concurring.
I concur most cordially in the argument and conclusion of Mr. Justice G-abbert upon the controlling question involved in this controversy, and in the resulting reversal of the judgment below. I desire, however, for reasons that will later appear, to submit a few additional suggestions.
Judge Gabbert has demonstrated beyond a reasonable doubt the fact that § 2162, Mills’ Ann. Stats., means what it says. And that the failure of the national and state candidates, named on the two tickets in controversy, to accept the nominations within the statutory period, resulted in removing them as such candidates and leaving vacancies upon those tickets.
The industry and research of counsel for respondents failed to discover a single authority announcing or intending to announce a conflicting view. The case of People v. Kaiser, 11 N. Y. Supp., cited by them, is, as demonstrated in the principal opinion, based upon a wholly different statute. That court, which is not a court of last resort, is not interpreting a statute similar to "the one under consideration here. So far as we are advised, New York has no statute upon the subject covered by this provision. In that state candidates’ names by petition are not required to file a written acceptance within a given time, or at all; nor is the failure so to do expressly made equivalent to a “declination,” and a resulting vacancy created by operation of law. The New York case relied on is, therefore, not the slightest authority in this cause for any purpose.
I cannot pass silently by the intemperate attack, covered by motion and affidavit, upon three members of the court, including myself, for sitting in this cause. And, under the circumstances, I consider the *40matter of sufficient importance to place in enduring form and as a guard against future misunderstanding or misstatement, a few of the reasons controlling my action and the action of my associates in the premises.
My name and the names of those associates were originally upon both of the tickets held illegal and stricken from the official ballot by our own decision. According to the view of respondents, and under the decision of the court below, our names were still a part of those tickets and lawfully entitled to be certified upon that ballot. Had we, therefore, refrained from sitting in the.cause, the large vote that would doubtless have been polled for those tickets would have been placed to our credit. Therefore, from the standpoint of respondents and under the judgment of the trial court, our decision was directly inconsistent with and inimical to our own personal interest.
Mr. Justice Gabbert in the principal opinion has demonstrated beyond successful contradiction that none of the names of the national or state candidates were legally upon those tickets. And he has'given cogent reasons in support of his conclusion that the three members of this court referred to, were, in law, disinterested parties, and entirely competent to act. The correctness of that conclusion is strongly sanctioned by the further fact that not only were we no longer candidates upon those tickets, but no attempt was made to substitute. other candidates thereon in our places. If, however, under any view of legal or judicial ethics, an interest could be imputed to us, still I maintain that, consistently with oaths of office and the performance of our official duty, we could not, under the circumstances, have refrained from finally , participating in the decision.
Hoping that the remaining members, constituting a majority of the .court, might agree, and re*41strained by a feeling of delicacy; we declined to act in tbe first instance. Tbe court had undoubted jurisdiction, but two of its members exercised their statutory discretion against proceeding to review tbe judgment before us, and no order of any kind was entered.
We then found ourselves confronted with tbe following conditions: tbe trial court bad sentenced tbe secretary of state to jail for contempt, because, in tbe performance of bis plain statutory duty, be declined to obey its erroneous judgment. That court had then supplemented its judgment by directing tbe county clerk and recorder, pursuant thereto, to certify and tbe Smith-Brooks Company to print tbe two illégal tickets upon the official ballot.
Thus a ballot illegal in one respéct as to tbe entire state, and in another respect as to tbe city and county of Denver, and counties attached thereto' for legislative purposes, comprising almost one-third of tbe voting population of the state, would have been furnished to tbe people. In so far as the presidential electors, tbe two congressmen, and tbe entire state ticket, were concerned, tbe action of tbe trial court would not have been more illegal if tbe judge himself bad chosen another set of candidates and ordered them upon tbe official ballot. And in so far as tbe city and county of Denver was concerned, tbe local official ballot would have been further vitiated by bis supplemental order to tbe two parties named, in relation to tbe preparation and printing thereof. Tbe latter action would inevitably have led to an election contest, no matter which party succeeded, provided the vote in Denver affected tbe result; such contest being based upon tbe alleged invalidity of tbe entire ballot. And tbe former action would, with equal certainty, have resulted in an election contest against tbe presidential electors and all of the state candi*42dates, had the candidates upon the two illegal tickets been successful, and the votes cast for those tickets been sufficient to change the result:
It is not necessary to speculate touching the probable outcome of those election contests. For present purposes, I need not go into the question of how far the manifestly erroneous decision of a nisi prius state court would be regarded as binding in connection with such • an attack upon presidential electors. This court might possibly have considered itself precluded by a certain principle of law, from collaterally holding invalid the decision of the lower court, and rejecting the ballots cast for the two illegal tickets. But it is exceedingly doubtful if the federal courts, in so far as they might have had jurisdiction, would have given that decision similar controlling effect.
Nor is it essential for me to suggest that the national house of representatives would, if so disposed, have made short shrift of the decision in question, in a contest before that body against the two congressmen upon these two illegal tickets.
This court is the sole forum for the trial of election contests relating to its own members. Three of the present judges appeared as candidates upon the illegal tickets. The election contests against them would, therefore, have been tried by the remaining four justices. And in the event of an equal division, not an improbable contingency, the determination of those contests would have been indefinitely postponed. The title of the three justices changed would have been correspondingly clouded, and the performance of their official duties, seriously embarrassed.
An important additional consideration, not to be forgotten in this connection, is, that voters have a right' to assume that all candidates and all tickets upon the official ballot are lawfully there. An un*43lawful ticket on that- ballot is a deception and a fraud upon them. A fact also worthy of remembrance is, that the striking off of the illegal tickets in this instance did not interfere with the electors voting for the candidates designated thereon; as those candidates were also named for corresponding places on another ticket upon the official ballot. .
The questions involved and which this court was called upon to consider were, therefore, purely and exclusively publici juris. They did not relate to private property or to private interests. They were not pecuniary or commercial in any sense. On the contrary, they dealt in the broadest and most material manner with public governmental affairs of both state and nation.
We have no constitutional or statutory provision relating to or in any manner affecting the status of a justice of this court in a cause where he may have a personal interest, direct or contingent. The subject is considered with reference .to district and other nisi prius judges. And efficient statutes provide for calling in other judges or granting a change of venue in such cases. But no such provision exists touching, a similar emergency here. Hence a justice of this court interested in a pending cause occupies a different position from a judge of a lower court possessing a similar interest. And decisions made by us under such statutes, dealing with the status of trial judges, "obviously cannot be analogous or controlling as- to this court. In all cases of original jurisdiction here, the interest of a single judge might render a. decision impossible, and deny the litigant his constitutional right to a judicial hearing.
-True, the weight, of authority at the common law is against a judge presiding where he has a direct interest in the subject-matter of the controversy; although such eminent writers and distinguished *44authorities as Coke and Blackstone emphatically reject the- rule; and although everywhere both in this country and England, judges are continually sitting in contempt cases even where the offenses tried are against themselves.
But examination of the common law authorities will show that in nearly or quite all of the cases considered, the interested jurists presided over courts where a disinterested judge of co-ordinate or inferior jurisdiction could have been called in' as a substitute, or the objections could have been removed by a change of venue. I have found no case where the question arose under circumstances at all similar to those here presented, and where no 'statute met the emergency.
Moreover, contingent, remote or problematical interests are rarely treated as disqualifying: “A remote or contingent interest will not affect the qualification of a judge, nor is it sufficient that he may be bound or obligated in the same manner as a party to the suit, that his title to land may be affected by the suit pending before him, that it is involved in another suit in his court in which the same legal questions may arise, or that he owns land on a stream next below the plaintiff who is suing to enjoin the pollution of the stream.”—23 Cyc. 579.
And again, citing Duncan v. McCall, 139 U. S. 449:
“A court may determine the validity of a statute, although the decision involves the validity of other statutes prescribing the salary, term and qualifications of the judges composing the court.”—23 Cyc. 579.
But, notwithstanding the latitude thus recognized, no one could deplore more than I, the necessity for a judge to preside where he has an interest-,, even though the same be merely contingent or re*45mote. And no one would more strenuously condemn a" judge, who, unless compelled by overpowering necessity, would consent to preside under such circumstances.
But there are times, fortunately rare, when a refusal to act, prompted by a refined sense of propriety or delicacy, would be little less than criminal. And such, in my judgment,, conceding for the purposes of the argument that we had an indirect or contingent interest, would have been a refusal by us to participate in the decision under consideration.
I have shown that the questions presented for determination were public questions; that the validity of an election affecting the national and state governments was in the balance. And that this court was therefore called upon to discharge a solemn public duty of the gravest import. To have permitted the official ballot to go out vitiated by the infirmities under consideration, with all of the possible consequences, would have been a gross betrayal of the trust reposed in us. It would have been an act of omission that ought to have subjected us to the severest condemnation of all good citizens, lawyers as well as laymen. Considerations ■ of delicacy or propriety growing out of our contemporaneous candidacy for office, were resistlessly swept away by grave exigencies involving the public welfare.