i68
THE GREEN BAG
would not affect the rights of the candidates, which could still be determined by subse quent contest or other proceeding before the proper tribunal; that it had the effect merely of changing a rule of evidence; that is, it imposed the burden of instituting a proceed ing to try the right to the office on one candidate instead of another. It merely determined which candidate had a prima facie right to the office. In other words the court did not pretend to say that the party to whom it caused a certificate of election to be issued had a good right or title to the office. Confessedly upon a contest before the legislature or other tribunal it might develop that the certificate of election had been issued in compliance with the mandate of the court to a candidate who failed to receive a plurality of the legal votes. It will be remembered that the purpose for which the court exercised its extraordinary juris diction in issuing its injunction before the election was to prevent if possible a defeat of the will of the people by fraud and vio lence intended to result in certain candidates appearing to receive a plurality of the votes and thereby becoming entitled to certificates of election when in truth they received less than a plurality. How is this peril removed when the court itself without any complete or final judicial inquiry arbitrarily causes
not only the fraudulent but also the legal votes of whole precincts to be disregarded and certificates of election to be issued to persons other than those who would, but for the court's interference, receive them in due course of law, and whose right or title to the certificates or to the office the court does not have the power nor does it even pretend to prejudge? When such inherently arbitrary action by the court results in changing or determining the polit ical complexion of a legislative body, of the court itself and of a governor, how long will the court be permitted to remain outside of the arena of politics? If we must choose in this matter between the peril of fraud at the polls and the peril of such exercise of power by the court, surely few will hesitate to choose the former. .The action of the supreme court of Colo rado relating to the late election is, as the writer believes, one illustration among many to be found in the reports showing how desirable it is that there should prevail a more distinct and historically correct con ception of the function of the judiciary. We are prone to lose sight of the reasons for the limitations upon its power, which the great statesmen of earlier days conceived to be of first importance. DENVER, COL., Feb., 1905.
