People ex rel. Amos v. Burrell

36 Colo. 444

• Court: Supreme Court of Colorado
• Decided: January 15, 1906
• Docket: No. 5705
• Status: Published

Opinion

Mr. Justice Bailey

delivered the opinion of the court:

The complaint in this action alleged that Rocky Ford was a city of the second class and that in the election held therein on the 4th day of April, 1905, for the purpose of electing aldermen from the second ward, plaintiffs in error received the greatest number of votes cast for such offices in such ward; that, notwithstanding this, defendants in error have usurped and intruded into such offices and are exercising the duties thereof; and praying for "judgment of ouster against respondents and that relators he placed in possession of such offices.

• To this complaint a demurrer was filed and the contention was and is that the complaint is defective in that it fails to show that relators received a majority of all of the votes cast in the entire city.

The trial court sustained the demurrer and the . matter comes here on error.

The question involved herein was disposed of in Dunton et al. v. People of the State of Colorado ex rel. Aikin et al., 36 Colo. 128, just decided.

The judgment is reversed and the cause remanded with instructions to overrule the demurrer; and if the matter is further litigated it will be for the sole purpose of determining as to who, according to the official canvass, received the greatest number of votes cast in the second ward for aldermen.

Reversed.

Chief Justice Gabbert and Mr. Justice Goddard concur.