast for him for this office.” In other words, that the sixty-two ballots in question, although east by legal voters, should be rejected because, as a matter of fact, the emblem marked thereon had not been adopted by the Democratic convention of Lincoln county, notwithstanding upon the face of the ballot, as prepared and printed by the clerk, the emblem appeared opposite the name “Democratic Party;” and the eontestee, in the body of the ballot, was designated as a nominee of that party.

As we have seen, the words “Democratic Party” appeared twice at the top of the ballot, with this emblem opposite one of these party names, while in the body of the ballot is added the word “Democrat” opposite the name of eontestee. The same designation appears opposite the name of supreme judge and district attorney, in regard to both of whom it is conceded that the designation was sufficient to inform the voter that they were among the list of nominations represented by the emblem, and could be voted for by marking a cross opposite thereto, and in fact were so voted for by these identical ballots. From the face of the ballots, therefore, the voters might well have understood that contestee, as a nominee of the Democratic party, was represented by the emblem, and could be voted for in like manner.

In addition to this it is shown that the voters throughout the various precincts were instructed that a mark placed opposite this emblem would be counted as a vote for contestee and his conominees, for county officers on the Democratic ticket. These facts, when viewed in the light of the interest that the voter natually takes in the administration of home affairs, and in the selection of persons to fill the local offices, leaves no doubt of the intention of the voters who cast these ballots to vote for the contestee.

If it be conceded, therefore, as claimed by contestor, that the nominees of a subordinate convention are not entitled to the emblem adopted by the state convention of a party, without expressly adopting the same, and that the clerk erred in designating contestee as a nominee of the convention of the party to which the emblem belonged, it by no means follows that the ballots in question were not correctly canvassed and counted for him. As was said in Young v. Simpson, 21 Colo. 460:

“ The principal object of the rules of procedure prescribed by statute for conducting an election is to protect the voter in his constitutional right to vote in secret; to prevent fraud in balloting and secure a fair count. Such rules are usually held to be directory as distinguished from mandatory, and unless the statute declares that a strict compliance is essential in order to have the ballot counted, the courts will not undertake to disfranchise any voter by rejecting his ballot, where his choice can be gathered from the ballot when viewed in the light of the circumstances surrounding the election.”

Without determining the question whether the county clerk erred in designating the contestee as the nominee of the convention of the party to which the emblem belonged, it is sufficient to say that the mistake, if it was one, was known to the contestor and his conominees on the Republican ticket several days preceding the election, and in ample time to have had-the mistake corrected ; and under the ^doctrine announced in the case of Allen v. Glynn, 17 Colo. 338, they should have availed themselves of such objection in seasonable time; and will not be permitted to lie by and allow voters to be misled thereby, and afterwards take advantage of such defect, and defeat the expressed will of a majority of the voters, as here attempted. We adopt the language as quoted in that case from Kellogg v. Hickman, 12 Colo. 256, as peculiarly applicable to this case:

“ To overthrow the expressed will of a large number of voters for no fault of theirs, as we are asked to do, would be to defeat the purpose of all election laws, which is to obtain a full and fair expression of the wishes of the voters.”

We are satisfied that the judgment of the court below is correct, and should be affirmed; which is accordingly done.

Affirmed.

Campbell, C. J.,

concurring specially.

While much impressed with the argument of counsel for contestor that the ruling of the trial court virtually ignores sections of the statute, in form mandatory, and is based upon a construction which may permit votes .to be cast in disregard of the express directions of the statute, and to be counted for a candidate for whom the voters did not intend to cast their ballots, still, the decision of this court in Allen v. Glynn, 17 Colo. 338, if followed, sanctions the action of the county court.

From the majority opinion in that case it would seem that the failure of the opposing candidate seasonably, and prior to the election, to object to the certifying and printing of an im proper ticket on the official ballot, whose presence there re suits in the alleged thwarting of the voters’ will, estops the unsuccessful candidate, after the election, to take advantage of such mistake. Were the question res nova in this jurisdiction, I should, to say the least, long hesitate to adopt the views of the majority on this particular point, for the reasons so cogently expressed by Mr. Justice Helm in his dissenting opinion.

I may, in addition, say that while it should always be the aim of the courts to give full expression to the voters’ will, it is equally desirable to prevent fraud and secure a fair count. Moreover, it is apparent, to my mind, that the unseemly controversies under the Australian ballot act that have already sprung up, and will probably continue to incumber our court dockets, are the legitimate outgrowth of a looseness of construction of its provisions in which the legislature never intended the courts to indulge, even in their laudable zeal to ascertain and give effect to the electors’ will. Indeed, this desirable object can better be effectuated by an insistence upon a compliance with prescribed statutory conditions than by indulging in what is more or less an unrestrained speculation in each case that comes before the courts. But if the rule of stare decisis should ever be rigidly adhered to, it is in election controversies ; for in no class of cases, and for reasons apparent to any candid mind, are there stronger reasons for the strict application of the rule.

Believing, as I do, that a previous decision of this court, followed by courts in many of our sister states, is against the contentions of contestor, and further conceding that in the record, as certified up, effect seems to have been given to the will of the electors in casting the ballots in controversy, I vote for an affirmance of the judgment.  