Stephen v. Lail

Mr. Justice Burke

sitting as Chief Justice.

Mr. Justice Denison

delivered the opinion of the court.

The district court granted and dissolved a temporary injunction against the defendants in error, forbidding the election commission of the City and County of Denver to put the names of certain candidates upon the primary ballot of the Republican party at the coming election, and dismissed the bill. The plaintiffs below bring error and we are required.by the statute to determine the matter summarily. C. L. § 7574. The judgment must be reversed.

The defendants except Lail, Sopris and Davidson, members of the election commission, are candidates for committee men and committee women of the Republican party, by petition. The ground for excluding their names from the ballot is that ninety-seven of the petitions were insufficient because the affidavit attached to each, although sworn to, was not signed by the signers of the petition. The reason is good. . We are controlled by Cowie v. Means. 39 Colo. 1, 88 Pac. 485, where it is held that the failure of the petitioners to sign the oath required by the statute there under consideration rendered the whole proceeding void. That decision, which was rendered in 1906, must have been known to the legislature when they enacted the statute now under consideration, and they might have so drawn it as to avoid the force of that decision, yet they fitted the law which they were enacting more accurately to it than the law which was considered in the decision itself; moreover the nine other legislatures which have met since the decision have left it untouched. Against conditions like this the argument of executive, administrative or popular construction, which we are asked to consider, is of little weight. Neither do we think that the Attorney General is shown to have construed the statute so as to permit the omission of the signature to the oath. The forms which he prepared which are relied on to show his- construction indicate that he expected the affidavits to be signed and some of them are signed. An administrative construction, to be cogent, should be uniform.

The statute under consideration in Cowie v. Means provided that the voter signing the petition should “make oath that he is a voter, etc. * * *” C. L. § 7583. The present statute provides that the electors supporting the petition “shall make oath by affidavit thereto attached, etc. * * *” C. L. § 7536. Even though it were held that these latter words require a signature to the affidavit it might still be held that the words “make oath” do not, but when it is held that the words “make oath” do so require, a fortiori do the words “make oath by affidavit attached thereto.”

Before a situation like that here shown the arguments ab inconvenienti and for expediency cannot avail, and, since the case cited holds that because of failure to sign the oaths all the proceedings are void, we cannot escape the necessity of a permanent injunction without overruling that case, which we are unwilling to do. We are fortified in this conclusion by the fact that in a recent unreported case, Robinson v. People, No. 11,318, wherein this same question was raised, this court upheld the petitions which bore signatures to the oath, but not those which lacked them.

The judgment is reversed with directions to grant a permanent injunction as prayed as to the ninety-nine petitions concerning which defect was conceded in the court below, with the exception of the two so-called Luxford petitions which appear here to be sufficient.

Me. Chibe Justice Allen, Me. Justice Campbell and Me. Justice Whiteoed not participating. Me. Justice Adams dissents.