RESORT TO THE JUDICIARY the court has the jurisdiction claimed for it, the issuance of the writ of injunction under the circumstances might well be con sidered of doubtful justification. In order to call for the exercise of the extraordinary prerogative power of the court not only must "the liberties of the people" be en dangered, but the danger must be exigent.1 Let us test the circumstances of the case by that requirement. The danger if any, consisted in the possibility of the will of the people being defeated by the causing of a candidate or candidates to appear to have received a plurality of the legal votes who in fact did not, and thereby to become en titled under the statutes to a certificate of election and to hold office until by the methods provided by the constitution or by legislative enactment the right to it is dis proved. But what constitutes the exigency of such a danger? It is not in the fact that the law provides no remedy except by appeal to this extraordinary prerogative jurisdiction of the supreme court. The law does provide a remedy by contest or by quo warranto proceedings. Neither does the exigency consist in the number of threatened illegal votes. 10,000 fraudulent votes will not create an imminent danger to the public liberties unless they change a minority into an apparent majority vote. On the other hand 100 or 10 or conceivably even one fraudulent vote may have that result. Fur thermore the court cannot anticipate the political judgment of the people. It cannot anticipate whether the popular vote will be evenly divided among candidates for the same office or widely divergent in its dis tribution. The constitution of Colorado anticipates and provides for the possibility of a tie vote for governor and other officers. Therefore how can the supreme court predicate in advance that there is not an exigency, and therefore refuse to issue its injunction when called upon to do so and 1 Wheeler v. Irrigation Co., 9 Colo. 248; Att'y Gen'l vs. R.R., 35 Wise. 425.
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when in any part of the state there is any threatened fraud whatsoever? In the recent Wisconsin case of State v . Houser * it is said : "It is not sufficient, however, that the question be publici juris, that it affect the liberties of the people, and that it be of sufficient public importance to move this court to exercise its original jurisdiction, but it must also appear that there is no other efficient and adequate remedy in order to call for the interposition of the equitable powers of the court. In this respect the same rule applies to this court as to trial courts. It is now to be considered whether the legislature has afforded another remedy." The Colorado legislature has provided a detailed and complete plan for the trial of contests over the right to office. Notwith standing this remedy afforded by the statutes, the court, having discovered, upon a partial and indeterminate investigation as an incident to its hearings upon contempt proceedings to which the candidates were not parties, that the election returns from certain precincts were tainted with fraud, ordered the canvassing officers to exclude such returns from its count and treat them as naught, and that certificates be issued to candidates having the highest number of votes after their exclusion. Observe that the entire returns from these precincts were ordered to be excluded from the count. No attempt was made to ascertain and separate or otherwise determine the number of legal votes. The court had previously declared the law to be that the canvassing officers had no discretion "to go behind the returns, to reject votes, or otherwise inquire into the validity or conduct of the election." 2 In consequence of the court's order certificates of election were issued to certain candidates who would not, except for the exclusion of such returns, have received certificates. In defense of this action it was said that it TOO N. W. Rep. 964. 1 Kindel v. Le Bert, 23 Colo. 398.
